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Kerr and Lederman Battle it Out Over FISA and the Supreme Court At BloggingHeads TV:
Marty Lederman and I recently recorded an episode of BloggingheadsTV. (Yes, weirdly that makes it the second VC/Balkinization pairing this week. Go figure.) Anyway, the episode was just posted a few moments ago, and you can see it here.

  Marty and I spend about an hour debating the new FISA legislation. We then spend the next 25 minutes on the Boumediene case and the issue of habeas rights for detainees at Guantanamo and elsewhere. This was our first Bloggingheads, and it was a pretty interesting experience; let us know what you think (in a civil and polite way, naturally).
cboldt (mail):
Early on, where you discuss FISA 1978's scope, you lump "foreign intelligence" all together, and miss the warrantless/warrant delineation in the statute, where terrorists are (for reasons unknown to me) in the warrant required regime.
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FISA 1978 had a very different scope of warrantless surveillance of a conversation that a person in the US might be a party to, from what FISA 2007 has. The reason for the change is couched, by some, as a being driven by a technical inability to separate foreign-to-foreign from datastreams appearing on US equipment. So do a mind experiment, where the technological problem is resolved - the switch can spit out all the foreign-to-foreign material. In this make-believe regime, would the administration still want to modify FISA-1978? YES! It's necessary to do so in order to engage in warrantless review of material on a US-switch, with one party in US, one party outside of US, and one party terrorist.
8.17.2007 6:55pm
cboldt (mail):
Nice job guys ... my comments are being made in realtime as I listen, so be gentle with my criticisms too. You may clarify some of these points later.
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It is false that a judge "will review" the minimization procedure. The minimization isn't even viewed by the judge, unless the telco objects to the order. If the telco objects to a specific order, then the judge will open the sealed certification and discern the minimization procedures specified therein.
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The "clearly erroneous" review is limited to the method the DOJ uses to determine that surveillance is directed at a person outside the US. That determination is trivial, if the wire being sniffed is an international wire.
8.17.2007 7:08pm
cboldt (mail):
I'm fishing for a legislative solution too ... so some of this will be rambling and meant just to capture my thoughts.
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Just as terminology, I see 1802 warrantless as "inside FISA" ... the warrantless tap is communicated to the FISC.
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"Directed at" can be viewed as looking at an empty field, or an unknown field (or "directed at" could be toward a single identifiable person). FISA-2007 lets the government look at all communications where one side is outside of the US. That's where they direct their attention. I don't see the addition of "solely" as having any effect whatsoever, because the surveillance is already "solely" that which includes one side outside of the US. Some of those contacts will involve people that the US believes are bad guys in the US (foreign spies, terrorists, etc.), and most will be "innocent" chatter.
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In that context, minimization can occur only AFTER the acquisition. IOW, minimization is a meaningless notion before the acquisition, because the acquisition can be (in principle) everything on the field where one end is outside the US.
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Foreign embassy activity can be viewed without a warrant, period. The fact that innocent US people contact the embassy does not affect the right to surveil the embassy.
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Same idea, when the right is to surveil the entire field of communications where one end in outside the US.
8.17.2007 7:21pm
cboldt (mail):
FISA-2007 gives the government the right to acquire anything on a US--foreign wire, no warrant required.
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It's error, IMO, to distinguish based on whether the bad-guy is US-based or outside of US. Either way, NO WARRANT.
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Now, if there is a desire to focus solely on US-bad-guy (who was found in a warrantless review of material that had one side outside of US), and to set up a focused surveillance on this person, a warrant will be required. But, there is no obligation to get a warrant of that nature. The government might decide to target the foreigner, or to keep watching the foreign field and catch bad guy-US if he shows up again.
8.17.2007 7:31pm
cboldt (mail):
The function of the legislation is to minimize legislating interference with keeping an eye on US--foreign communications. There is certainly a technological component that limits the ability to catch bad guys.
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The minimization submittal is repeated with each order, where each order is directed to a telco. Minimization is not submitted to the telco, it is sent to the FISC in sealed submittals. But minimization is NOT a one-shot submittal. The only one shot submittal is how DOJ determines without clear error that the communications being acquired have one end not in the US. "How do you know you're looking at material originating or landing outside of the US?"
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Criminal evidence that is acquired in a warrantless surveillance, where a significant purpose of the warrantless surveillance was foreign intelligence, is admissible -- no warrant required. In effect, criminal probable cause is bootstrapped from the warrantless foreign-intelligence presumption that attaches to all communications where one end of the communication is outside of the US.
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The compelled access isn't a big deal, because the only people who will get warrantless orders are people who own one or both ends of an international wire.
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By limiting the order to those (international) wires, the DOJ makes all challenges into "frivolous" challenges.
8.17.2007 7:42pm
cboldt (mail):
If the government wanted to grab the other end of a wire that came out of US-based al Qaeda University, where the other end is ALSO in the US, a warrant would be required. This is a narrower search, and the target would be a person or people at US-based al Qaeda University.
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As I listen, you are moving to the Boumediene case. I doubt I'll be able to comment on that exchange off the top of my head.
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Again, thanks for having the dialog, and making it public. Most enjoyable. Nice to see you!
8.17.2007 7:49pm
Steve P. (mail):
"For the geeks that are that far into this video…"

