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White House Official Answers Questions About New FISA Legislation:
Earlier today I spoke one-on-one for about 15 minutes with a senior White House official who participated in today's conference call, and who agreed to speak on the record about the questions I posed in my earlier post but didn't get to ask during the conference call. Here are the questions, along with the White House official's answers as paraphrased by me (or exactly as stated by the official when quotations are used).

  Here was my first question:
What is the meaning of "surveillance directed at" a person? If you're watching suspect A in Pakistan, and he starts speaking with known suspect B in the United States, is the surveillance "directed at" only A or is it now directed at both A and B?
  According to the official, this language is designed to codify the traditional intelligence community notion of having a surveillance "target." When the government has a "target," it tries to monitor all of that person's calls to which it is legally entitled. So in the case of watching suspect A in Pakistan who starts talking with known suspect B in the United States, the surveillance would still be directed only at A so long as the surveillance was designed to capture A's communications.

  I then asked the official what I think of as the Marty Lederman question: Doesn't this let the government watch people in the U.S. who just so happen to be communicating with foreigners? That is, doesn't it let the government use the "directed at" language to keep tabs on people in the U.S. so long as they are talking to people abroad?

  The official's answer was that this wasn't a realistic scenario in light of how intelligence investigations actually work. Under the legislation, the government's protocol for monitoring foreign communications has to satisfy the traditional minimization requirements of 50 U.S.C. 1801(h). See the new 1805A(5). The traditional minimization rules require the government to screen out and not use contents of collected communications that do not contain "foreign intelligence information" as defined in 50 U.S.C. 1801(e). This sets up two possibilities when the government is targeting someone abroad and that person is communicating with someone in the United States. Either the contents of those communications contain "foreign intelligence information" — that is, information about terrorist attacks or terrorist groups — or they don't.

  These two possibilities explain why the hypothetical of the government monitoring the foreign communications of people inside the U.S. without a warrant isn't realistic. If the calls to the person in the U.S. don't involve foreign intelligence information, the government has to screen out that information and it can't be used in any way. If the call does involve foreign intelligence information, then the government will likely have probable cause at that point to get a FISA order on the person in the United States. And it would be silly of them not to get a FISA order at that point: If a person in the United States is really a target and they now have probable cause, it would make no sense to just get by with the scraps of information the government has from monitoring a different person abroad rather than get the full picture of information it can collect by obtaining a FISA order targeting the particular person in the United States.

  Finally, the official stated that it's actually very rare for a person who the government is monitoring abroad to have communications with a person in the United States. It's just not common for an intelligence target to have communications with people in the U.S.; communications from abroad to abroad are the norm.

  Here was my second question:
Under the new statute, providers that are required to comply with this program can challenge its legality in court. The legislation states that the legal documents in the case must be filed under seal. In your view, does the new FISA legislation prohibit a provider from disclosing the mere existence of the court challenge and/or the legal basis for the challenge? That is, will we as members of the public even know about the challenges or what legal issues are being raised?
  The official noted that there are actually two types of judicial review authorized by the statute. First, the FISA court has to approve or disapprove the DNI/AG certification under the "clearly erroneous" standard. See the new 50 U.S.C. 1805C. Second, the FISA court has jurisdiction to hear challenges by providers as to the legality of the program and their involvement in it. See the new 50 U.S.C. 1805A(h)(1)(A).

  According to the official, challenges by providers under 50 U.S.C. 1805A(h)(1)(A) would remain under seal both as to the fact of the challenge and the legal arguments asserted. That has been the practice under FISA, and it would remain the practice going forward. The official indicated that there was likely a somewhat different answer for judicial review under 50 U.S.C. 1805C. The official stated that this was new territory for everyone and the statute didn't address the question, but that his "sense" was that the fact of judicial review proceedings before the FISA court (and if necessary, the court of review and Supreme Court) would be public "in some way." The official didn't seem sure as to exactly how the existence of the proceedings would become public, or how much would be able to be disclosed, but he seemed to agree that the fact of the legal proceedings themselves would not be a secret.

  Anyway, those were my questions, and the official's answers (as paraphrased by me as accurately as I could from my notes and memory). Many thanks to the folks at the White House for their willingness to speak about these issues. Whether you think the legislation is a good idea or a bad one, I think it helps everyone to get a better sense of how the new law is likely to be implemented.

Related Posts (on one page):

  1. White House Official Answers Questions About New FISA Legislation:
  2. Conference Call on the New FISA Legislation:
elliottg (mail):
"Whether you think the legislation is a good idea or a bad one, I think it helps everyone to get a better sense of how the new law is likely to be implemented."

And how does speaking with the White House give you any idea of how the new law is likely to be implemented. Their motto is all spin all the time. In this instance, the desireable spin is "not to worry, we won't abuse," and that's exactly the answers you got.
8.10.2007 2:24am
Just an Observer:
According to the official, this language is designed to codify the traditional intelligence community notion of having a surveillance "target." When the government has a "target," it tries to monitor all of that person's calls to which it is legally entitled.

In that case, surely the administration will agree to change the equivalent language in permanent legislation to read "surveillance directed at [a particular, known person reasonably believed to be located outside of the United States, if the contents are acquired by intentionally targeting that person]." (That inserted modifier is adapted from FISA's own, uh, traditional definitions.)

That is, doesn't it let the government use the "directed at" language to keep tabs on people in the U.S. so long as they are talking to people abroad? The official's answer was that this wasn't a realistic scenario in light of how intelligence investigations actually work. Under the legislation, the government's protocol for monitoring foreign communications has to satisfy the traditional minimization requirements of 50 U.S.C. 1801(h).

In that case, surely the administration will agree to change the permanent legislation to require explicitly that the same minimization requirements that actually are required for FISA court orders, including FISC review of those detailed requirements, be employed.

As I have remarked elsewhere, and Marty Lederman observes here, it does not appear that even the whole process Orin and the official were discussing, under the new 50 USC 1805B, is anything more than optional. Surely the administration rectify that in permanent legislation, by requiring that the reasonable belief in the new section 1805A be derived from the procedure defined in 1805B, and by making that procedure mandatory.

Who wants to bet that the administration will agree to such changes in the statute?

Meanwhile, statements of intent by anonymous White House officials have very little force in law.
8.10.2007 2:28am
Kazinski:
I can see why the Adminstration takes time to talk to people of good faith, like Orin, in order to answer legitimate questions. But I can also see why they don't have much patience with most of the critics, because the carping isn't about the merits of one policy or another, or one piece of legislation or another, its about losing two successive elections. If it were just confined to the commentors on this blog of course it wouldn't matter, but unfortunatly even the most vitrolic and unreasonable commentor here has a counterpart in congress.
8.10.2007 4:01am
Sean M:
I'm curious:

How did you get access to the conference call/follow-up with the Senior Official? Was it because you were a law prof, a noted blogger, or something else?
8.10.2007 7:49am
cboldt (mail):
First, thanks for sharing your effort to grasp the ramifications and application of the recent changes.

-- If the call does involve foreign intelligence information, then the government will likely have probable cause at that point to get a FISA order on the person in the United States. And it would be silly of them not to get a FISA order at that point: If a person in the United States is really a target and they now have probable cause --

This seems to conflate two very different forms of "probable cause." The only "probable cause" required to obtain a FISA warrant is that the information be "foreign intelligence." That "foreign intelligence" hurdle need not represent any criminal activity whatsoever. See the "the conduct of the foreign affairs of the United States" aspect of 1801(e)(2)(B), for example.

The way I read the statute, the warrant under 1804 comes into play only for electronic surveillance -- and does not come into play for the "not electronic surveillance" of (new) 1805A.
8.10.2007 7:56am
cboldt (mail):
-- Under the legislation, the government's protocol for monitoring foreign communications has to satisfy the traditional minimization requirements of 50 U.S.C. 1801(h). See the new 1805A(5) --

Under the S.1927 protocol, the minimization requirement is a determination of the DNI and AG, "transmitted to the court under seal" and "to remain under seal (not seen by the court) unless the certification is necessary to determine the legality of the acquisition under section 105B"

That challenge would be triggered at 105B(h), if any telco or ISP is nuts enough to buck the system, and even then, the initial court review may find the complaint to be "frivolous" and not open the sealed package.

In contrast, under the previous procedure, "minimization" was critically evaluated by the court. I suspect that minimization deficiencies (in the court's eyes) were the root source of most FISA warrant modifications.
8.10.2007 8:06am
cboldt (mail):
-- The official noted that there are actually two types of judicial review authorized by the statute. First, the FISA court has to approve or disapprove the DNI/AG certification under the "clearly erroneous" standard. See the new 50 U.S.C. 1805C. Second, the FISA court has jurisdiction to hear challenges by providers as to the legality of the program and their involvement in it. See the new 50 U.S.C. 1805A(h)(1)(A) --

Ahh -- the "your civil liberties are even more protected" argument, supported by the number of statutorily permitted legal challenges, but without looking at the substance of those challenges. Shall we?
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The "court approval" at 105C is very narrow, and touches -ONLY- "the procedures by which the Government determines that acquisitions conducted pursuant to section 105B do not constitute electronic surveillance" What this means is that the procedures must determine one end of the acquisition in not physically in the US.
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The other court challenge, triggered by a provider, can (as noted above) be dispensed with as "frivolous." A challenge is frivolous if it can't overcome the "not electronic surveillance" definition at 105A, with the legal test being that the drafter of the order has to have made a clearly erroneous determination in that regard.
8.10.2007 8:22am
cboldt (mail):
-- his "sense" was that the fact of judicial review proceedings before the FISA court (and if necessary, the court of review and Supreme Court) would be public "in some way." --
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There will be a leak or press release every time the court approve of an order or program. Shortcomings will be negotiated in secret. Status quo.
8.10.2007 8:26am
cboldt (mail):
Probing this notion a bit further ...
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The way I read the statute, the warrant under 1804 comes into play only for electronic surveillance -- and does not come into play for the "not electronic surveillance" of (new) 1805A.

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If, as a result of "not electronic surveillance," the government becomes interested in a person on US soil, and intends to capture that person's communications even if they aren't calling overseas (if they ARE calling overseas, I believe their communications can be targeted and netted within the "not electronic surveillance" regime), it may seek a surveillance warrant.
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If the "probable cause" is one of suspected criminal activity (including conspiracy), then the "not electronic surveillance" of FISA has been used to bootstrap a finding of "probable cause of criminal activity."
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If the "probable cause" is that the person will produce "foreign intelligence information" that is wholly transmitted and contained in the US, then the warrant under 1804 can come into play. These FISA warrants carry lots of baggage. Some of the baggage is that the target has to be a foreign power or an agent of a foreign power; the acquisitions are limited to the types of information recited in 1801(e) (definition of "foreign intelligence information" - no protection against domestic terrorism whatsoever)
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Both of those pieces of baggage (and there are quite a few others) are worth probing further. What does it take to become an agent of a foreign power? How is a legal resident or citizen transformed into an agent of a foreign power? Does the "not electronic surveillance" connection to a foreigner result in a conspiratorial, but wholly domestic communications being "foreign intelligence information?" I.e., can a terror cell be bot a domestic cell and an international cell at the same time?
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Note that I don't have a problem with a bigger big brother - but I think it's prudent to "play forward" the statutory changes to avoid a cases where good intelligence (learning of malfeasants) isn't acted on, or where every criminal (or worse, an innocent) becomes a terrorist.
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At some point, and I don't know if we've reached it on the issue of surveillance (we have in other areas), big brother will be too big - the trade off won't be worth it.
8.10.2007 9:17am
aka:
cboldt, I think you're too dismissive of the second (provider-initiated) type of challenge. By their very nature, providers are in a good position to know where the targeted customers are and to rebut, where the facts permit, the claim that a target is reasonably believed to be outside the U.S.

