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Debating the New FISA Legislation:
I mentioned it once before, but I thought I would flag once again the interesting discussion about the new FISA legislation with David Kris, Patrick Keefe, Marty Lederman, and myself over at Slate.
MacGuffin:
Orin,

Whenever someone questions what the government can do under the PAA, why do you fixate on what the government is doing? How does playing "guess the surveillance program" bring us any closer to answering the question of what is now possible under the law; or do you really think that current NSA programs limn all possible futures?

I read your "good luck with the legislative history of the Protect America Act" to express some exasperation with the lack of reviewable process in the creation of the PAA. May I presume the implication that you are in favor of more open and extensive debate and commentary when Rep. John Conyers begins HJC hearings next Thursday?

If a legislative debate and history with regard to FISA/PAA is a good thing, why is the foreclosure of future debate and commentary through the PAA's restriction of congressional oversight and judicial review also a good thing? It would seem that the differences in policy preferences that you recognize would tend to argue in favor of oversight and review instead of a blind entrusting of electronic surveillance policy decisions to one branch or agency of government; or are only some of those policy preferences worthy of hearing, let alone pursuit?
8.30.2007 2:50pm
MacGuffin:
Orin,

You and your Slate participants might also want to bring this into your discussion.
8.30.2007 2:58pm
Just an Observer:
Thanks to MacGuffin for the link to the CRS report on the Protect America Act. Reading this report, it is apparent that the CRS legal scholars, like the four participants in the Slate discussion and all the rest of us, are still speculating about what the PAA language actually means.

One question that no one involved seems to address, but which seems to me to be obvious, is whether the new sections 105A and 105B added to FISA are linked at all. There is a corollary question about whether invoking 105B is required or optional.

I think 105A, crafted as a "clarification" to existing FISA definitions, clearly stands alone, and does not depend on the "additional procedure" described in 105B. Further, it seems to me that 105B need not be invoked at all or for all circumstances, but can be invoked in situations where the DNI and AG choose to do so. (It obviously would be in their interest to do so if they need to employ the compulsory process of an administrative "directive" authorized in 105B, but not if communications providers cooperate voluntarily.)

The CRS analysis explored the ambiguities between the wording of 105A and 105B -- the former is keyed to the meaning of "directed at" while the latter depends on the meaning of "concerning." But CRS did not explore the linkage, more closely.

This linkage -- or lack thereof -- is crucial, because if any surveillance is deemed to be not "electronic surveillance" under 105A, without the process of 105B even being applied, then it is conducted under the president's inherent authority. Such surveillance thus would be entirely unregulated by statute.

So I do wish the foregoing experts would address those questions of construction, based on the text of the law in front of them.
8.30.2007 4:07pm
cboldt (mail):
I think 105A and 105B are linked. If I understand the "105A can stand on its own" argument, it stands on it's own to facilitate black-bag jobs by the government, and surveillance undertaken with no written authorization or administrative order (i.e., "voluntary compliance" with no CYA paperwork, no immunity, and no remuneration under the law). 105B plays for warrantless surveillance directed at a person reasonably believed to be outside the US, when the surveillance involves a written order from the FBI/DOJ/NSA.
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I found the CRS description of 1801(f)(4) confusing, in that I see no way for a device installed in the US, could obtain the communications of a person NOT in the US, other than by radio or wire means.
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I also found the CRS writing confusing in that it seems to make "acquisition" and "surveillance order" into equivalent/synonymous terms. They are not. 105C validates surveillance orders, and a surveillance order will no doubt justify multiple acquisitions.
8.30.2007 5:28pm
MacGuffin:
I found the CRS description of 1801(f)(4) confusing, in that I see no way for a device installed in the US, could obtain the communications of a person NOT in the US, other than by radio or wire means.