Thanks a lot, Prof. Kerr.
8.17.2007 8:54pm
OrinKerr:
A term of affection, mind you.
8.17.2007 9:00pm
M. Lederman (mail):
Most definitely. This from Wikipedia: "While being described as a geek tends to be an insult, the term has recently become less condescending, or even a badge of honour, within particular fields and subcultures."

The canonical box set is fabulous, by the way.
8.17.2007 9:06pm
Howard Gilbert (mail):
The govenment starts with a claim that aliens held outside the US have no right to Habeas. Note that this argument says nothing about al Qaeda, or whether there is a war, or why they are held. If the geographical argument held, then maybe drug smugglers captured at sea could be warehoused at Guantanamo beyond the reach of courts. The government depended on Eisentrager and got blindsided by Hamdi.

Separately, there are many who would argue that enemy combatants, especially those who are indisputably enemy combatants like the German POWs during WWII, don't have a right to Habeas. There were 435,000 axis POWs during WWII and none claimed Habeas. However, a precedent of eactly 0 cases is ambiguous, and while some may claim that constitutional Habeas does not extend to POWs, others may simply suggest that eveyone can get Habeas, but once a POW gets into court through Habeas he has no standing, no rights, and no issues that he can meaningfully present to the court.

Hamdi is ambiguous because it notes that some detainees dispute their status as enemy combatants, claiming rather to be innocent civilians in the wrong place at the wrong time. Civilians would have rights that the courts might protect, and if a detainee has not been determined to be an enemy combatant by some process the court accepts as valid, then the safe thing is to provide access as if the claim of civilian status is valid. That interpretation does not answer the question of what access must be provided once enemy combatant status has been determined authoritatively.

Hamdi also outlined what would become the CSRT process. Then Congress added a review of the CSRT decision by the DC Circuit.

So originally the goverment's position was based just on geography based on Eisentrager. The MCA then tried to forclose Habeas, but it added a new element beyond geography that the detainee had to be classified as an "enemy combatant" (so much for the idea of holding drug smugglers).

The Blog Debate makes a convincing prediction (by both heads) that the Court will now be forced to confront the constitutional question and will extend common law Habeas to Guantanamo. That by itself would be enough if there were any drug smugglers detained on the base.

However, given that everyone agrees that the language does not trigger the Suspension clause, there is an second completely different interpretation to the language "no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action, including an application for a writ of habeas corpus, pending on or filed after the date of enactment of this Act, against the United States or its agents, brought by or on behalf of any alien detained by the United States as an unlawful enemy combatant"

Instead of suspending Habeas, that is precluding entry into the court, the language can also be interpreted as stripping standing or any claim of rights under statute from any alien designated as an unlawful enemy combatant. At that point Habeas may get you in the door, but unless you have consitutional rights being violated you may now be precluded from raising any other issue.

Now aliens overseas generally don't have constitutional rights. Even if they do in some place like Guantanamo, enemy combatants captured in war generally don't have constitutional rights (435,000 Germans and Italians were held in places like Mississippi where the geography question never arose). Furthermore, what is now new is that there is now a post-Hamdi process for formally determining if a detainee is an enemy combatant, including review by the DC Circuit, and this MCA language seems make that determination binding on all other courts. Even if Congress cannot Suspend, it has broad consitutional powers to determine what issues may be brought before a court and these jurisdictional powers, explicitly mentioned in the MCA language, remain even after Habeas is granted.

