Will Congress Amend FISA This Week?:
It looks like Congress might vote to amend FISA this week; the New York Times has the story here. I don't know the details, but it looks like the issue would be a narrow amendment to clarify that the interception of foreign-to-foreign communications are not covered by FISA. More when details are available. For my own views of how FISA should be amended, see my forthcoming article, Updating the Foreign Intelligence Surveillance Act.
I suggest that what you refer to as 'data-focused' surveillance might more usefully and accurately referred to as 'pattern-based' surveillance. Though you mention packet-switching and other technologies several times in your paper ("Updating the Foreign Intelligence Surveillance Act), I don't believe that the technology per se is really relevant. Instead, what I believe you're referring to is searching communications based on patterns, not identities. The rest of my comment will be based on that (hopefully accurate) assumption.
There are two important factors that I didn't notice any mention of in your paper. One is the difference between information obtained from foreign intelligence surveillance, and that obtained from law enforcement surveillance. Of critical importance (to the 4th Amendment) is to prevent the former (typically obtained with a lesser standard of proof for actions that may or may not be crimes, and may or may not involve U.S. citizens) and the latter (based on the much stricter standard of probable cause, etc.).
Second is the difference between targeted surveillance and 'fishing expeditions.' It seems possible, even likely, that intelligence operations sweep the world 'fishing' for useful tidbits of foreign intelligence information. But domestically, particularly from a law enforcement perspective, such 'fishing' runs flat up against the 4th Amendment. For the 'gray area' at issue here (international communications to/from the U.S.), broad 'fishing' surveillance must have some curbs.
This is where your two-track warrant may come into play. If the government wants to conduct foreign intelligence surveillance not targeted on an individual but in a domestic setting, it seems reasonable to require that this be done with a specific pattern defined. The government must get a pattern-based warrant, and in doing so, must make some kind of showing that there's reason to believe that communications exhibiting this pattern will likely pull in valuable foreign intelligence and likely NOT pull in private, protected communications. (This second part is vitally important.)
People generally have a view of government that is benign, even benevolent (and in no small ways, incompetent). They naturally get this feeling because the people in government are that way - few if any are nasty, aggressive, let alone evil. What people almost always overlook (or fail to appreciate in the first place) is that these 'nice' people, when operating collectively, almost invariably adopt patterns of behavior that can easily lead the worst kinds of abuses. Nowhere is this more true than in activities that stem from secret surveillance.
I'm not sure that it's possible to develop meaningful standards so that patterns can be used as the basis for warrants that still protect civil liberties. It's worth exploring, I suppose. But unless and until we can demonstrate this, I would strongly argue against any change to the present law. I would certainly vigorously oppose any idea of conducing the pattern-based surveillance without regulation.
What is the policy concern that suggests we need to "audit" foreign-to-foreign communications at all? If the call is from London to Paris, I don't see why it should make a difference if it happens to be routed through the US at some point. What is the abuse we need to protect against?
well, I don't really understand it, but according to the article, the audits are needed "to make sure that it has not ensnared any Americans." I think what it means is that it gets audited to ensure that its not abused.
What I'm wondering is if the real purpose of this law isn't to allow warrantless wiretapping of foreign based calls/emails to US numbers/email address that are automatically forwarded to another overseas number/email -- which would represent a very significant opportunity for abuse.
While there is little controversy in either party about legislation targeted against this "transit traffic," White House talking points have breathlessly drummed the urgency of enacting this legislation now, before the August recess, because of the extreme threat posed by handling these intercepts under FISA.
Even this gives the lie to the credibility of poor Alberto Gonzales. He literally swore in Senate Judiciary Committee testimony Jan. 18, 2007, in explaining the announced termination of the TSP, that "the country will not be any less safe." Gonzales repeated that assertion in a PBS interview, as well.
And the White House's idea that the administration -- i.e. Gonzales -- oversee themselves on this (rather than the FISC) is totally unacceptable.