One knowledgeable commentator offers this:
With costs and civil liability addressed, providers are only likely to seek relief from the FISA Court if they have reason to believe that the target communication does not involve a foreign participant, if the directive is so broad as to vitiate the particularity requirement for a foreign intelligence nexus, or if compliance will be unduly burdensome – notwithstanding the possibility of cost recovery – such as where compliance will require changes to technology or network architecture that are impractical or otherwise will substantially interfere with the provision of customer services.
All that said, I agree that Orin is showing a vexing lack of skepticism. There's nothing wrong with reporting what White House reps say, but uncritically crediting their statements is (as Dr. Johnson memorably described second marriages) the triumph of hope over experience.
8.10.2007 9:17am
cboldt (mail):
-- By their very nature, providers are in a good position to know where the targeted customers are and to rebut, where the facts permit, the claim that a target is reasonably believed to be outside the U.S. --
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I agree with all that. I think, in practice, there won't be many (if any) 105B(h) challenges for that very reason. I believe the technology is such that it is possible, with near certainty, to locate the duplication/acquisition/tap so that everyone will agree all contents have a foreign component.
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Those providers who have an urge to protect customer privacy in international communications may sue for relief, but they won't get any.
8.10.2007 9:26am
Just an Observer:
And it would be silly of them not to get a FISA order at that point: If a person in the United States is really a target and they now have probable cause ...

As I recall, the bill that House Democrats were negotiating with the DNI would have required a FISA warrant once a U.S. target was identified. But the White House refused to accept this bill.

In general, the spin of the anonymous White House official takes the following form: Trust us. We will not do what the plain language of the legislation permits. Rather, we will voluntarily constrain ourselves by safeguards X, Y and Z.

Yet the administration will not agree to write X, Y and Z into law!

It is okay to take advantage of access to a White House background briefing. Journalists do it all the time, and the official briefers spin like tops. But that is not the same thing as believing the spin.
8.10.2007 9:27am
cboldt (mail):
On second thought, there may be some 105B(h) challenges.
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An "interesting" technical discussion will relate to datapipes that cross the US/Canada and US/Mexico borders.
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I vaguely recall some small scandal where some telcos were obtaining some financial (tax?) advantage by routing US-to-US calls through Canada.
8.10.2007 9:39am
OrinKerr:
aka writes:
All that said, I agree that Orin is showing a vexing lack of skepticism. There's nothing wrong with reporting what White House reps say, but uncritically crediting their statements is (as Dr. Johnson memorably described second marriages) the triumph of hope over experience.
I'm not sure what of my post was "crediting" as compared to "reporting," but it's true that I did find some of the official's positions reasonably persuasive. That was a judgment based on the official's detailed responses and my experience studying and researching this area (and working on the crim side of investigations from '98-'01). I am sorry if my judgment vexes you, but of course you are free to discount what I say (either now or in the future, whether pro-Administration or against it) if you find me not to be a reliable judge of these things.
8.10.2007 9:59am
OrinKerr:
JaO,

I don't understand your 8:27 comment. If a foreigner is talking to someone in the U.S. about non-pertinent things, how is the government supposed to get a FISA warrant? What kind of probable cause would they have?

I realize it's satisying to say others are being insufficiently skeptical, but it's of course just as easy to err on the other side of the balance.

Orin
8.10.2007 10:04am
cboldt (mail):
1802(a)(1)(B) of the previous FISA regime conditioned warrantless surveillance on a certification that ...

there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party


Under the previous FISA, if the surveillance didn't fit under 1802(a) [and believe it or not, international terrorists did NOT fit!], the FISA court got involved in issuing a surveillance warrant.
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Under the current regime, the surveillance can proceed without court supervision, period, because the interception is "not electronic surveillance."
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-- What kind of probable cause would they have? --
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The only "probable cause" needed, now, to proceed with the warrantless acquisition of a communication, is that the government not be conducting electronic surveillance, which is defined as "surveillance directed at a person reasonably believed to be located outside of the United States." So, set up a net that is directed at all traffic believed to come from outside of the United States (which can be the result of them answering the phone), and the surveillance is directed at the foreign target." One can argue that the fact the call was initiated in the US is incidental.
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See above for the difference between "FISA probable cause," and the common vernacular "probable cause." They are distinctly different things.
8.10.2007 10:33am
John Thacker (mail):
One brief summary of this issue is that various advances in communication technology, especially including the switch to packet-switched communications, but also including increased use of encryption, fewer identifying features on packets, increased anonymity (such as on the Internet), and the potential of routing wholly foreign signals through the US, have made it much more technically difficult, perhaps even impossible, to only intercept wired signals of foreign persons and intended targets without some level of examination of the signals.

A similar problem already presented itself with wireless communications, where it is impossible to completely avoid picking up US person signals when something is broadcast through the air and an antenna will simply happen to pick it up. Therefore, wireless collects have long had minimization procedures detailing how US person signals have to be identified as such and discarded within 72 hours, completely electronically without human intervention when at all possible (such as when the signal's origin can be located within the US.) Warrants are not required to initially electronically intercept, but are required to not discard US person signals automatically.

Wired collects have traditionally not required such procedures because of the greater ease of determining the two parties to a signal before collecting. Since that is no longer the case, similar procedures as for wireless collection are being adopted.

You can see how advances that in some way advance privacy (it not being easy at all to tell who a signal is from and who it is to) also in some sense end up decreasing privacy because of government response. Rather than throwing up their hands and saying that all intelligence gathering of wire communications is now impossible, there's a move towards collecting and examining signals just enough to identify the parties involved, like in wireless signals.

That is, at least, so long as you trusted the government to only read the communications of the correct targets in the days when it was very obvious who the two parties involved were; in other words, to follow the law. If you're going to suspect that the law is/was frequently ignored, then certain objections against this law apply with equal force to the prior state of the law.

That is, doesn't it let the government use the "directed at" language to keep tabs on people in the U.S. so long as they are talking to people abroad?

It's also a fact of technical limitation. With packet-switched communications, and especially with encrypted packet-switched communications, it's impossible to identify a particular signal of interest before listening in. (In a traditional circuit-switched telephone call, two ends establish a circuit and then all data for the entire call travels down the same circuit and could be intercepted. With packet-switching, data that's part of one signal gets broken up into many tiny pieces mixed in with packets from all sorts of other signals.)

A procedure would fall into two categories. In the first, there is identifying information in each packet for the target, and identifying information for the other party that allows a machine to identify whether the party on the other
end is a US person. (For example, an IP address assigned to the US.) In this case, automatic collection can be performed on just the proper signals easily.

The second case is harder. In the second case, there is no easily identifying information for the other party that determines if they are a US person. The system may be able to collect all signals where the target is one party, but other procedures are necessary to discard the signals where the other party is a US person within the 72 hours directed by law.

It is presumably possible to monitor some of a US person's signals if we know that that US person habitually talks to the same foreign person (or same handful of foreign people) that we're already interested in listening to abroad and talks about issues of national security interest with those people. As noted, the requirements necessary to save those communications would also provide enough evidence to get a FISA warrant against that US person, though.

In contrast, under the previous procedure, "minimization" was critically evaluated by the court. I suspect that minimization deficiencies (in the court's eyes) were the root source of most FISA warrant modifications.

You would be wrong in that suspicion. Minimization is set at a policy and technical level in a particular acquisition system. Minimization procedures are the same across all collects for a particular type of signal; they're not set on a case-by-case basis for each warrant. Minimization procedures also come most importantly into play in situations where a FISA warrant is not required because the collect is targeted at someone outside the US.

FISA warrant modifications are generally because the court believes that there is insufficient evidence to issue a warrant against a US person. (including non citizens inside US territory)

Under the S.1927 protocol, the minimization requirement is a determination of the DNI and AG, "transmitted to the court under seal" and "to remain under seal (not seen by the court) unless the certification is necessary to determine the legality of the acquisition under section 105B"

No, you're incorrect. The request for an acquisition against a particular target under this program is what is placed under seal, along with justification for why the particular target can be targeted without a warrant.

The procedures, including minimization procedures, are required to be submitted by the Attorney General to the Court "no later than 120 days after the effective date of [the] Act," and the FISA court is directed to assess the procedures "no later than 180 days after the effective date of [the] Act." In addition, it notes that the DNI and the Attorney General are required to assess the procedures and shall report on them to the Select Committees on Intelligence. Also, the minimization procedures are required to follow the definition for minimization procedures already existing in the statute, such as the 72 hour limit.

An "interesting" technical discussion will relate to datapipes that cross the US/Canada and US/Mexico borders.

Likely those packets would have a chance of being subject to being sniffed, but would not be picked up and stored by any system unless one endpoint was being targeted (which would require a FISA warrant), and would not be examined by any humans.
8.10.2007 10:34am
Curt Fischer:
I'm confused that the official agreed to be "on the record", but nowhere does Prof. Kerr identify him.

If someone demands anonymity as a condition of their speaking to you, they are not "on the record". If Prof. Kerr is extending anonymity of his own accord, I suppose the source was technically "on the record", but only for Prof. Kerr.
8.10.2007 10:38am
jrose:
Orin,

The new 105(B)(a)(4) and (5) require that the warrantless surveillance have as a "significant purpose" the collection of foreign intelligence information and that minimization procedures be used as required elsewhere in FISA when the information collected isn't foreign intelligence information.

However, where is there any oversight or enforcement mechanisms outside the executive branch to insure these requirements are met?
8.10.2007 10:40am
Just an Observer:
Orin,

I am not saying that the government deliberately would avoid getting a FISA warrant when there is probable cause. I am saying the opposite -- that the government could reverse-target an identifiable U.S. person when there is something well short of probable cause. The new law allows the government effectively to evade the warrant requirement.