In 1780 would Habeas rights have extended to a place like Guantanamo? Thats the consitutional geography question. Then you also have to ask what type of proceeding would Habeas have been in 1780 when invoked by a captured enemy prisioner of war. Because if all you mean by Habeas is acess to the court, then that by itself may be worthless. To have some meaningfull process left that Congress did not strip away through the MCA, there has to be some essential legal process that the 1780 courts would have applied to even POWs that might be protected by the Suspension clause.

A lot of people seem to just assume that "if we get Habeas then it will be the same proceeding we see all the time in criminal cases." That makes no sense. Whatever detainees end up with will be constructed argument by argument, case by case, starting with nothing and probably ending up with not much more.
8.17.2007 10:07pm
Just an Observer:
Orin,

Thanks to both of you for subjecting yourselves to the reactions of us here in the Peanut Gallery. Here are some of mine on the FISA stuff:

1) You seem confident that minimization procedures are a significant safeguard that prevents this legislation from being used for reverse-targeting U.S. persons. But minimization procedures are defined within FISA. Once section 105A removes this class of communications from the scope of FISA, what requires any minimization at all? (AFAIK, other surveillance already exempt from FISA's scope requires no minimization.)

2) You focus mainly on a simple scenario where there is an identified target abroad. There undoubtedly are many situations that fit your scenario, and I don't really argue with that. But why are you sure that are not also many others that do not, and content is acquired with no target identified except by location? What in the statute prevents the government from "acquiring" large chunks of international traffic, then slicing and dicing it later? (If the answer is minimization, see my question above.)

3) As I see it, these FISA amendments do not require that there be an identified target at all under section 105A . The "directed at" language is ambiguous, and avoids the terms FISA uses elsewhere when it does talk about knowm, identified targets. Would you favor legislative language that more precisely requires an identified target such as that in your example? (I doubt that the administration would accept it.)

4) I was interested in Marty's analogy to 50 USC 1802, (the foreign embassy certification exception). One thing missing from that part of the discussion, I think, is that such a procedure is within FISA, not excluded from its scope, and there are minimization requirements there, too.
8.17.2007 10:38pm
M. Lederman (mail):
JaO: Not sure quite what you mean by the notion that the 1802(a) procedure is "within FISA." It's in the statute; but so is the new 1805A. Under 1802(a), there is no FISA court order required if several prerequisites are met:


1. The AG certifies in writing under oath that the ES is solely directed at either (i) "the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers" 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."

2. The AG certifies under oath 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."

3. The AG certifies under oath that the minimization procedures with respect to such surveillance meet 1801(h) requirements (where the minimization procedures have been reported in advance to the Intel Committees).

4. The AG immediately transmits all certifications to the FISA Court.

5. The AG issues compliance reports to the Intel Committees.


Per 1802(b), the FISA Court does not have jurisdiction w/r/t such 1802(a) surveillance, "unless such surveillance may involve the acquisition of communications of any United States person," in which case the FISA court order procedures kick in.

My question for Orin and the Administration is this: If 1802 has been good enough for this category of foreign-to-foreign communications intercepted domestically, why wouldn't it be sufficient to simply amend 1802 to cover all foreign-to-foreign communications intercepted domestically (not limited to embassies or purely foreign communications facilities)? I even suggested that perhaps the requirement of a court order (with proof of probable cause that the U.S. person is an agent of a foreign power) need not kick in at the acquisition stage -- perhaps it could be triggered only by the government's application to read or maintain the U.S.-person communication.

Those alone would be vast expansions of 1802, and I think they'd be worth considering carefully. But new 1805A, of course, goes way, way, beyond even that.
8.17.2007 11:08pm
cboldt (mail):
Under FISA-1978, 1802 begins with the presumption that the communications is being acquired by electronic surveillance. If the target of surveillance is in 1801(a)(103), then surveillance can be without a warrant. If the target is a terrorist (1804(a)(4)), then a warrant is required.
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The above rule pertains regardless of location of parties, "foreign to foreign" is a canard, a red herring.
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There are two reasons that the proposed foreign-to-foreign amendment (what you think is in 1802 - but it isn't, really) was not acceptable.
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One, acquiring foreign-to-foreign material shouldn't require so much as a "good day" to any court. "Allowing" such in a statute is a superfluous recapitulation of constitutional authority. The executive couldn't warrantlessly acquire foreign-to-foreign material from a US-based switch, mostly because there was a concern that once warrantless access was permitted at a US-based switch, the people would not feel as though the oversight was sufficient.
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Second, even if foreign-to-foreign traffic could be isolated on that US-based switch, and even if the statute permitted that foreign-to-foreign material to be acquired without a warrant, the administration would STILL be stuck with requiring a warrant for the GENERIC situation (which is what the TSP describes, a generic search) of one person in US, one person out of US, and one person Al Qaeda.
8.17.2007 11:30pm
Anonymous Liberal (mail) (www):
Orin,