Would you classify a microphone bug that listened in on a speakerphone conversation as wire surveillance?
8.30.2007 5:34pm
Kelvin McCabe:
After reading the various posts and arguments, I agree 100% with Orin that its all pretty much a guessing game, most details being classified and what not, and that nobody (including the congress which passed it) knows for sure how, who and what is being gobbled up in all this. I think this actually strengenths M. Lederman's main points. I also think the PAA gave the government carte blanche to seize, store and listen (now or later) to every international communication. Whether this means anything practically to some random innocent guy calling his grandparents in Spain, i dont know, nor do i really care. Its not the effect that scares me, its the precedent that is being set. Just like the constant (yet subtle) erosion of the 4th amendment which was spurned by the War on Drugs, this is yet another slow bleed area. And to be sure, there are cases being prosecuted NOW wherein the war on drugs and the war on terror have been married, even when the drug proceeds are not going to jihadists hiding in caves somwhere in Asia but are rather purely domestic operations.

As Marty pointed out, once the NSA intercepts a communication, it can share it secretly with other branches of government. Thus, while Joe Blow the dual-citizen Canadien/U.S. person may not be affiliated with Al-quaida, may not be a terrorist or even remotely religious, he might have a call inolving some B.C. pot get intercepted, then a DEA investigation, then a whole bunch of people ENTIRELY REMOVED from the original purpsoe of the statute get busted, etc...all based on this secret spook stuff that is allegedly only directed at terrorists. This is the liberty problem and nobody but a handful of people care or know.

I suggest that instead of seeking out former government lawyers and anonymous white house officials (you trust them to be honest about this?) you seek out a NACDL discussion board and ask if anybody therein knows of instances where everyday (criminals mind you) people were somehow intertwined with some homeland security anti-terrorist type investigation. Ask this question, seek this information out, and see if the protect america act (and the TSP before it) is really targeting only terrorists. I have my doubts from anecedotal stories in the criminal defense realm.

Orin talks about perfect filters and compromise, I ask him to think about why not multiple filters? Some for terrorists, some for drugs, some for whatever is the crime fascination at the moment. Once you get access to the data stream, and it can be shared among gov.t agencies, why limit it to only one area of what the government views as a societal threat? What thats u say, the director of the NSA says that would be a fourth amendment violation? Not with the elaborate shell game (that M. Lederman and a few others with a healthy dose of skepticism sees right through) this piece of legislation creates.
8.30.2007 5:34pm
cboldt (mail):
-- Would you classify a microphone bug that listened in on a speakerphone conversation as wire surveillance? --
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No. Good example, or at least one I hadn't thought of. I did think "bug," but didn't figure how a US located bug could be reasonably directed at a person outside the US.
8.30.2007 6:02pm
Just an Observer:
cboldt: I think 105A and 105B are linked.

I'm actually less interested in what you think than why.

Please cite the statutory language that links the two sections and expressly requires the reasonable belief in 105A to be based on the procedure described in 105B.

I can find no such language, just a flat declaration of what cannot be "construed" to be "electronic surveillance."
8.30.2007 6:31pm
Apodaca:
JaO:
I can find no such language, just a flat declaration of what cannot be "construed" to be "electronic surveillance."
I think we can fairly expect the White House to interpret such a provision narrowly and to apply it in a reasoned and prudent manner.

Just not any time soon.
8.30.2007 6:37pm
Just an Observer:
Apodaca,

Although I fully expect the incumbent to stretch interpretation of the law expansively, my analysis does not depend on a bad-faith interpretatation. I am assuming that any administration would at least follow the letter of the law, and the plain text of the law clearly allows 105A to stand alone. I would expect a Clinton 44 administration to interpret it that way, as well.

We cannot read the minds of secret administrators, but we can read the statute.
8.30.2007 6:46pm
Anderson (mail) (www):
Anyone know why John Bolton hasn't been prosecuted for the incident described in the Slate discussion? Besides the obvious, cynical reason why, I mean?
8.30.2007 6:59pm
Just an Observer:
Anderson,

I can't see that Bolton broke any law.