Your source seems to be assuming, or have us assume, that once the U.S. person is identified, probable cause would obtain naturally. I think the FISA definitions of an "agent of a foreign power" are more rigorous than that.
8.10.2007 10:40am
Just an Observer:
Orin,

p.s. In my 8:27 comment, I carefully avoided accusing you personally of being too uncritical. My comments about spin and background briefings apply to all of us.
8.10.2007 10:47am
John Thacker (mail):
The only "probable cause" needed, now, to proceed with the warrantless acquisition of a communication, is that the government not be conducting electronic surveillance, which is defined as "surveillance directed at a person reasonably believed to be located outside of the United States." So, set up a net that is directed at all traffic believed to come from outside of the United States (which can be the result of them answering the phone), and the surveillance is directed at the foreign target." One can argue that the fact the call was initiated in the US is incidental.

If the net is directed at all signals to which a particular foreign person is party, under the sealed certification in Sec. 105B(a), yes. There are further requirements post-acquisition if it turns out the one end of the signal was in the US, but calls crossing the border of the US would be initially acquired. (Perhaps interesting at some point to contrast the treatment of signals and goods crossing the border.)

Remember, it's not just "calls" and "pick[ing] up the phone." Traditional circuit-switched telephone calls are much easier to monitor and properly target. The bigger issue are IP-routed signals, which of course now can include voice communications (even sent over IP over the traditional phone network) but are not limited to them.
8.10.2007 10:52am
cboldt (mail):
-- The procedures, including minimization procedures, are required to be submitted by the Attorney General to the Court "no later than 120 days after the effective date of [the] Act," --
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vs. the statutory language
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Sec. 105C. (a) No later than 120 days after the effective date of this Act, the Attorney General shall submit to the Court established under section 103(a), the procedures by which the Government determines that acquisitions conducted pursuant to section 105B do not constitute electronic surveillance.


The determination that acquisitions ... do not constitute electronic surveillance does not include minimization procedures.
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-- Minimization procedures are ... not set on a case-by-case basis for each warrant --
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I was just speculating as to why some 40 to 70 FISA surveillance warrants are modified in recent years. If not for minimization deficiencies, what?
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Under the new regime, minimization procedures are one element of a package that is transmitted to the court, where each package is prospective support for a court order to a telco, if the telco doesn't comply with the surveillance order.
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We don't know the nature of the surveillance orders, except for some loose talk about "basket warrants."
8.10.2007 10:53am
cboldt (mail):
-- There are further requirements post-acquisition if it turns out the one end of the signal was in the US, but calls crossing the border of the US would be initially acquired. --
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How do you arrive at that?
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It isn't even electronic surveillance, regardless of one end being US, if the surveillance is directed at a person reasonably believed to be located outside of the United States.
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If DNI wanted to use the word "targeted" instead of the phrase "directed at", he could have. The choice of words is deliberate.
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I agree that something more has to happen if the acquisition creates a suspicion of conspiracy or foul play, but I don't see any need for that suspicion to in order to maintain surveillance without a warrant. No warrant for "not electronic surveillance."
8.10.2007 10:59am
boris (mail):

the government could reverse-target an identifiable U.S. person when there is something well short of probable cause
Is this specific concern representitive or realistic? Suppose Bush wants to reverse-target Pelosi by targeting her friend who lives in Crete. What good would that do? Is the problem that even though it would do absolutely no good, it would still be possible, allowed and wrong wrong wrong?
8.10.2007 11:00am
cboldt (mail):
-- Perhaps interesting at some point to contrast the treatment of signals and goods crossing the border. --
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It's a good comparison. If it crosses the border, it can be examined without resort to a warrant. Goods or signals alike.
8.10.2007 11:03am
devoman:
It would be ironic if this new wiretapping legislation results in lower overall security.

See this column in yesterday's Washington Post about how hackers could exploit the capabilities the NSA builds into telecom switches.
8.10.2007 11:09am
John Thacker (mail):
The new 105(B)(a)(4) and (5) require that the warrantless surveillance have as a "significant purpose" the collection of foreign intelligence information and that minimization procedures be used as required elsewhere in FISA when the information collected isn't foreign intelligence information.

However, where is there any oversight or enforcement mechanisms outside the executive branch to insure these requirements are met?


105(B)(d) requires reports to the House and Senate Select Committees on Intelligence. Section 105(C) requires review of the overall procedures by the FISA court, though not as to the particulars of individual cases. 105(B)(h) allows review of particular cases when challenged by the ISPs or other communications companies. Those are the primary forms of oversight.

Of course, while the various reports and forms of oversight could be ignored, the same is and was true of any other sort of collect in general, such as those aimed at wireless (radio and other) communications.

I am saying the opposite -- that the government could reverse-target an identifiable U.S. person when there is something well short of probable cause. The new law allows the government effectively to evade the warrant requirement.

Only if the identifiable U.S. person is routinely communicating with known foreign persons who can be targeted, and the communications intercepted fall under those that do not have to be excluded under the minimization procedures. The new authorization under 105(B) requires that the minimization procedures under 101(h) be followed, which, among other things, require that the information be "foreign intelligence information" as defined elsewhere in the act. (Or that there be a danger in imminent loss of human life.)

I agree that the law does allow a way to evade the warrant in one sense-- if insufficient evidence exists to get a warrant now, but we know that the person is communicating with known foreign persons and have a substantial belief that their communications will include "foreign intelligence information," then we could listen in to their communication with the known foreign persons, save that information because it is "foreign intelligence information," and then later use that information in order to obtain a FISA warrant. This would be possible even when insufficient probable cause existed to obtain a warrant for the known foreign person necessary to listen to their communications with US persons, though their communications with non-US persons may be picked up without a warrant.
8.10.2007 11:14am
cboldt (mail):
Ahh ... I blew past your previous when I asked "if warrants aren't modified for minimization deficiencies, then for what?
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-- FISA warrant modifications are generally because the court believes that there is insufficient evidence to issue a warrant against a US person. (including non citizens inside US territory) --
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I'd like, if you can, a bit of fleshing out of the kind of evidentiary shortcoming. I'm reading the statute, and seeing things like ...

1804 (FISA surveillance) warrants shall issue upon certification of belief that ...
1804(a)(4)(A) "the target of the electronic surveillance is a foreign power or an agent of a foreign power"
(B)each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power


and further ...

1804(a)(7)(A) that the certifying official deems the information sought to be foreign intelligence information;
(B) that a significant purpose of the surveillance is to obtain foreign intelligence information


Maybe the evidentiary deficiency you refer to is inability to attach the label "agent of a foreign power", or that each of the named facilities is to be used by a foreign power or agent thereof. This is, in a sense, similar to minimization in that it aims to limit the extent of acquisition of communications of US persons.
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In general, it seems to me that the minimization at 1804(a)(5) and 1804(a)(11) would be more likely to trigger judicial objection. But as I said, I'm in the realm of pure speculation here.
8.10.2007 11:26am
Apodaca:
cboldt:
I vaguely recall some small scandal where some telcos were obtaining some financial (tax?) advantage by routing US-to-US calls through Canada.
Perhaps this:
The lawsuit accuses MCI/WorldCom and ONVOY of orchestrating a scheme called the "Canadian Gateway Project," in which they worked with other telecommunications companies to reroute MCI customers' domestic phone calls through Canada to deceive and defraud AT&T into paying hefty termination fees for terminating calls to high-cost independent telephone companies in the U.S.
In fairness, I note that the suit was later settled.

More cboldt:
If it crosses the border, it can be examined without resort to a warrant. Goods or signals alike.
It would be nice if people making this assertion cited at least a little authority instead of offering pure ipse dixit. And no, Ramsey in no way supports the proposition.
8.10.2007 11:27am
cboldt (mail):
-- Section 105(C) requires review of the overall procedures by the FISA court --
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That is flat out false, or I am seriously reading comprehension impaired. The only review required at 105C can be read therein. Read it.

Sec. 105C. (a) No later than 120 days after the effective date of this Act, the Attorney General shall submit to the Court established under section 103(a), the procedures by which the Government determines that acquisitions conducted pursuant to section 105B do not constitute electronic surveillance. The procedures submitted pursuant to this section shall be updated and submitted to the Court on an annual basis.

(b) No later than 180 days after the effective date of this Act, the court established under section 103(a) shall assess the Government's determination under section 105B(a)(1) that those procedures are reasonably designed to ensure that acquisitions conducted pursuant to section 105B do not constitute electronic surveillance. The court's review shall be limited to whether the Government's determination is clearly erroneous.


The only determination that I see in there is for the court to undertake to confirm is "does not constitute electronic surveillance." That's the statutory language.
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Maybe you meant a different section says that there is a required review of the overall procedures.
8.10.2007 11:35am
cboldt (mail):
-- It would be nice if people making this assertion cited at least a little authority --

My "If it crosses the border, it can be examined without resort to a warrant. Goods or signals alike." depends on the FISA modernization statute. Intercepting communications that cross the border is not electronic surveillance, as a matter of statutory definition.
8.10.2007 11:38am
Just an Observer:
Me: I am saying the opposite -- that the government could reverse-target an identifiable U.S. person when there is something well short of probable cause. The new law allows the government effectively to evade the warrant requirement.

John Thacker: Only if the identifiable U.S. person is routinely communicating with known foreign persons who can be targeted, and the communications intercepted fall under those that do not have to be excluded under the minimization procedures. The new authorization under 105(B) requires that the minimization procedures under 101(h) be followed, which, among other things, require that the information be "foreign intelligence information" as defined elsewhere in the act. (Or that there be a danger in imminent loss of human life.)

You have much more faith in the skeletal, watered-down minimization requirements of 105B than I do. Besides, I think the entire procedure defined by 105B is optional for the government. So long as telecoms cooperate voluntarily, as they reportedly did for the so-called "TSP," there is no reason for the government even to invoke this procedure to acquire their data.

(The government may invoke the procedure to compel cooperation from other providers and Internet hosts, such as ISPs, colleges and employers, but that is another matter -- a powerful new warrantless tool the government may choose to employ when it wishes. Overall, 105B is best read not a check on government spying, but as an authorized expansion.)

The minimization issues and and the optional character of 105B are explored well in Marty Lederman's posts at Balkinization, here and here.
8.10.2007 11:40am
jrose:
105(B)(d) requires reports to the House and Senate Select Committees on Intelligence

The only information handed over to Congress is a non-compliance report relative to the AG/DNI-developed procedures. It does not provide oversight on those procedures.

Section 105(C) requires review of the overall procedures by the FISA court, though not as to the particulars of individual cases

It only reviews the procedures by which the AG/DNI determine that acquisitions were not electronic surveillance. I see nothing in there about either minimization procedures nor that the surveillance has as a significant purpose to collect foreign intelligence information.

105(B)(h) allows review of particular cases when challenged by the ISPs or other communications companies

Is the ISP aware of the minimization procedures or whether the surveillance has as a significant purpose to collect foreign intelligence information? And even if so, we are counting on a private actor to provide oversight?
8.10.2007 11:42am
Apodaca:
cboldt, I took your reference to "goods or signals" to be a constitutional claim, given that FISA doesn't deal with border searches of goods.