I appreciate you taking the time to record this (and to blog about these issues). Here's my meta-comment after listening to most of the diavolog: you strike me as having a totally unwarranted degree of trust that government officials 1) will not take advantage of the many ambiguities in the language and structure of the new FISA law and 2) will use this power solely to surveil terrorists (despite the fact that it's in no way limited to terrorism).

Given the tortured interpretations this administration has applied to existing laws in order give maximal power to the president, what makes you think they wouldn't interpret this law similarly? As JaO, Marty, and myself have pointed out, the type of surveillance governed by section 105B is not "electronic surveillance" and therefore does not fall within the scope of FISA generally (e.g., the exclusivity clause and penal provisions don't apply). So why is NSA even required to follow 105B's procedures? Do you really think government lawyers are going to interpret this law in anyway other than the way that bestows the maximum amount of authority and discretion on the executive branch?

Furthermore, history has shown that powers which can be exercised without oversight are inevitably abused. Under this new regime, basically all international communications are fair game (the government need only be directing its surveillance at someone believed to be abroad). There's no reason this has to be limited to terrorism. So why are you so confident that the abuses documented by the Church Committee won't eventually resurface? Given that the new law is in no way limited to terrorism, I find the constant example of "a terrorist in Pakistan" as unhelpful in advancing the dialogue. That hypothetical assumes away key facts. FISA was never intended to limit surveillance of bad guys; it was meant to provide a mechanism for ensuring that the government is, in fact, only listening in on the bad guys. When the only hypethetical you ever invoke is a terrorist in Pakistan, you cabin the analysis in a way that obscures key objections to the new law.
8.17.2007 11:34pm
cboldt (mail):
1801(a)(103) above should have been 1801(a)(1-3), or more clearly, 1801(a)(1), (2), or (3).
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Read that 1802(a)(1)(A)(i) more closely ... no warrant required if the acquisition relates to means of communications used exclusively between or among foreign powers. That's the MEANS of communication, their own, dedicated wire (used exclusively by). Of course there would be no warrant for that. And that also explains, in part, what terrorists would not be included in that group -- terrorists share the same means of communications that the rest of use.
8.17.2007 11:43pm
Anonymous Liberal (mail) (www):

Not sure quite what you mean by the notion that the 1802(a) procedure is "within FISA."


I don't mean to speak for JaO, but what I took him to mean was that this kind of surveillance fell within the definition of "electronic surveillance" under 1801.

Under 1802, a court order was not required, but this kind of surveillance was still considered "electronic surveillance." Therefore, FISA's exclusivity clause and penal provisions applied. The government had to follow the procedures of 1802 if it wanted to conduct warrantless surveillance of this type.
8.17.2007 11:43pm
cboldt (mail):
A court order isn't required under 1802, but check out that the AG has to submit a certification to the FISC just the same, and a fairly complex and detailed certification at that.
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But ONLY if the acquisition is via electronic surveillance as defined in 1801.
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At any rate, it's terminology. What's I sense is going on is that "under FISA" is being used to mean "requires a court order."
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I agree with the posters who say the warrantless (but certification to FISC) acquisition per 1802(a) is properly called "under FISA."
8.17.2007 11:54pm
cboldt (mail):
And too, check out the uses of the 1802(a) certification -- in case a warrantless surveillance is raised on a motion in a criminal case, the certification may be reviewed by the district court in which such trial is being conducted.
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IOW, "no warrant" doesn't equate to "no obligation to leave a detailed paper trail with the court."
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"All" (most, for sure) that is now by the wayside, because the acquisition activity is (drum roll) not electronic surveillance.
8.18.2007 12:05am
Just an Observer:
Marty,

My comment about your 1802 analogy was really just a continuation of the primary distinction I am making between stuff that is in FISA's scope at all and stuff that is not. (There is even a special provision in 1801(h)(4) granting a special 72 hour window for getting a FISA warrant, which is different and more forgiving than the 72 hour "emergency" path to a regular FISA court order so often discussed.)