It is possible that an NSA official interpreted the exception liberally, and gave the names to Bolton, but apparently that was SOP. (There were 10,000 names provided over an 18 month-period, about one-third of which went to policymakers; Bolton accounted for 10 that we know of.) The exception in the regs seems broad enough to swallow the rule without much of a stretch:

Step 1: Name is redacted in NSA report.

Step 2: Authorized customer of report says he needs the name to fully understand the report, which is an exception to the rule against dissemination.

Step 3: NSA official authorized to decide such a request agrees and provides the name.

BTW, it was not clear to me from the Newsweek report whether the 10,000 names were from FISA-covered surveillance, unregulated surveillance conducted under the president's inherent authority, or both. The prohibition on dissemination is similar, except one is statute-based and the other is regulation-based.

Either way, the story is not Bolton. The story is that the rule against dissemination of U.S persons' names, a key element of "minimization," is not very tight in practice.
8.30.2007 7:26pm
cboldt (mail):
-- Please cite the statutory language that links the two sections and expressly requires the reasonable belief in 105A to be based on the procedure described in 105B. --
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The statutory language that hooks the two together is "persons reasonably believed to be outside the United States."
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The definition in 105A stands even if 105B didn't exist, so the linkage test that you stated isn't met. IOW, one need not refer to the procedure in 105B in order to obtain a reasonable belief that surveillance is directed at "a person" outside of the US.
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The procedure of 105B benefits from the effect of 105A preceding it, in that the "not electronic surveillance" clarification of 105A removes what would otherwise be a substantial ambiguity.
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My point is that the practical application of 105A resides in 105B, not in black bag jobs and other completely off-the-books voluntary cooperation.
8.30.2007 7:35pm
Anderson (mail) (www):
JAO, if Bolton's request was made w/ fraudulent intent, would he not fall outside the exception?
8.30.2007 7:46pm
cboldt (mail):
There is additional language in 105B that links it to 105A, that being part (2) of the certification (determination) made in support of authorization of the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States.

(2) the acquisition does not constitute electronic surveillance


Without the clarification of 105A, this requirement circles back to 1801(f), and 105B wouldn't be nearly as useful.
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With regard to the difference between 105A's "directed at a person" and 105B's repeated "concerning persons," my first impression is that the definitional aspect of 105A is meant to be taken that "even if the surveillance targets a particular foreign person, it isn't electronic surveillance." The idea being that random looking at foreign communications is even LESS apt to constitute electronic surveillance.
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So, with the definition of "electronic surveillance" in hand, one can consider the nature of the surveillance regime. In this case, the authorization doesn't want to be crafted as toward "a person." There would be too many authorizing orders.
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105A is definitional language, 105B is the nuts and bolts of authorization orders to the telecoms and determinations in support of the authorization orders, for the DOJ files with a sealed copy at the FISC -- just in case.
8.30.2007 8:46pm
cboldt (mail):
-- Such surveillance thus would be entirely unregulated by statute. --
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This category of surveillance exists, by definition, independently of statutes. For example, see TSP between late 2001 and August 2007 (activity undertaken while privacy was ostensibly protected by FISA and Title III). And of course, foreign intelligence surveillance pre FISA in 1978 (i.e., outside of Title III), as well as phone tapping pre passage of the Communications Act of 1934 (outside of any statute).
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-- So I do wish the foregoing experts would address those questions of construction, based on the text of the law in front of them. --
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As acknowledged above, "black bag jobs" by the government and "off the books" activity by telecoms are still possibilities (always have been). There remains an area entirely unregulated by statute, even with the broadened "not electronic surveillance" category created by the PAA.
8.30.2007 9:04pm
Bart (mail):
Kelvin McCabe:

As Marty pointed out, once the NSA intercepts a communication, it can share it secretly with other branches of government. Thus, while Joe Blow the dual-citizen Canadien/U.S. person may not be affiliated with Al-quaida, may not be a terrorist or even remotely religious, he might have a call inolving some B.C. pot get intercepted, then a DEA investigation, then a whole bunch of people ENTIRELY REMOVED from the original purpsoe of the statute get busted, etc...all based on this secret spook stuff that is allegedly only directed at terrorists. This is the liberty problem and nobody but a handful of people care or know.