I think we can all agree that as a purely statutory matter, interception of communications that cross the border is not "electronic surveillance" as newly defined in FISA and thus no warrant is required even when the interception occurs in the U.S. The constitutional question, on the other hand, appears to me much less settled.
8.10.2007 11:48am
boris (mail):
skeletal, watered-down minimization requirements of 105B

So it is not the bypass of probable cause but the potential use of non intel (ie political &personal) communication that worries.

Putting US citizen civil liberties before national security (the probable cause hypothetical in J.T. 8:10) seems less ... (silly?) than putting US citizen personal privacy ahead of national security. Security is a little more important than privacy IMO.
8.10.2007 11:52am
boris (mail):
Oops should be (the probable cause hypothetical in J.T. 10:14am)
8.10.2007 11:54am
jrose:
Besides, I think the entire procedure defined by 105B is optional for the government. So long as telecoms cooperate voluntarily, as they reportedly did for the so-called "TSP," there is no reason for the government even to invoke this procedure to acquire their data

Doesn't 2511 forbid this unless some other statute permits it? And wouldn't that make 105B a requirement?

On the other hand, 105B is satisfied based on the determination of the AG/DNI - so it looks like they can immunize themselves?
8.10.2007 11:55am
Just an Observer:
jrose: Doesn't 2511 forbid this unless some other statute permits it?

No, quite the opposite. 18 USC 2511(f) carves out from statutory regulation in Title III and FISA the government's unstated but inherent foreign intelligence surveillance activities, so long as they do not fall within FISA's scope -- which is controlled by the definition of "electronic surveillance" that the new section 105A so artfully redefines.

The first half of 18 USC 2511(e) is the granddaddy carveout that exempts NSA (or CIA, etc.) surveillance activities abroad from any regulation. If our intelligence agencies surveil a target locally in Moscow or Islamabad, for example, this activity is simply outside the scope of Title III and FISA. There is no statutory requirement for minimization, or any other regulation. They do not need affirmative statutory authorization to conduct such surveillance; the president's authority is constitutionally inherent.

Not even the definition of "foreign intelligence information," which as you have pointed out applies within FISA's own scope, is defined for purposes of 18 USC 2511(f). As I see it, the government is free to interpret that phrase, for purposes of the carved-out activity, as broadly as it wants.
8.10.2007 12:33pm
Just an Observer:
jrose,

I meant to cite 18 USC 2511(f) above in all references, but erroneously typed 18 USC 2511(e) in one.
8.10.2007 12:35pm
Observer (mail):
Stepping back a few steps, something doesn't make sense to me.

If the Government is lawfully listening to the communications of some mafia don in the US, the persons with whom he is communicating have no standing to complain. It could be his tailor, his girlfriend, his banker, his consigliere, it doesn't matter. The Government gets to listen to everything.

Now in this case, the Government is lawfully listening to the communications of some foreign intelligence target. Actually, it doesn't even have to be a foreign intelligence target, because the Constitution has no applicability to anything that the Government does to foreigners overseas. If the Government wanted to surveil the communications of all foreign pastry makers there would be no constitutional obstacle to that program. But in a world of limited resources, let's assume that the Government is focused on targets of interest to US intelligence agencies. I gather that everyone agrees that no warrant of any kind is required to surveil those communications so long as they are from one overseas person to another. So why does the fact that the target all of sudden decides to communicate with someone in US change that?

Remember, the tailor who receives the wiretapped phone call from the mafia don in the US has no standing to complain about the wiretap because the Government is lawfully surveilling the mafia don's phone calls. How is it any different when someone in in the US receives a phone call or email from a foreign person whose communications the Government has the right to surveil?

Somebody, please explain the difference to me.
8.10.2007 12:57pm
OrinKerr:
Observer,

The difference is that in the case of the mafia don, the government has a warrant; in the case of the foreign person monitored, it does not.
8.10.2007 1:07pm
Observer (mail):
Prof. Kerr,

Why does that matter so long as the surveillance of the target is lawful? I thought the reason to get a warrant is to protect the privacy of the surveilled party, not those with whom he is communicating, since they have no standing to complain about the Government listening or reading their communications.
8.10.2007 1:24pm
cboldt (mail):
In the FWIW department, the phrase "directed at" isn't new. It appears at 1802(a) in the following form:

1802(a)
(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that--
(A) the electronic surveillance is solely directed at--
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title


And at section 1804 (application for court order/warrant):

1804(a)(4)(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power
1804(b) Whenever the target of the electronic surveillance is a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title, and each of the facilities or places at which the surveillance is directed is owned, leased, or exclusively used by that foreign power, the application need not contain the information required by paragraphs (6), (7)(E), (8), and (11) of subsection (a) of this section, but shall state [some interesting stuff snipped]


And again at section 1805 (contents of court order/warrant), mirroring the language in 1804.
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At any rate, both terms, "target" and "directed at" appear in both the previous and modernized FISA constructs, and seem to be used in similar ways in both places.
8.10.2007 1:31pm
boris (mail):
The difference is that in the case of the mafia don, the government has a warrant; in the case of the foreign person monitored, it does not.

But the rights of the other party should not depend on such distinction. The tailor who speaks both to a drug dealer and a foreign terror suspect has no expectation of greater civil liberties for either case.

Besides, requiring a warrent to surveil communication between foreign suspects who communicate with their domestic agents is as unworkable as requiring warrents for both ends of all criminal domestic surveillance.

As a practical matter it is a distinction without significant difference.
8.10.2007 1:36pm
Just an Observer:
Observer,

There is not a question about who has "standing to complain." This is not a lawsuit, or a constitutional privacy case, but a policy issue.

As a policy matter, Congress enacted FISA in 1978 and struck a rough balance: Purely foreign surveillance was left unregulated, but Congress chose to regulate foreign intelligence surveillance when it lapped into this country under certain defined circumstances. If a U.S. person is targeted, the intent was to require a warrant.

Now the administration has successfully persuaded Congress, at least temporarily, to "clarify" FISA's scope with respect to international traffic. So long as the government can claim that surveillance is "directed at" someone abroad -- not necessarily any "target" in particular, just anyone abroad -- that surveillance is deemed to be outside FISA's scope, so anything goes. As you say, the president constitutionally can decide on his own to surveill "all foreign pastry makers." Or the president can decide on his own to surveill all foreigners, period.

A big policy issue is that this artful dodge might allow the government effectively to reverse-target U.S. persons for whom a warrant might otherwise be required.

The situation is compounded by the capabilites of modern tecnology. It now is feasible, or nearly so, for the government to intercept essentially all international communications to/from this country, store them in huge databases and search them. It used to be that to tap a line, the surveiller had to identify a given line up front for technical reasons, regardless of the legal definition of "target"; now, the NSA can just slurp in something approaching everything and crunch it in databases.

So the effect can be that the government can retrieve anyone's international communications without anything close to probable cause of anything, limited solely by the technical skill of the NSA programmers and analysts, and the agency's prodigious budget for buying computer hardware. As a technical problem, once such a large database exists, it is a trivial thing to isolate and browse all your international communications, or mine, or my employer's.

That may well be constitutional. But as a policy matter, I don't think that is what society signed up to in 1978. Obviously, some think that is what we should do now, but others don't.
8.10.2007 1:40pm
boris (mail):
in the case of the mafia don, the government has a warrant

Also, if it were necessary to acquire a warrant on a foreign controller of domestic agents, what standards would apply and what is the jurisdiction? If the standard for the foreign controller is "suspicion" then ISTM it is the jurisdiction of the executive to claim a de-facto warrant of sorts.
8.10.2007 1:42pm
markm (mail):
Observer: The reason for a warrant is to have a neutral party review the reasons for the monitoring in the first place. Our Constitution was written by men who deeply distrusted anyone wielding governmental power. I think the 200+ years of history since then has shown only that their distrust didn't run quite deep enough.
8.10.2007 1:46pm
Apodaca:
boris logic-chops:
Besides, requiring a warrent to surveil communication between foreign suspects who communicate with their domestic agents is as unworkable as requiring warrents for both ends of all criminal domestic surveillance.
Ah, yes: the alchemical chain of reasoning by which obtaining even one warrant is magically converted into an "unworkable" requirement.

Bravo, sir.
8.10.2007 1:47pm
cboldt (mail):
The difference is a technicality. Under the modernized FISA regime, all that is required to establish "probable cause" sufficient to support warrantless surveillance is a reasonable belief that one end of the exchange is not in the United States. The statutory device is that communications that involve a person outside the US is not considered to be electronic surveillance.
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But most people expect privacy in their general foreign communications (and don't expect privacy when they physically cross a border), conceding, jut the same, that some of their conversations may be intercepted if the guy on the other end is under surveillance for some reason. The technicality is that now, under US law, every foreigner is potentially under (legal) warrantless surveillance by the US, with the only reason being that the person is not located in the United States.
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Some people might object because they find the new reason to be too broad.
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As a practical matter, there is a limit to what the snooper can focus attention on, so general foreign communications pass unimpeded (same way with customs - searches are the exception, not the rule, where searches are most often driven by suspicion).
8.10.2007 1:50pm
boris (mail):
this artful dodge might allow the government effectively to reverse-target U.S. persons

Without oversight and enforcement an unscrupulous NSA operative could target known foreign associates of opposition politicians for surveillance and collect dirty little secrets that could be used to embarrass or blackmail them.

OTOH establishing too much oversight and enforcement could in the hands of a punctilious civil libertarian impede the prevention of another 9-11.

Seems to me some effort has been made to avoid the latter possibility with minimal danger of the first. There seems to be enough oversight that the first is impossible to implement on a scale that would provide sufficient value to take the risks.
8.10.2007 1:50pm
boris (mail):
most people expect privacy in their general foreign communications

Perhaps, but such expectation is not reasonable. There is no reasonable expectation that France (for example) has any restraint on such surveillance. It would be foolish to claim that people expect more privacy from US than France or Russia wrt international communications.
8.10.2007 1:54pm
cboldt (mail):
-- If a U.S. person is targeted, the intent was to require a warrant. --
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Under a FISA 1804 warrant, a target must be a foreign power or an agent of a foreign power.
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It is possible to be both, a US person and an agent of a foreign power, see Aldrich Ames.
8.10.2007 1:54pm
OrinKerr:
Observer writes:
Why does that matter so long as the surveillance of the target is lawful? I thought the reason to get a warrant is to protect the privacy of the surveilled party, not those with whom he is communicating, since they have no standing to complain about the Government listening or reading their communications.
As JaO suggests, it's hard to make the baseline whether the surveillance is "lawful" given that the debate is what *should* be lawful. As a matter of constitutional law, both parties are surveilled when the government listens in on a call; there is no constitutional difference between targeting A or B when A is talking to B and the entire call is recorded.
8.10.2007 1:56pm
boris (mail):
obtaining even one warrant

So what would be the constitutional jurisdiction for some judge to issue a surveillance warrant on Bin Laden?
8.10.2007 1:57pm
cboldt (mail):
Was: "... the target of the electronic surveillance is a foreign power or an agent of a foreign power"
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Is: "... the targets of the electronic surveillance are persons outside the United States"
8.10.2007 2:02pm
boris (mail):
The "logic" problem of warrants is that courts are not to be involved in foreign surveillance for national security. That means that communication with domestic agents becomes a special "no listen" category with a level of workability comparable to requiring a warrent for both ends of all criminal domestic surveillance.