If surveillance is outside of FISA, and also outside of the new FISA procedures in section 105B, there is no minimization required at all.

I did not really grapple with the central merits of your idea. It would be a rather major change relative to the FISA of 1978, because it effectively would forbid surveillance of U.S. persons' international communications, even as secondary targets, without probable cause.

Now, I think that is what many laymen, if they thought about it at all in 1978, thought was what FISA did because the actual effect was so obscure. (I may be wrong, but I don't know of an official, public authority that says radio or satellite interception is deemed to occur outside the United States. And one has to read James Bamford, etc., to learn that the NSA has had some capability to intercept a lot of U.S. cable traffic from overseas bases all along.)

But the truth is that, however obscurely, FISA did allow such acquisition, so your idea would be a significant policy shift from where the de facto balance was struck in 1978. As a policy question, I don't think it should be ruled out before the debate starts. If we actually have a transparent debate, some folks would want to shift that balance in the direction you propose. But I am betting against that as a political prediction.

What is really at issue, I think, is a very large gray area of communications content that is easily deemed "foreign intelligence information" but where the U.S. person still cannot be called an "agent of a foreign power." That has a fairly rigorous definition, which requires probable cause that such a person "knowingly" did one or more enumerated bad acts.
8.18.2007 12:08am
Anonymous Liberal (mail) (www):
Cboldt, exactly. The evisceration of section 1802 is just one of the many collateral consequences of the new FISA bill.
8.18.2007 12:10am
cboldt (mail):
Heh ... and new 105B is a lightweight oversight patina (I think it's a joke, to be honest) over this new thing called not electronic surveillance.
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Somebody will diagram the pre-post S.1927 surveillance regimes someday. I have what is, I think, a pretty good diagram in my head after careful and slow parsing of the statutes. The "in or out of electronic surveillance" is a big deal. S.1927 causes a radical shift. And even after carefully considering who could and couldn't be surveilled with and without a warrant, I didn't appreciate the ramification of losing mandatory court access to minimization (if moved for by a defendant) for warrantless activity, until re-reading the uses of the 1802(a) certification just a few minutes ago.
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Maybe Orin can summarize what he thinks the court oversight is, under S.1927.
8.18.2007 12:23am
jim:
Interesting diavlog, but you guys need to work on taking turns speaking. The constant interupting and topic changing is a little jarring and hard to follow.
8.18.2007 2:51am
MacGuffin:
Orin,

Your presumption that the compulsions of 105B will, in practice, only apply to a small number of people (i.e., AT&T, Verizon, and the like) and not to university or employer IT departments, since there would be nothing to be gained over making the intercept at the major provider switch, is not warranted or technically sound. Encrypted communications mean that there is a very real and practical advantage to be found in making the intercept closer to the endpoint of the communication (where the messages have been decrypted into plaintext) and not at the major provider switch (where the messages are still in cyphertext.) In such cases as encrypted tunnels established in virtual private networks between a corporation's various public network gateways in its international offices, or in e-mails decrypted and subsequently stored in whole or in part as plaintext on university computers, the NSA would be very much interested in making and very much prefer to make the intercept at or close to the endpoint, not at the major provider switch.
8.18.2007 11:42am
Norman Yarvin (www):
Orin, you could use a better quality microphone, like Marty has -- or maybe you should just turn down the volume somewhere in the chain to avoid clipping.
8.18.2007 2:02pm
Norman Yarvin (www):
If you're intercepting communications from some guy in Pakistan, it's not at all a technical stretch to figure that calls he makes to the US can be stored for later analysis. All the other calls he makes are probably being stored for analysis, so to store the calls he makes to the US doesn't require any additional hardware or software. It certainly doesn't require storing everyone's overseas calls (which would be a truly massive technical effort). Maybe the law only recognizes two possible legal statuses for a call -- one where it can be listened to immediately, and another where it can't be listened to at all, ever -- but if so, that's just wilful blindness in the law.
8.18.2007 3:51pm
OrinKerr:
McGuffin,

If I follow your argument, you are assuming the monitoring is directed at a known person in the U.S., such that the U.S. can go to the endpoint of that known person in the U.S., and use technical means to intercept the communication when still in plaintext.