NSA has far more important things to do than look for drug smugglers for DEA. However, if NSA uncovers a drug smuggler dealing while gathering intelligence on any number of targeted terrorist groups like Taliban and Hamas who finance their operations through drug production, I would hope that this identification would be forwarded to DEA.

The drug smuggler's rights have been addressed by the courts a quarter century ago in the Truong line of cases. When warrantless intelligence is provided to law enforcement, the courts assume a criminal investigation has started at that point and the full panoply of 4th Amendment and other constitutional rights then come into play.

I cannot think of a single good reason to grant the drug smuggler any further privacy rights which are not already granted by the Constitution
8.30.2007 9:18pm
Bart (mail):
MacGuffin:

Orin, Whenever someone questions what the government can do under the PAA, why do you fixate on what the government is doing? How does playing "guess the surveillance program" bring us any closer to answering the question of what is now possible under the law; or do you really think that current NSA programs limn all possible futures?

Until there is a problem, there is nothing to fix.

Only our imaginations limit the number of different ways government power might be abused. This Congress has yet to address any of the myriad of actual problems facing the nation. Why would it take the time to legislate against flights of imagination?

To the extent that Article I even grants Congress to direct foreign intelligence gathering, Congress would be wise to keep legislative limits on such activities to a minimum. The 1979 version of FISA ended up hamstringing current intelligence gathering because it could not foresee how intelligence gathering technology would change over the years. As a result, both the President and Congress had to ignore FISA in order to defend this nation after 9/11. A better course would be for Congress to rely far more upon its oversight powers rather than static statutes.
8.30.2007 9:31pm
MacGuffin:
Until there is a problem, there is nothing to fix.

Only our imaginations limit the number of different ways government power might be abused.

Who said anything about problems or abuse? I asked about what falls within the new law. Are you suggesting that what the PAA allows constitutes a problem or some form of abuse?
8.30.2007 9:40pm
Bart (mail):
MacGuffin:

Unless there is an actual set of facts against which to apply the new law, I would suggest that all of this speculation is simply a spinning of the intellectual wheels.
8.30.2007 9:51pm
MacGuffin:
Really? Trying to figure out what the law says is useless until we are presented with facts that demand its application?
8.30.2007 10:02pm
Just an Observer:
cboldt: The definition in 105A stands even if 105B didn't exist, so the linkage test that you stated isn't met. IOW, one need not refer to the procedure in 105B in order to obtain a reasonable belief that surveillance is directed at "a person" outside of the US.

There. Now that is a factual statement of what the statute actually says. Just as I said above.

But then you proceed to make an unsupported assumption:

My point is that the practical application of 105A resides in 105B, not in black bag jobs and other completely off-the-books voluntary cooperation.

But as you correctly noted above, nothing whatsoever in the statute requires that 105B to be invoked for any given surveillance in order for 105A to have its effect! Invoking 105B is optional, done at the discretion of the DNI and AG. And nothing whatsoever precludes voluntary cooperation.

You are simply assuming, entirely on your own, that no voluntary cooperation will occur in fact. But we know better from experience. Voluntary cooperation did occur for the duration of the TSP. And before FISA even existed, surveillance of international communications occurred with no statutorily authorized or court-ordered compulsion at all. During WWII, the executive branch is reported to have inspected copies of every international cable, provided upon request to the telegraph companies.

Nothing in the statute precludes such cooperation today, and to the extent it occurs, it is not in the government's interests to invoke 105B because that section has more strings attached.
8.30.2007 10:43pm
wolfefan (mail):
Hi -

an unrelated note for Anderson - the link to your blog is apparently not working. It leads to a "blogger not found" page.