Even if the changes make sense on the merits (and it sounds like they may well), I don't think Congress should be consenting to changing FISA until the Administration recognizes FISA as legally binding on them, complies with the law and accounts for their past violations. Follow the law first, then we can talk about changing it.
It seems odd that the Democrats are willing to amend FISA. On December 19, 2005, Attorney General Gonzales gave a press conference after the surveillance was revealed by the New York Times. He was asked, “ If FISA didn’t work, why didn’t you seek a new statute that allowed something like this legally?” He responded that they had discussed that with certain members of Congress and were advised, “that was not something we could likely get.” Cite. Makes you wonder what has changed.
International communication is different from domestic. I want our government to be sniffing around the world looking for plots against us and following suspected enemies. Just like I wanted the government to be spying on the USSR back in the day.
I think you misread Kelvin's post. He was referring to a NY-LA call which, by the miracle of modern technology, gets routed through, say, Montreal (or, better yet, satellite). Technology creates the potential for arbitrary loopholes in the 4th A or statutory protections.
I'm pretty sure everybody wants this.
Hypothetically, if all calls from new york city were routed through a Canadien server (not entirely that far fetched) and tapped (on the canadien side of the border) and the results shared with the u.s. gov.t presumably, not only would would-be terrorists get caught up, but also local drug dealers, tax evaders, corporate embezzlers, cheating husbands, the guy ordering pizza, etc..etc... the point being, once you open the spiget and it begins to flow, what incentive on earth would you have to then turn it off? And the NSA could very easily share its "intel" with the FBI, DEA, etc... once they have it (the conversation) and the phone number attached to it.
Under the 4th amendment, if Canada tapped into your call, but you were arrested here in the states, there normally would be no suppression remedy (that i am aware of), unless the canadien "cooperation" agreement (if it could be shown or even introduced into court, which would be doubtful with classified programs and states secrets) could be seen as some form of agency agreement, wherein a warrant would be required (that is, canada is seen as an agent or working for or on behalf of the u.s. law enforcement community). But say the DEA didnt get a warrant to bust the drug dealer based on the phone taps, but merely used the phone tap to then go surveil his house for a few weeks etc...and then arrest him or pull him over or seek a warrant. Again, once the intel is aquired, there is no telling how it could be used or by whom.
Are you okay with that Keith? What if every single call ever made in the us since 9/11 was subject to such international eavesdropping? Is there any limit to what is acceptable, so long as the gov.t claim's that the program has disrupted a potential terrorist plot or will in the future? In other words, how willing are you and how far are you willing to go to sell your right to liberty (liberty being a right of the people against the gov.t, that is, the right to be free from gov.t intrusion into your life) to the gov.t for the prospect of safety?
I for one do not like the idea or even the remotest of possibilities (which what i am discussing is) that our government could outsource the complete removal and undermining of the 4th amendment to an "ally" in the name of fighting a vague terrorist threat, especially when that ally is really only being a proxy for our own government and a loophole to do that which the supreme law of our land forbids. But i guess i am old fashioned like that.
The former scenario is less radical than the latter.
Clearly, things are moving fast. The story indicated that Pelosi, having met this morning with Bush, might press for a House vote on this as soon as tonight.
Chertoff's gut, I hear.
Seriously, if "the system is blinking red" again, then I can see the Dems' willingness to write a 6-month blank check. I would only hope that they're confirming the genuine nature of the threat with unofficial sources who are more reliable than Gonzales, Chertoff, Hayden, et al.
It now looks like the primary emphasis of the Democratic bill, like the adminstration's own proposal, is really on foreign-to-domestic traffic. There is a provision explicitly authorizing surveillance of foreign-to-foreign communications, but that non-controversial provision is buried in the story.
Given the knowledge that the FISA court order announced in January as a replacement for the TSP apparently was rejected later by another FISA judge, it is easier to understand the motivation for the legislation. (It also renders inoperative my snarky comment above about Gonzales' comments in January. Sorry, Fredo.)
As for the merits of the competing legislative proposals, I still don't know enough about the details to form an opinion.