If this were the case, your point would obviously right. But the statute does not apply in those situations. It does not apply to monitoring on an endpoint believed to be in the U.S. Given that, I'm not sure why my assumption is "not warranted or technically sound."
8.18.2007 3:59pm
jrose:
My question for Orin and the Administration is this: If 1802 has been good enough for this category of foreign-to-foreign communications intercepted domestically, why wouldn't it be sufficient to simply amend 1802 to cover all foreign-to-foreign communications intercepted domestically

Because of the problem of not knowing whether the non-targeted party is in the USA. I agree with Orin that we shouldn't require probable cause if the surveillance is in good faith directed at the person outside the USA, and thus the law appears reasonable. On the other hand, the oversight is flimsy. I don't see why Orin trusts the Administration to act in good faith.

How about instead: 1) no new exclusions from the definition of electronic surveillance and 2) require a FISC warrant, not based on probable cause, but rather the criteria set forth in 105B(a)(1),(4),(5) [the target is outside the USA, the purpose is to gather foriegn intelligence, and there are minimization procedures to protect US persons].
8.18.2007 4:08pm
MacGuffin:
Orin,

How am I assuming that the monitoring is directed at a known person in the U.S? Let's step back to your favorite hypothetical: The person in Pakistan involved in many electronic conversations, some of which are routed through wires in the U.S., and a few of those so routed wire communications actually connecting to a person in the U.S. For concreteness, let's say that those wire communications terminating in the U.S. are encrypted e-mails going to a technically savvy law professor's university office computer.

What is to prevent some government official from presenting the director of the IT department of that professor's university with a letter from the Director of National Intelligence and the Attorney General demanding secret access to the professor's computer in order to recover any plaintext from the Pakistani inadvertently left on the professor's hard drive, or even to install spyware on the professor's computer in order to intercept any further messages from the Pakistani as they are decrypted? How is this outside of 105B(e) of the PAA?
8.18.2007 4:38pm
Just an Observer:
Orin: But the statute does not apply in those situations. It does not apply to monitoring on an endpoint believed to be in the U.S.

Apologies for butting in, Orin. I don't understand this statement.

As you have explained elswhere convincingly, just because such a data endpoint, such as an email server, is in the United States does not mean the persons who originate or ultimately read a message are in the United States. The U.S. server could store a message I sent to Boris Rasputin in Russia, or he sent to me.

So long as a message is "concerning" Rasputin, who is reasonably believed to be in Russia, and the government is "directing" surveillance at him, it seems like it would be quite lawful for the DNI to issue a directive to the U.S. email host under section 105B so the government could gather messages to or from him.
8.18.2007 4:39pm
cboldt (mail):
OrinKerr said "But the statute does not apply in those situations. It does not apply to monitoring on an endpoint believed to be in the U.S."
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How do you reach that conclusion? The statute says it's not electronic surveillance, if the snooper is watching communications that originate or land outside of the US. Surely, some of those communications (especially when the monitoring is done from a US-based switch) contain material that originates or lands in the US. The monitor "listens to both sides of the conversation," if you will. And that results in monitoring an endpoint not only believed to be in the US, but known to be in the US.
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If, OTOH, by "monitoring," you meant "a surveillance activity that singles out a US endpoint" or (US person), i.e., "targeting" them (to the exclusion of the entire mass of communications that exists outside of the target's contacts), the analysis is different.
8.18.2007 4:41pm
cboldt (mail):
On a related note, my take of the TSP (same thing, new name when rolled under FISA oversight, same thing, different name before President Bush acknowledged it) is that is would, without a warrant, aim to acquire communications when the "al Qaeda" aspect of "one person US, one person out of US, one person Al Qaeda" was in the US. See President Bush's example, we would have listened in when Mohammad Atta (in the US) got the call -- ostensibly because we knew Mohammad Atta was on a watch list.
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Just saying, it's incorrect to presume the surveillance program operates from a paradigm where "bad guy target" is always outside of the US.
8.18.2007 4:48pm
OrinKerr:
JaO,

I think there may be a difference here between telephone calls and e-mail. If a terrorist suspect believed to be outside the U.S is using an e-mail system inside the U.S. -- that is, servers in the U.S. that store her e-mails -- then the government presumably would try to get the e-mails off the U.S. server. Helpful point.