That's where the "logic" is.
8.10.2007 2:03pm
zuch (mail) (www):
[Prof. Kerr]: If a foreigner is talking to someone in the U.S. about non-pertinent things, how is the government supposed to get a FISA warrant? What kind of probable cause would they have?

Why should they get a warrant in such a case? Or are you worried about the legality of the continued snooping on calls involving the U.S. person under such circumstances (where the [purported] "target" is the foreign party).

FWIW, if a wiretap is not showing anything good, it should properly be terminated.

Cheers,
8.10.2007 2:03pm
cboldt (mail):
-- it's hard to make the baseline whether the surveillance is "lawful" given that the debate is what *should* be lawful. --
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A significant point of initial point of the post was to define the effect of the statutory revision, without necessarily getting to the policy question. E.g., the extent and nature of oversight, the right of a contestant to resort to court, etc. There is debate in this thread over the effect and operation of S.1927, see substantial differences of take between me and Mr. Thacker, for example. I don't believe there is broad agreement at this point of how the new statute operates.
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I do agree that it's good to have (and even in parallel) a debate over how such a statute should operate. But the debate is going to be academic inasmuch as the PTB will do whatever they want to do.
8.10.2007 2:08pm
jrose:
JaO,

I suspect the courts would frown on a different interpretation of "foreign intelligence information", although I agree that even if I am right on that point, it appears minimization is optional.
8.10.2007 2:13pm
zuch (mail) (www):
John Thacker:

One brief summary of this issue is that various advances in communication technology, especially including the switch to packet-switched communications, but also including increased use of encryption, fewer identifying features on packets, increased anonymity (such as on the Internet), and the potential of routing wholly foreign signals through the US, have made it much more technically difficult, perhaps even impossible, to only intercept wired signals of foreign persons and intended targets without some level of examination of the signals.

A similar problem already presented itself with wireless communications, where it is impossible to completely avoid picking up US person signals when something is broadcast through the air and an antenna will simply happen to pick it up. Therefore, wireless collects have long had minimization procedures detailing how US person signals have to be identified as such and discarded within 72 hours, completely electronically without human intervention when at all possible (such as when the signal's origin can be located within the US.) Warrants are not required to initially electronically intercept, but are required to not discard US person signals automatically.

Wired collects have traditionally not required such procedures because of the greater ease of determining the two parties to a signal before collecting. Since that is no longer the case, similar procedures as for wireless collection are being adopted.


A good summary.

I agree that there are difficulties in determining locus of the parties. But I disagree as to whether they're insurmountable through purely technical means (at least to a reasonably probablility, and hopefully actual, legally required minimisation procedures would catch the rest).

Because of the legal requirement for E911 services (which are now even extending into the broadband realm), and the commercial utility of "location-based services" (as you'll see in just the customisation of web page appearance based on estimated location; just try "google.com" from Brazil, for instance), the difficulties are being resolve (and even equipment put in to reduce uncertainty) even as we speak.

Determining who is a "United States person" may be more difficult (requiring the knowledge of the actual participant and their legal status), but determining who is a "person ... reasonably believed to be located within the United States" is not as difficult as some make it out to be.

Needless to say, there are means of obscuring one's location, available to the technically savvy or through exlicit services for such, but seeing as the intent is to filter out the communications of those that don't go to lengths to hide their location, I don't see this as a real difficult problem (the same means can be used to hide identity too, which defeats limited and targeted surveillance to begin with).

Cheers,
8.10.2007 2:16pm
cboldt (mail):
-- Perhaps, but such expectation is not reasonable. There is no reasonable expectation that France (for example) has any restraint on such surveillance. It would be foolish to claim that people expect more privacy from US than France or Russia wrt international communications. --
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Most people don't have as much concern over being intercepted by a government that they are NOT under the direct control of, as they do with being intercepted by the government that DOES have power and control over them.
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And pre-S.1927, FISA, if a person was foolish enough to believe its own government follows its own laws, did have a different requirement or hurdle for permitting warrantless (no cause) surveillance -- that being, under old-FISA, the person on the other end had to be a foreign power or an agent of a foreign power; or the had to be was probable cause for thinking there was criminal activity.
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Post S.1927, the only requirement for warrantless (no cause) surveillance is that the other end of the communication be outside of the US.
8.10.2007 2:18pm
Crunchy Frog:
Without going into the technical details (my eyes glazed over a long time ago), the argument seems a little silly to me. If you suspect the Administration as being so unscrupulous and lawbreaking (as JaO apparently does) as to engage in conduct like attempting to reverse-target Nancy Pelosi by going after her tiramisu caterer in Naples, then why quibble about the fine details of the law? Presumably the NSA has the technical capability to listen to all of her communications anyway. Why not just do that instead of worrying about legal niceties?

It's like thinking that passing another antigun law is going to stop career criminals from shooting people.
8.10.2007 2:34pm
boris (mail):
don't have as much concern over being intercepted by a government that they are NOT under the direct control of

Yes, expected that point. Since the issue is "expectation", not "concern", and what is reasonable.

International communication offers no reasonable expectation of privacy.
8.10.2007 2:37pm
Apodaca:
Crunchy Frog, would you agree that a law authorizing career criminals, in their sole discretion, to shoot people might result in career criminals shooting more people?
8.10.2007 2:42pm
zuch (mail) (www):
[Prof. Kerr]: As a matter of constitutional law, both parties are surveilled when the government listens in on a call; there is no constitutional difference between targeting A or B when A is talking to B and the entire call is recorded.

An interesting sidenote is that in practise, it is possible (but not generally useful) to intercept only one direction of a conversation. We've noted that some CALEA equipment sometimes fails to deliver both directions (and this is usually a "bug" [in the computer programming sense]). For some purposes though, it's useful to deliver "separated content" (unlike the usual "combined" content in which a single audio stream provides the converstion of both parties); the most significant example would be for fax and modem transmissions where demodulation and decoding the transmission is technically easier if the content in each direction is delivered separately. The choice of "combined" or "separated" is up to the LEA; "separate" requires twice the bandwidth for delivery.

But from a practical standpoint, listening to just the "target" would be as useful as trying to determine the gist of the conversation of a cell call overheard in a restaurant....

Cheers,
8.10.2007 2:47pm
cboldt (mail):
-- Yes, expected that point. Since the issue is "expectation", not "concern" --
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Expectation of being intercepted by your own government (that spouts "concern over privacy") is different from the expectation of being intercepted by a foreign government.
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You're the one who drew a bogus equivalence between an American's privacy expectations relating to being spied on by France or Russia and privacy expectations relating to being spied on by the government of the US.
8.10.2007 2:52pm
cboldt (mail):
-- International communication offers no reasonable expectation of privacy. --
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I agree with that. But the cliche doesn't notice any difference as to who might be obtaining and using one's communication.
8.10.2007 2:57pm
Crunchy Frog:
Apodaca: I would be more interested in mandatory target practice, so that in the course of your average drive-by shooting, only the intended target was hit instead of the fourteen innocent bystanders who were in the wrong place at the wrong time.
8.10.2007 3:08pm
boris (mail):
difference as to who might be obtaining and using one's communication

But concern may depend more on opposition to an administration than just which nation is listening. It becomes too subjective. BJ is okay but W is not.

That way lies madness. Besides you infer a bogus equivalence I did not imply. Privacy specific to US is likely privacy specific to W.

At any rate there is no expectation on my part of changing your opinion.
8.10.2007 3:15pm
Just an Observer:
jrose: I suspect the courts would frown on a different interpretation of "foreign intelligence information"

I'm not sure of that at all. I would bet on the opposite outcome.

The legislative history of Title III shows that the term of art as the carve-out for NSA appeared in the original act, 10 years before FISA and its definitions were created. See passage from this CRS report last year:

As originally enacted, § 2511 contained what appeared to be a much broader exception for national security intercepts. It excluded from the coverage of Title III surveillance carried out pursuant to the “constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack . . ., [and] to obtain foreign intelligence information deemed essential to the security of the United States. . .” Congress repealed this language when it enacted FISA, and inserted § 2511(2)(f), supra, to make the requirements of Title III or FISA the exclusive means to authorize electronic surveillance within the United States, and to “put[] to rest the notion that Congress recognizes an inherent Presidential power to conduct such surveillances in the United States outside of the procedures contained in chapters 119 and 120 [of title 18, U.S. Code].” Subsection (2)(f) was intended to clarify that the prohibition does not cover NSA operations (as they were then being conducted) and other surveillance overseas, including that which targets U.S. persons.” [Footnotes omitted. Emphasis added]


Besides, in practice it matters little what a court would decide, because there is little prospect that this question would ever come before a court. The executive branch interprets this law for itself. And especially in the Bush administration, we can assume that means the most expansive reading possible of "foreign intelligence information" will be adopted.
8.10.2007 3:16pm
boris (mail):
most expansive reading possible of "foreign intelligence information" will be adopted

Anything less would be regarded as malfeasance in the event of another 9-11.
8.10.2007 3:22pm
Cecil Turner (mail):
I'm not a lawyer, and may be reading this incorrectly, but I interpreted the "clarification" somewhat differently. Per the LA Times coverage of the earlier ruling, it appeared the main concern was over purely foreign-to-foreign communications (or foreign-to-unknown):
But other officials said the ruling's reach was broader, affecting cases "where one end is foreign and you don't know where the other is" - meaning warrants would be required even when it was unclear whether communications were crossing the United States or involved a person in the United States.
If so, that would appear to put the burden on the government to positively ascertain the location of both ends of a conversation before they could monitor. The exemption seems to speak directly to that point, removing the presumption of protection:
SEC. 105A. Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.
That would allow acquisition as long as the target was "reasonably believed" to be foriegn. However, note that it does not change the definition of electronic surveillance, in particular:
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States . . . [except 2511]
If one party to the conversation were known to be a person in the US, it appears to me the exemption would no longer be valid. Moreover, the "non-surveillance" procedures in 105B specify as a requirement that: "(2) the acquisition does not constitute electronic surveillance;" which AFAICT can only mean that a "known US person" not be a party to the conversation.
8.10.2007 3:22pm
cboldt (mail):
-- But concern may depend more on opposition to an administration than just which nation is listening. --
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So might expectation.
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-- you infer a bogus equivalence I did not imply --
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Oh. I see it now. You took my statement "most people expect privacy in their general foreign communications," and by ignoring other elements in context, you made a straw man. I missed that the first time around.
8.10.2007 3:23pm
Just an Observer:
Cecil Turner: If one party to the conversation were known to be a person in the US, it appears to me the exemption would no longer be valid.