I enjoy "Thus Spake Anderson"...
8.30.2007 10:59pm
cboldt (mail):
-- You are simply assuming, entirely on your own, that no voluntary cooperation will occur in fact. --
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I'm not making that assumption. You assigned it to me, but I don't have it, and never made it.
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-- But we know better from experience. Voluntary cooperation did occur for the duration of the TSP. --
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And 105A wasn't in effect. Therefore, voluntary cooperation doesn't depend on the presence of 105A.
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So what does 105A enable?
8.30.2007 11:11pm
Just an Observer:
Anderson: JAO, if Bolton's request was made w/ fraudulent intent, would he not fall outside the exception?

I dunno. If you are suggesting that his behavior comprised the elements of a federal crime of fraud because he misrepresented something in his requests to NSA, then I leave it to you to make the case for fraud under whatever statute you have in mind.

But I can't see that the recipient of information lawfully obtained in the first place by NSA under a FISA court order is culpable under FISA's own criminal sanction, 50 USC 1809. That provision criminalizes the use of information "obtained through electronic surveillance not authorized by statute." (That is, without a FISA court order. This provision is what, IMHO, criminalized the activities of the "TSP." But we have no evidence that the information Bolton got was obtained under the TSP.)

If anyone colored outside the lines here, it would seem to be the NSA official(s) who excercised their judgment under the exception. But even if they did -- which, given the apparent size of the generic loophole, I can't say they did -- the worst thing that happened is that the minimization procedure was violated. FISA does not criminalize such a violation, AFAIK.

And if the surveillance was accomplished lawfully under the president's inherent authority rather than FISA, I don't know of a statute that regulates dissemination at all. It would be an administrative matter.
8.30.2007 11:29pm
Just an Observer:
cboldt: So what does 105A enable?

105A redefines the FISA definition of "electronic surveillance," which allows certain surveillance to escape its terms and thus be accomplished under the inherent authority. Prior to that redefinition, that same surveillance would fall under FISA's definition and thus could not be lawfully conducted without a court order, because FISA regulates that portion of such inherent authority.
8.30.2007 11:38pm
Anderson (mail):
an unrelated note for Anderson - the link to your blog is apparently not working. It leads to a "blogger not found" page.

Sorry, I can't seem to shake the link from my comment cookies here &elsewhere. The blog vanished in the cold light of Too Little Free Time.

I enjoy "Thus Spake Anderson"...

Ah, there were three-point-eight readers, then. Thanks!

---JaO, I seem to recall there's a statute about making false representations to the U.S., but given the Planck-length chance of Bolton's being indicted, I will abandon this wistful line of thought.
8.30.2007 11:50pm
cboldt (mail):
Your position isn't coherent to me yet ... let me lay out the parts that aren't connecting.

50 USC 1809 ... is what, IMHO, criminalized the activities of the "TSP." ...
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And if the surveillance was accomplished lawfully under the president's inherent authority rather than FISA


On one hand, you say that TSP was a criminal activity, on the other hand you say there was a possibility for lawful surveillance under the president's inherent authority. What are the attributes of surveillance, pre-PAA, that fit in a gap between what is made illegal by 50 USC 1809, and the president's inherent authority to conduct foreign intelligence surveillance? By attributes, I mean the same criteria used in FISA such as location of parties, location of acquisition, etc. I take as a given that the surveillance is to obtain foreign intelligence information.

105A redefines the FISA definition of "electronic surveillance," which allows certain surveillance to escape its terms and thus be accomplished under the inherent authority. Prior to that redefinition, that same surveillance would fall under FISA's definition and thus could not be lawfully conducted without a court order, because FISA regulates that portion of such inherent authority.