I was thinking mostly telephone because the news reports and the folks I've talked to have suggested that this is really a telephone issue, but of course we don't know that. I wonder if that's because stored e-mails are collected using the "physical search" provisions of FISA rather than the "electronic surveillance" provisions of FISA; I haven't checked to see what if any impact the new legislation has on the physical search provisions, but that's worth checking. And then there's the Councilman issue of exactly where the line between the two may be; I haven't checked to see if the language is the same on the ECPA side and the FISA side.
8.19.2007 12:55am
MacGuffin:
Orin,

In the case of stored e-mail, how does the language of ECPA even come into play when the language of 105B is to the effect that "[n]otwithstanding any other law," the DNI and AG can compel "a communications service provider, custodian, or other person ... who has access to communications ... while they are stored" to assist in the "acquisition of foreign intelligence information" by means that "[do] not constitute electronic surveillance"?
8.19.2007 9:08am
cboldt (mail):
If, OTOH, by "monitoring," you meant "a surveillance activity that singles out a US endpoint" or (US person), i.e., "targeting" them (to the exclusion of the entire mass of communications that exists outside of the target's contacts), the analysis is different.

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Hmmm. No takers.
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I'm not sure how the combination of 1801(f)(1) and 105A will be construed. In a construction that gives priority to 1801(f) unamended, targeting a person in the US "is" electronic surveillance. But can a surveillance activity be both, targeting a US person, and be in the scope of 105A's amended "directed at a person outside the US?" If so, an argument can be made that the acquisition becomes "not electronic surveillance."
8.19.2007 9:43am
Just an Observer:
OrinKerr:

If a terrorist suspect believed to be outside the U.S is using an e-mail system inside the U.S. -- that is, servers in the U.S. that store her e-mails -- then the government presumably would try to get the e-mails off the U.S. server.


Thanks. It also seems to me that since both an originating and receiving email server store a copy of messages, the 105B directives could be applied to U.S. email hosts whose domestic users send or receive messages to overseas server used by the person of interest -- of course "directing" the surveillance at the foreign parties.

In general, I thought your remarks on bloggingheads too readily surmised that the recipients of such directives would almost always be telecoms. It seems to me that various email hosts, ISPs, and general Internet hosts for all kinds of technologies would be the more likely recipients. These sectors, unlike international telecom, are fragmented and less likely to cooperate without compulsory process.

By contrast, there are only a few big international telecoms operating at the network layer for both telephony and IP-based communications, and they are reported to have cooperated voluntarily already with the "TSP." If they continue to cooperate voluntarily, it seems to me that it is not in the government's interest to employ the 105B procedures at all. Nothing in 105A says the government must use 105B process to form its reasonable belief about the location of the persons of interest. The "clarification" of 105A stands alone.
8.19.2007 4:50pm
anduril (mail):
cboldt, you're raising some good questions here, but let me suggest an added factor--beyond technology--that has to be taken into account. I think it's important to also factor in the historical context of FISA 1978: what threats did the authors of the legislation see as real. I suggest that FISA 1978 was primarily built atop a Cold War paradigm in which the primary bad guy, the then Soviet Union, conducted "traditional" espionage against the United States in a number of predictable ways: by utilizing spy outposts operating out of diplomatic establishments (embassies, consulates, trade organizations, missions, etc.) located within the targeted host; by servicing "illegal" agents (think Abel, for example) within the targeted host, who communicated with the Soviet Union via radio as well as by other means; by operating recruited nationals within the targeted host (think Rosenbergs), some of whom traveled overseas to meet their controllers and also communicated overseas; attempts to recruit US persons who were themselves stationed outside the United States (especially consider diplomats and military personnel).

While terrorism was addressed by FISA 1978, I doubt that anything like the current state of affairs was ever envisioned. So, we have a situation in which FISA 1978 is constantly tweaked, but the basic underlying assumptions are never subjected to a full scale review and reconsideration. Why not? Largely for political reasons: the Republicans were afraid to challenge the FISA 1978 regime's underlying assumptions because they were afraid that they would be painted as trying to revive McCarthyism and/or Nixonianism (recall that FISA 1978 was enacted in the aftermath of Watergate).

So, not only has technology changed but the underlying threat to be addressed has, if not changed in all respects, has developed and proliferated in ways that no longer correspond to the "traditional" or "classical" Cold War threat environment.
8.20.2007 11:28am