But so long a one party is "reasonably believed" to be outside the United States, the government just says the surveillance is "directed at" that party, not the U.S. person. Presto. The surveillance then cannot be legally construed to be "electronic surveillance," so it is outside the scope of FISA.
8.10.2007 3:38pm
Just an Observer:
jrose,

Also, when Congress enacted 18 USC 2511(f) in 1978, it took pains to incorporate by reference the new definition of "electronic surveillance" from 50 USC 1801, but omitted any such reference to that section's new definition of "foreign intelligence information."

Given the legislative history of 18 USC 2511 and its historical use of the term, "foreign intelligence information," I think it would be hard to argue that Congress intended in 1978 to incorporate the definition it pointedly left out.

So while I am certain that David Addington and his accolytes can convince themselves of an expansive reading of 18 USC 2511(f), I am even pretty sure they could persuade a judge that was the legislative intent, if it came to that.
8.10.2007 3:52pm
Cecil Turner (mail):
But so long a one party is "reasonably believed" to be outside the United States, the government just says the surveillance is "directed at" that party, not the U.S. person.

I recognize that's the interpretation most here are making, but I don't think it makes sense with an objective reading of the rest of the statute (as amended). Especially, it seems to invalidate section 101 (f) (2) and render insensible the restriction in 105 B (2) . . . if it just defined that term not to apply. Moreover, it appears to exceed (considerably, by that interpretation) what the White House asked for.
8.10.2007 4:19pm
Just an Observer:
Moreover, it appears to exceed (considerably, by that interpretation) what the White House asked for.

No kidding! Welcome to Washington, Mr. Smith. You have been had. Now, about those Boy Rangers ...

Did you really believe that White House "Fact Sheet?"
8.10.2007 4:28pm
cboldt (mail):
-- it seems to invalidate section 101 (f) (2) --
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It doesn't "invalidate" that section. It modifies (or clarifies, depending on how one construed it before) how that section will be construed.

Sec. 105A. Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.


-- render insensible the restriction in 105 B (2) --
.
After pondering the function of 105B(2) at some length (my pondering being the result of 105B(2) seeming to duplicate the general subject matter of 105B), I have concluded that the function of 105B(2) is merely to insure that the certified determination by DNI and AG recites "the acquisition does not constitute electronic surveillance." In other words, 105B starts with the proposition of allowing authorization, given a certified determination. Then it goes on to list the elements that must be present in the certified determination, 1, 2, 3, 4, 5 (and expressing that there is no requirement for the certified determination to identify the specific facilities, places, premises, or property), then indicates that the certified determination is to be transmitted to a court, then says that such transmission must occur in order for the authorized surveillance to commence.
8.10.2007 4:49pm
boris (mail):

But concern may depend more on opposition to an administration than just which nation is listening. --
So might expectation

ISTM you conflate "expectation" with reasonable expectation which should not depend on administration.

Your "straw man" comment mystifies me. The term "bogus equivalence" refers to your claim that I drew no distinction between France listening to international communication and the US. I thought to add the "concern" caveat but decided not to since it should not matter if reasonable expectation is what's relevant.
8.10.2007 4:53pm
MacGuffin:
Cecil,

I don't see how JaO's reading of 105A "invalidates" 50 U.S.C. 1801(f)(2) -- assuming that is what you intended by "101(f)(2)". Under JaO's reading, that which falls within the scope of the definition of "electronic surveillance" is significantly reduced, since 1801(f)(2) now only applies to wire communication to or from a person in the United States to which no person reasonably believed to be outside the United States is a party, but that doesn't make 1801(f)(2) invalid.
8.10.2007 4:53pm
boris (mail):
You have been had.

Did you really believe that White House "Fact Sheet?"

But concern may depend more on opposition to an administration than just which nation is listening. --
Case in point.
8.10.2007 4:56pm
cathyf:
The lawsuit accuses MCI/WorldCom and ONVOY of orchestrating a scheme called the "Canadian Gateway Project," in which they worked with other telecommunications companies to reroute MCI customers' domestic phone calls through Canada to deceive and defraud AT&T into paying hefty termination fees for terminating calls to high-cost independent telephone companies in the U.S.
The interesting thing here is that it shows that the telcomms are perfectly capable of routing a purely domestic call across the border, and that the only problem was that MCI/WorldCom was using it to defraud AT&T. If the government were to pay the telcos extra expenses for re-routing the calls, then they could basically monitor any "domestic" call without warrants. And the new act apparently explicitly provides for paying the telcos expenses, and also makes it impossible for them to complain about the privacy aspects in open filings.
8.10.2007 5:08pm
Cecil Turner (mail):
Did you really believe that White House "Fact Sheet?"

Ah, so the President proffered a completely different demand to Congress, and they felt obligated to capitulate, rather than point out it's different from his public postion, because . . .? Sorry, but there's gotta be a better answer.

It modifies (or clarifies, depending on how one construed it before) how that section will be construed.

By that interpretation, it clarifies to a completely different meaning (where both ends of the communication--or the "target"--are in the United States), whilst leaving the now-defunct definition intact. I was trying to envision a technical reason (e.g., to avoid complicating the sunset provision), but it still makes better sense as a clarification on the recent (classified) ruling.

I have concluded that the function of 105B(2) is merely to insure that the certified determination by DNI and AG recites "the acquisition does not constitute electronic surveillance."

After first providing a definition that allows it to be "construed" that way? Again, this appears pointless.
8.10.2007 5:08pm
cboldt (mail):
Here are 1801(f)(2) and 105A read together:

(f) "Electronic surveillance" means--
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States
.
[but this shall not be] construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.
8.10.2007 5:11pm
cboldt (mail):
-- After first providing a definition that allows it to be "construed" that way? --
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Yes. That part of 105B is a laundry list of what must be recited in the certified determination.
.
See, as a parallel, the recitations required for an 1804 FISA warrant, e.g., the need to recite "that the certifying official deems the information sought to be foreign intelligence information" stated at 1804(a)(7)(A), and other mandatory recitations in application for a court order approving electronic surveillance that are "already" or "elsewhere" defined.
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If one adopts the position that a telephone call where one person in the call is a US person comes in the ambit of S.1927's regime, then one is conceding a need for warrants to undertake the TSP.
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The administration rejected this language as unworkable ...

Sec. 105A. Notwithstanding any other provision of this Act, a court order is not required for the acquisition of the contents of any communication between persons that are not located within the United States for the purpose of collecting foreign intelligence information, without respect to whether the communication passes through the United States or the surveillance device is located within the United States.


It was declared unworkable (meaning it doesn't dispose of a need to get a warrant) because, until the contents are acquired, there is no way to determine in advance that both ends of the call were not in the US.
8.10.2007 5:20pm
MacGuffin:
Cecil,

How does S1: "X is defined to be Y if P is true" followed by the clarification S2: "X is defined to be not Y if Q is true" make S1 "invalid" or "defunct"? I can only see that being the case if P is true only when Q is also true. In the case of newly amended FISA, that is simply not the case. P in S1 corresponds to the tapped communications being to or from a person in the United States, without the consent of any party thereto. Q in S2 corresponds to the wiretapping being directed to a person reasonably believed to be outside the United States. S1 and S2 can both be satisfied by the wiretapping being of communications to or from a person in the United States to another person believed to be within the United States, without the consent of any party thereto. That is what the definition of 1801(f)(2) is reduced to after the "clarification" of FISA. That doesn't make 1801(f)(2) invalid of defunct, just much reduced in scope.
8.10.2007 5:28pm
Cecil Turner (mail):
It was declared unworkable (meaning it doesn't dispose of a need to get a warrant) because, until the contents are acquired, there is no way to determine in advance that both ends of the call were not in the US.

I think that bolsters the interpretation of the clarification as designed to allow foreign-to-foreign and foreign-to-unknown intercepts. (Rather than one-end-overseas and that the intercept is "directed at" that end.) Moreover, the program review then makes perfect sense as an exercise in how to gather desired foreign intelligence while avoiding intercepts of communications of US Persons.
8.10.2007 5:34pm
Just an Observer:
Ah, so the President proffered a completely different demand to Congress, and they felt obligated to capitulate, rather than point out it's different from his public postion, because . . .? Sorry, but there's gotta be a better answer.

It's called politics.

The policization of terror won out. Yes, many majority Democrats knew very well that public posturing of the administration -- which sold this bill as being all about a surveilling foreign-to-foreign communications, which were deemed urgently important -- did not match the sweeping language of the administration's bill.

But congressional leaders were simply overwhelmed by the waving of the bloody shirt, and the political fear it engendered. See one inside view of Democratic leaders' capitulation: Why the Democrats Caved
8.10.2007 5:39pm
cboldt (mail):
-- the program review then makes perfect sense as an exercise in how to gather desired foreign intelligence while avoiding intercepts of communications of US Persons. --
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The TSP, by definition, aims to acquire, without the burden of a warrant, the communications "if al Qaeda is calling a person in the US." And now you are arguing either that there should be a warrant requirement to obtain those calls, or that the object of FISA is to AVOID intercepting those calls. Most interesting.
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The foreign-to-foreign thing is, as far as I'm concerned, a straw man or red herring put out by the administration. It never needed a warrant for any foreign to foreign acquisition, and it raises this as an effect of a court order, not as the order itself.
.
Separately, "What program review?" What triggers the various reviews, and what are the substantive issues to be considered at each review?
8.10.2007 5:45pm
Just an Observer:
boris,

I don't just swallow White House "Fact Sheets" from any administration, of either party. I have seen the public be had by both, many times over the years. So take your own partisan accusations elsewhere.
8.10.2007 5:48pm
MacGuffin:
I think that bolsters the interpretation of the clarification as designed to allow foreign-to-foreign and foreign-to-unknown intercepts.


The question of whether you think you can construct a plausibly benign interpretation of the law and its enactment is far less interesting than the questions of whether the law as enacted can be plausibly read through other than rose-colored glasses as far less benign, and of what means are available to check any Executive acting from such a less benign reading.
8.10.2007 5:50pm
Cecil Turner (mail):
How does S1: "X is defined to be Y if P is true" followed by the clarification S2: "X is defined to be not Y if Q is true" make S1 "invalid" or "defunct"?

Sorry, MacGuffin, missed your first comment . . .

My contention is that the definition of "electronic surveillance" requires only one end of the wire communication to be a US Person. If one interprets the "clarification" as meaning only that one needn't demonstrate neither end is a US Person--which may be technically difficult--then the definition remains perfectly valid.