Can you replace the pronouns "certain surveillance," "that same surveillance," etc. with something more definite without going purely circular by reciting the contents of 105A? I know what it says. This is the same question I asked you previously, what sort of action do you see happening under 105A that wasn't happening before? What's that advantage to the snooper under 105A (sans 105B) that the snooper would not have without 105A?
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You've been asserting that 105A, without reference to 105B, enables some hitherto unknown new species of off-statute "voluntary surveillance" ... and I'm just not seeing it. Unless it just more of the same, i.e., "black bag jobs and off-books whatever" (like purely domestic surveillance for foreign intelligence information, just to make a specific example), which appears to be forbidden under statute.
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What I see 105A doing is shifting acquisitions of international communications from US-based switches out of FISA's (and Title III's) definition of "electronic surveillance," and 105B (taking advantage of that) providing a statutory means for administrative ordered "on the books" surveillance. PAA's 105B is a statutory enabling of the TSP (one party in US, one party out of US, no warrant), including the power of court compulsion and the carrots of statutory immunity and on-the-books remuneration.
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I'll reiterate that there is ALWAYS the possibility of activity outside of the statute ... but I don't see 105A as enabling some new species of "legal off-statute activity." I see 105A as enabling a new species of on-statute activity, namely, that spelled out in 105B. And given the carrots and compulsion (and low entry barrier to DOJ), I see virtually all of the "new 105A action" to be undertaken under the 105B process.
8.31.2007 12:14am
cboldt (mail):
Just a reminder that the government's response to ACLU's motion to FISC is due tomorrow. Docket No.: MISC. 07-01
8.31.2007 12:33am
Just an Observer:
cboldt:

A simple hypothetical, under different legal regimes:

Bad Guy in Egypt, suspected of being associated with a terrorist organization called al Qaeda, talks to John Smith in New York. The NSA intercepts the call, directing its surveillance at Bad Guy in Egypt, at a telecom facility in New Jersey, assisted voluntarily by Big Telco Inc.

1) If this happened in January 1968, the surveillance could occur lawfully under the president's inherent authority without a warrant or court order. Title III had not yet even been enacted.

2) If this happened in January 1970, the surveillance still could be accomplished lawfully under the president's inherent authority. No warrant or court order was required. Title III was then in force and generally prohibited warrantless surveillance in interstate or foreign commerce, but it expressly deferred to that inherent authority for such foreign intelligence surveillance and carved it out from the general prohibition.

3) If this happened in January 1980, this surveillance could no longer be conducted without a court order, because when Congress enacted FISA in 1978, its "exclusive means" provision amended Title III and bound the executive not to conduct such surveillance without satisfying the FISA court first that there was probable cause. For the first time, instead of deferring completely to the president's inherent authority, Congress chose to regulate a subset of foreign intelligence surveillance -- that subset defined primarily by FISA's formal definition of "electronic surveillance."

4) If this happened in January 2002, when the "Terrorist Surveillance Program" was secretly in effect, and this surveillance was effected as part of the TSP without a court order, that was unlawful.

5) If this happened in February 2007, after the warrantless TSP had ceased to exist because the government started to operate under a new and novel FISA court order instead, and if the particular surveillance was covered by that court order, it was lawful again.

6) If this happened in June 2007, after the FISA court order had expired and the FISA court decided against renewing it, it would again be unlawful to conduct this surveillance without a court order.

7) If this occurred today, after passage of the PAA, and the DNI and AG formed a reasonable belief by means of their own choosing under section 105A, but elected not to invoke 105B because the voluntary cooperation of Big Telco made 105B's compulsory process unnecessary, this surveillance would again be lawful under the president's inherent authority because it could no longer be construed as "electronic surveillance" under FISA.

Note that in all cases the facts do not change. Big Telco cooperates voluntarily. The statutes do not "enable" that cooperation; Big Telco simply chooses to cooperate. What changes is the state of the law, and the decisions of the government at different times to follow the law or violate it.
8.31.2007 1:21am
Bruce Hayden (mail) (www):
JAO,

Except that you didn't consider the change in technology. Thus, after FISA was passed (#3 above), it was still likely legal to intercept the calls because the interception was done either through the ether (in the case of either satellite or microwave communications) or offshore (in the case of an undersea cable). But by 9/11/2001, this was no longer the case. Most overseas communications were now via fiber optics, and could only realistically be intercepted at the U.S. based switches. Thus, the interception moved from 1801(f)(1) to 1801(f)(2). The difference is that under 1801(f)(1) the fact that the target was Bad Guy in Egypt was sufficient to take the interception out of "Electronic Surveillance". Not so under 1801(f)(2), where targetting and being in the U.S. legally were irrelevant.
8.31.2007 1:48am
Just an Observer:
Bruce Hayden: Except that you didn't consider the change in technology. Thus, after FISA was passed (#3 above), it was still likely legal to intercept the calls because the interception was done either through the ether (in the case of either satellite or microwave communications) or offshore (in the case of an undersea cable).