If, however, one interprets the "clarification" as meaning one end may be a US Person as long as the target is the other end, that's a completely different meaning. To restate it:
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States . . . [and the surveillance is "directed at" the US Person]
In your syllogism, I submit there is no "P." It's "X is defined to be Y" . . . and then "X is defined to be not Y if Q is true." To quote a famous Vulcan: that's not logical.
8.10.2007 5:56pm
boris (mail):
bolsters the interpretation of the clarification as designed to allow foreign-to-foreign and foreign-to-unknown intercepts
The TSP, by definition, aims to acquire, without the burden of a warrant, the communications "if al Qaeda is calling a person in the US." And now you are arguing either that there should be a warrant requirement to obtain those calls, or that the object of FISA is to AVOID intercepting those calls. Most interesting.
I disagree and believe I understand Cecil's point. The intent of TSP is to to acquire, without the burden of a warrant, all of the al Qaeda communications. Period and the intent of the wording is to implement that end.

Whether it does so may be an open question.
8.10.2007 5:57pm
boris (mail):
what means are available to check any Executive acting from such a less benign reading

Elections.
8.10.2007 5:58pm
MacGuffin:
How do you figure, boris. There is not requirement that the electorate be informed of the Executive's actions under newly amended FISA. Quite the contrary, in fact.
8.10.2007 6:03pm
boris (mail):

I have seen the public be had by both, many times over the years. So take your own partisan accusations elsewhere.
Actually you clearly implied that this administation is lying. To now claim "well they all do", rings a little hollow.
8.10.2007 6:04pm
cboldt (mail):
The TSP, by definition, aims to acquire, without the burden of a warrant, the communications "if al Qaeda is calling a person in the US."


boris: -- I disagree ... The intent of TSP is to to acquire, without the burden of a warrant, all of the al Qaeda communications. --
.
There you go again with that straw man thing.
8.10.2007 6:06pm
boris (mail):

There is no requirement that the electorate be informed of the Executive's actions under newly amended FISA
Don't elect presidents that can't be trusted. A big reason for having a president in the first place is for national defense. To handicap and constrain a president from performing that constitutional function because they might abuse their power means you don't agree with the role the constitution assigns to presidents.
8.10.2007 6:08pm
MacGuffin:

My contention is that the definition of "electronic surveillance" requires only one end of the wire communication to be a US Person. If one interprets the "clarification" as meaning only that one needn't demonstrate neither end is a US Person--which may be technically difficult--then the definition remains perfectly valid.

Yet again, the definition also remains perfectly valid, albeit much reduced in scope, if we do not accept your interpretation of the clarification. More to the point, there is nothing logically or legally compelling us to accept your interpretation as the only one available. Most to the point, let us assume for the moment that your interpretation is indeed the best; what means are available to compel the Executive to operate under your best interpretation rather than under its own less benign interpretation that is not clearly in error?
8.10.2007 6:11pm
Cecil Turner (mail):
The foreign-to-foreign thing is, as far as I'm concerned, a straw man or red herring put out by the administration.

Due to classification, I don't think it's provable either way. But the statements from various sources are consistent. For example DNI McConnell's recent letter (scroll down to bottom of editorial):
FISA, based on the technology of 1978, specifically excluded from its scope certain types of international communications carried by radio and satellite. Today, many of those same communications are now transmitted by different means. This change in technology resulted in requiring, in a significant number of cases, that the Government seek court orders to monitor the communications of foreign persons physically located in foreign countries. To be clear -- the Intelligence Community was diverting scarce counterterrorism analysts who speak the languages and understand the cultures of adversaries to compiling lengthy court submissions to support probable cause findings on an individualized basis by the FISA Court in order to gather foreign intelligence from foreign terrorists located overseas. This is an unacceptable and irresponsible use of Intelligence Community resources. [emphasis added]
Sounds to me like he's talking about intercepting foreign communications at a US switch.
8.10.2007 6:12pm
MacGuffin:
Don't elect presidents that can't be trusted.

Sound advice. But not very useful when a president proves himself untrustworthy after taking office.
8.10.2007 6:14pm
boris (mail):

There you go again with that straw man thing.
Another invisible straw man then.

Either Cecil's statment is more congruent to your paraphrase or mine. Simply stating mine has not implied any alternative interpretation to yours. In fact yours doesn't seem coherent to me, most likely the fault is my comprehension. Still, I have stuffed no dummy with straw.
8.10.2007 6:15pm
boris (mail):

But not very useful when a president proves himself untrustworthy after taking office
Proves? If you mean W, your credibility is now shot. A difference of opinion on FISA is hardly proof. The sealed case spells out the administration position rather solidly. One might disagree with that finding but such disagreement falls rather short of proof.
8.10.2007 6:22pm
cboldt (mail):
This (Cecil Turner proffered) definition of "electronic surveillance" describes something that IS electronic surveillance, surveillance directed at the US person.

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States . . . [and the surveillance is "directed at" the US Person]


The definition in 105A uses different words to describe what is, I think, a very similar differentiation between two mutually exclusive groups "electronic surveillance" and "not electronic surveillance."
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It -IS- electronic surveillance if it is "directed at" a person reasonably believed to be located inside the United States. It is -NOT- electronic surveillance if the surveillance is directed at a person reasonably believed to be located outside of the United States.
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As an aside, the language proffered by the administration on July 27 was as follows:

Subsection (f) of section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801) is amended by inserting after subsection (f)(4) the following:

"Provided, that nothing in this definition shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States."


Interesting (but makes no substantive difference) that the clarification (or change, depending one's point of view) was to be self-contained in 1801.
8.10.2007 6:23pm
cboldt (mail):
-- Another invisible straw man then. --
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You clown! The whole point of the thread is acquisition of communications where on end is in the US, where the acquisition can be conduced without resort to a warrant, and while YOU may not believe him, President Bush has characterized the TSP as having (at least in part) the object of listening in (without the burden of obtaining a warrant) when al Qaeda calls the US.
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So you chime in and say "But you're wrong - President Bush wants ALL of the al Qaeda communications!"
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That's the straw man, probably still invisible to you. Ta ta. Argue with somebody else. Sheesh.
8.10.2007 6:33pm
cboldt (mail):
Just to clarify my point of view, I don't think McConnell is lying when he says the effect of a recent ruling was to require warrants for some communications that were foreign to foreign. I agree, he's probably talking about communications routed through the US.
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However, if he was held to "no warrant only for the communications that are foreign-to-foreign," implying or expressing "yes, warrant, if the communications is NOT foreign to foreign," he rejected the offer.
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He doesn't want the burden of a warrant to obtain traffic on a switch that handles both, foreign-to-foreign, and foreign-to-US traffic. The FISA Court doesn't want that burden either.
8.10.2007 6:40pm
MacGuffin:
If you mean W, your credibility is now shot.

Why would I or anyone else assume that the current president is the only possible member of the set Presidents who prove untrustworthy after taking office? Why do you assume that I include George W. Bush in that set? I certainly do not.
8.10.2007 6:41pm
boris (mail):

The intent of TSP is to to acquire, without the burden of a warrant, all al Qaeda communications.
Perhaps I should add: excepting purely domestic communication. I considered that implicit in context but you never know.

Given current technology and likely advancement of same, the distinction between domestic-domestic and all-the-rest is now officially blurred. The question more to the point would be allow any and all surveillance of national security threats by the executive branch or constrain it severely and ignore greater risk of major terrorist attack.

That is and should be a POLITICAL decision. Putting that question to the public is not bullying or scaremongering.
8.10.2007 6:45pm
boris (mail):
assume that the current president is the only possible member of the set Presidents who prove untrustworthy after taking office?

Didn't. See the word "If"?
8.10.2007 6:47pm
MacGuffin:
non sequitur

I'm with cboldt: Ta ta. Argue with somebody else. Sheesh.
8.10.2007 6:54pm
boris (mail):
You clown! The whole point of the thread is acquisition of communications where on end is in the US

Did not call you wrong. I used the word "disagree" with you when a more precise form would have been to "agree" with what I took to be Cecil's point. The point of the thread is not exclusive to the "one end" case. Clearly the "both ends foreign" case has been constrained by interpretation and created incentive for the FISA update.
8.10.2007 6:56pm
boris (mail):
Sorry but IF P does not assume P.

Here's how it works ...

IF P THEN Q

ASSUME P

THEREFORE Q

Here is what I wrote: "If you mean W"
That does not assume you did.
8.10.2007 6:59pm
boris (mail):
you chime in and say "But you're wrong - President Bush wants ALL of the al Qaeda communications!"

No. If you interpret my statment as implying that your statement was equivalent to "the intent of TSP is to to acquire, without the burden of a warrant, ONLY al Qaeda communications with US persons" Then you misunderstood my poorly written disagreement.

My disagreement was more directed at this: "now you [Cecil] are arguing either that there should be a warrant requirement to obtain those calls, or that the object of FISA is to AVOID intercepting those calls". Which I didn't get from Cecil's post at all. ISTM his assertion was simply that a reasonable intrepetation of the clarification was to allow surveillance of all AQ communication without warrant no matter who or where the other end was.
8.10.2007 8:45pm
boris (mail):
I just noticed that the cboldt 5:06pm post omitted the specific part of the earilier post (quoted above) I disagreed with. Would have clarified it better had I noticed that earlier.
8.10.2007 10:05pm
aka:
Orin Kerr says I'm not sure what of my post was "crediting" as compared to "reporting".

How about that last line, "Whether you think the legislation is a good idea or a bad one, I think it [willingness of the White House to make statements] helps everyone to get a better sense of how the new law is likely to be implemented"?
8.11.2007 1:02am
cboldt (mail):
.
While in the process of reviewing statutory references to FISA and other(including some actual history of revisions), pronouncements by the administration on the subject of the terrorist surveillance program, and the history of proposed statutory revisions, I came on the following from September of last year.
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The administration promulgated a policy statement expressly supporting Heather Wilson sponsored H.R.5825. Some parts of this bill bear a close resemblance to the recently-passed S.1927. I'll cite the redefinition of "electronic surveillance" shortly, but in addition to that change, the contents of the AG's certification under H.R.5825's warrantless surveillance authority ("this is NOT electronic surveillance") are nearly word-or-word the same as in S.1927.
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Repeat (so it's not mistaken for a claim relating to the recitation comprising the definition of "electronic surveillance") - the contents of the AG's certification under proposed H.R.5825 are nearly word-for-word the same as the contents of the AG's certification under S.1927.
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The administration also expressed support for Senator Specter sponsored S.3931.
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Both H.R.5825 and S.3931 proposed revisions to the definition of "electronic surveillance" recited at 50 USC 1801(f). The proposed redefinition is NOT nearly word-for-word the same when comparing H.R.5825/S.3931 with S.1927.
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As between H.R.5825 and S.3931, the *only* difference in the statutory recitation is that the House version does not have the *THE* indicated below.


(f) 'Electronic surveillance' means--
(1) the installation or use of an electronic, mechanical, or other surveillance device for acquiring information by intentionally directing *THE* surveillance at a particular known person who is reasonably believed to be in the United States under circumstances in which that person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; or
(2) the intentional acquisition of the contents of any communication under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are reasonably believed to be located within the United States.


As others pointed out, redefinition of "electronic surveillance" plays into 18 USC 2511(2)(f) and into Executive Orders that flow from FISA, e.g., Carter's EO's 12036 and 12139.
.
A number of points. First, the redefinition of "electronic surveillance" has been kicking around for close to a year, at least. Second, the redefinition of "electronic surveillance," being repeated and supported by the administration over that period of time, reinforces a conclusion that the administration desires to limit the definition of "electronic surveillance" in a way that permits the acquisition of foreign-to-US/US-to-foreign communications without the encumbrance of a warrant. Third, that whatever "the problem" with the interaction of FISA with the TSP was, the administration saw the redefinition of "electronic surveillance" as a means to resolve that problem before they pronounced the existence of a "foreign-to-foreign" issue.
8.11.2007 10:49am
Observer (mail):
Thanks to all above, especially for the technical explanations.

I'm not sure how I come out on all this. The technical aspects of surveillance are far more complicated than I thought; this will require some pondering.
8.11.2007 11:13am
boris (mail):
Summary List of the surveillance situations under recent discussion:
(1) US to US ..... warrant required
(2) US to Unknown .... warrant required
(3) US to Foreign .... warrant required
(4) Foreign to US ....no warrant required
(5) Foreign to Unknown ....no warrant required
(6) Foreign to Foreign ....no warrant required
Where the format “A to B” indicates A is the target, not necessarily the initiator. Based on the WH Fact Sheet statement:
[Suggestion that] a court order should be necessary before our intelligence professionals are able to gather any information about a foreign target who happens to contact someone in the United States frequently. This is unacceptable.
The language proffered by the administration on July 27 ...
1801 Definition (f) “Electronic surveillance” [requiring warrant] means
(1) Target is US person
(2) Target is inside the US (with exception)
(3) Both parties are in US (no exception)
(4) Inside US, public expectation of privacy, no specific target
Provided, that nothing in this definition shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States [foreign target].
The proviso certainly seems intended to implement the Fact Sheet statement and the Summary List. Unlikely that it can be interpreted to apply only to (6) from the Summary List. As written there is no conflict between the proviso and Definition(f)(2). If (2) instead should read “One party is inside the US” then conflict would resolve in favor of the proviso. In effect that simply reverts to my paraphrase.

Technology has apparently moved most communication of interest into Summary List categories (2) and (5), US to unknown, and Foreign to unknown. Warrant requirement would depend on the location of the target (or packet search parameter if you prefer). Any restriction on (5), no matter how well intentioned, would be unacceptable and inconsistent with executive constitutional role wrt national security.

IMO it is Summary List categories (3) and (4) that are used as red herrings. Even if a reasonable case could be made that (4) should require a warrant, the impact on (5) takes precedence. Practical concerns regarding effective national security argue against excessive concern on that point. It has repeatedly been pointed out that domestic surveillance of a crime boss or drug kingpin puts non target contacts in exactly the same privacy compromise. A principled consistent objection would apply to both situations IMO. Instead, the domestic analogy is dismissed mechanically with no regrets for non target contacts.

I will have to examine cbolt's claim that Summary List (3) is is to be included in the "no warrant" category
8.11.2007 11:25am
cboldt (mail):
.
Interested folks will want to read the governments proposed 66 pages of FISA revisions - and HR 5825 from last September is maybe a close proxy.
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Skimming through H.R.5825, one will find (in addition to the redefinition of "electronic surveillance"):
.

* redefinition of 1801(b)(1) "agent of a foreign power" by adding a new category "D"
* striking the 1801(h)(4) aspect of minimization
* redefinition of 1801(l) "surveillance device"
* redefinition of 1801(m) "contents"
* striking 1804(a)(11), a recitation required in application for court order
* striking 1804(b), relating only to interceptions of communications of foreign powers
* at 1806(i), requiring the destruction of all communication, not just radio communication (this is a good section to read - text below)
* Section 10 of H.R.5825 is the grant of immunity back to 11 Sept 2001
* Warrantless wholly-domestic surveillance (and physical entry per 1829) may be undertaken for up to 90 days following an armed attack against the territory of the United States, with the declaration coming from the President, not a declaration from Congress
* Warrantless wholly-domestic surveillance for an indefinite number of up to 90 day periods upon a presidential determination that the United States has been the subject of a terrorist attack
* Warrantless wholly-domestic surveillance for an indefinite number of up to 60 or 90 day periods (60 days when the target is a US person) upon a presidential determination that there exists an imminent threat of attack likely to cause death, serious injury, or substantial economic damage to the United States (classified determination communicated to congressional leadership and FISA court, but not to the public)


50 USC 1806(i) In circumstances involving the unintentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States, such contents shall be destroyed upon recognition, unless the Attorney General determines that the contents indicate a threat of death or serious bodily harm to any person.
8.11.2007 11:41am
cboldt (mail):
50 USC 1801
Paraphrasing the definition of "electronic surveillance" at (f) ...
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(f)(1) wire or radio communication, sent or received by known, targeted US person with REP located in US
(f)(2) wire communication to or from any (targeted or not) person with REP located in the US where acquisition occurs in the US
(f)(3) radio communication of any (targeted or not) person with REP, where all parties in radio contact are located in US
(f)(4) installation of a surveillance device in the US to acquire communications ** other than radio or wire ** where a person has REP (e.g, spoken word, sign language -- maybe mail or courier)
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To test the effect of S.1927, append to each of those four, "unless the surveillance is directed at a person reasonably believed to be located outside of the United States"
The result of that appending is nonsense for (f)(3); I can't imagine how it would play for (f)(4); haven't though much how it affects (f)(1), and represents a sea change in the construction of (f)(2)
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- Electronic surveillance authorization without court order
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Under the terms of FISA, if it's not electronic surveillance, it does not require a court order
If it IS electronic surveillance, if can proceed without a court order per 1802 -- although I haven't yet played the effect of S.1927 on 50 USC 1802
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It's important to remember the limitations implied in the "foreign intelligence information" aspect that permeates FISA. I believe there is much more power (and weakness) in that term of art, than there is in the construction of "electronic surveillance."
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In a related vein, one should look for government efforts to modify/broaden the construction of "foreign intelligence information" broadened as well, just as the government currently argues the
18 USC 798(b) "communication intelligence" phrase should be construed to include policy decisions within the ambit of procedures and methods used used in the interception of communications.
8.11.2007 1:08pm
boris (mail):
and represents a sea change in the construction of (f)(2)

Doesn't it just change (targeted or not) to (targeted)?
8.11.2007 1:47pm
cboldt (mail):
-- 3. US to Foreign .... warrant required --
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Presumes the US location is not the suspected al Qaeda agent or sympathizer. Administration pronouncements have carefully avoided a firm attachment to the limitation that the Al Qaeda component of a communication be located outside of the US. Just a few examples, I'm sure there are more.
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"The program is carefully administered, and only targets international phone calls coming into or out of the United States where one of the parties on the call is a suspected Al Qaeda or affiliated terrorist." Aug 17, 2006
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"The NSA's terrorist surveillance program is targeted at al Qaeda communications coming into or going out of the United States." January 22, 2006
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"the terrorist surveillance program described by the President is focused solely on international communications where professional intelligence experts have reason to believe that at least one party is a member or agent of al Qaeda or an affiliated terrorist group." January 25, 2006
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"So to prevent another attack, I authorized the National Security Agency -- consistent with the Constitution and laws -- to intercept international communications in which one party has known links to al Qaeda and related terrorist groups." May 13, 2006
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And the entire TSP was and is intended to be conducted without resort to a warrant, and was (and presumably at the time it was "brought under the umbrella" of the FISA Court in January 2007) conducted without resort to a warrant.
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-- Doesn't it just change (targeted or not) to (targeted)? --
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No. It altogether removes (f)(2) from the scope of "electronic surveillance" when the surveillance is directed at a person outside of the US. The nature of the person in the US is immaterial as to defining "electronic surveillance" once the surveillance is directed at a person outside of the US.
8.11.2007 3:17pm
cboldt (mail):
And now, having thought a little about the effect of S.1927 on 1801(f)(1), I conclude that the limitations of (f)(1), like the limitations of (f)(2) are immaterial when the surveillance directed at a person reasonably believed to be located outside of the United States.
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If the acquired wire or radio communication are sent or received by a known, targeted US person with REP located in US, and the surveillance was directed at a person reasonably believed to be located outside of the United States, then the surveillance activity is not "electronic surveillance." No warrant.
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It makes sense. There is no way for one to know, in advance, whether a person reasonably believed to be located outside of the United States is communicating with a known, targeted US person. It's the reverse of the mafia don calling the pizza parlor -- it's the pizza parlor calling back.
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That there are in fact targeted persons in the US should not have a bearing on the need for a warrant for surveillance directed at a person reasonably believed to be located outside of the United States.
8.11.2007 3:57pm
boris (mail):
3. US to Foreign .... warrant required

Administration pronouncements have carefully avoided a firm attachment to the limitation that the Al Qaeda component of a communication be located outside of the US.

That's true and my Summary List is necessarily simplistic. I would claim in it's defense that a known AQ in the US would be probable cause and a known AQ outside the US would be the target, hence Foreign to US ....no warrant required.

It altogether removes (f)(2) from the scope

Also true based on your paraphrase. Since my paraphrase of the language proffered by the administration on July 27 seems to fit my Summary List so well I question why the administration would deviate by so much.

In my paraphrase all points remain valid without conflict.
1801 Definition (f) “Electronic surveillance” [requiring warrant] means
(1) Target is US person
(2) Target is inside the US (with exception)
(3) Both parties are in US (no exception)
(4) Inside US, public expectation of privacy, no specific target
Provided, that nothing in this definition shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States [foreign target].
8.11.2007 6:51pm
boris (mail):
Well, if a US person is outside the US there seems to be a conflict. A US person inside the US appears to have the advantage of no exceptions.
8.11.2007 7:00pm
cboldt (mail):
-- Well, if a US person is outside the US there seems to be a conflict. A US person inside the US appears to have the advantage of no exceptions. --
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Sometime your comments are rambling or diversionary (straw man army, unite!). On other occasions, like above, your arguments are, maybe because they are highly ambiguous, cute.
8.11.2007 8:51pm
boris (mail):
Aw shucks, I just meant item(1) doesn't collapse into item(2). When they do that it's a bad sign.
8.11.2007 11:00pm
boris (mail):
My corrected paraphrase becomes:

1801 Definition (f) “Electronic surveillance” [requiring warrant] means

(1) Target is US person inside the US
(2) Target is inside the US (with exception)
(3) Both parties are in US
(4) Inside US, public expectation of privacy, no specific target

Provided, that nothing in this definition shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States [foreign target].
The only difference is that the US person has stronger requirement for warrant than a person in the US.
8.12.2007 8:40am