Yes, I almost wrote a 3a) to cover satellite transmission and interception. (Even though I think you over-generalize. There were some transoceanic cables then, too; it was a matter of degree. For all we know, before FISA was enacted, the NSA did lawfully tap at U.S. telecom facilities.)

But such an amended case would require changing the facts in the hypothetical, and cboldt seems confused enough without that complexity. So I deliberately held the hypothetical facts constant as a tutorial tool.
8.31.2007 2:03am
cboldt (mail):
-- cboldt seems confused enough without that complexity --

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Dazed, confused and bewildered. That's me. I see I still haven't asked the right question, because I still don't see what sort of lawful action you see happening under 105A that is outside of 105B, or the new advantage to the snooper under 105A, sans 105B.

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Is your point merely that the effect of 105B (acquisition of foreign intelligence information concerning persons reasonably believed to be located outside the United States, without the consent of any party to the communication, when such acquisition occurs in the United States) can be obtained without the paperwork associated with the 105B process?

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Or do you see 105A as enabling (making lawful) something more, e.g., surveillance other than "Bad Guy in Egypt, suspected of being associated with a terrorist organization called al Qaeda, talks to John Smith in New York. The NSA intercepts the call, directing its surveillance at Bad Guy in Egypt, at a telecom facility in New Jersey, assisted voluntarily by Big Telco Inc."? And if something more, what is it?

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I think 105A, crafted as a "clarification" to existing FISA definitions, clearly stands alone, and does not depend on the "additional procedure" described in 105B. ... if any surveillance is deemed to be not "electronic surveillance" under 105A, without the process of 105B even being applied, then it is conducted under the president's inherent authority. Such surveillance thus would be entirely unregulated by statute.


Before 105A &105B came into being, there was a category of surveillance outside of FISA's 1801(f). Anything outside of that was "not electronic surveillance," and could be conducted, entirely unregulated by statute. There is a legal argument over which of that foreign intelligence surveillance (if any) could be lawfully undertaken under the president's inherent authority. But that's not the point I've been driving at in our extended exchange.

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What sort of "such surveillance," "entirely unregulated by statute," is swept in by 105A, but not 105B, besides the constant "Bad Guy in Egypt, suspected of being associated with a terrorist organization called al Qaeda, talks to John Smith in New York. The NSA intercepts the call, directing its surveillance at Bad Guy in Egypt, at a telecom facility in New Jersey, assisted voluntarily by Big Telco Inc."?

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Here is how you described the "105A but not 105B activity" last week:

As for the contours of such a "process" -- which would be not only outside of 105B but also outside of FISA and Title III entirely -- that would be exclusively up to the internal decisions of the executive branch. It would fall under the president's inherent power to conduct foreign intelligence surveillance, in the overriding carve-out from Title III. Such surveillance would be treated under the statutes just as local surveillance we might conduct in Moscow or Islamabad: There is no statutory regulation or prescribed "process" at all.


Now, you know exactly what you mean by the "such surveillance" pronoun you used in that -- but I still don't know what you mean. Describing the TSP over and over again against the statutory evolution doesn't distinguish this "something that 105A enables outside of 105B" that you're hinting at, but not describing with any sort of particularity.

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I'm not trying to be a pest, I'm trying to see what you're seeing, and so far, I don't see the effect of the "new lawful power" that 105A creates, independently of 105B. Unless it's just that the same international communications can be acquired from US-based switches, either with the administrative paperwork imposed by 105B, or without it.
8.31.2007 10:04am
cboldt (mail):
Not sure this will help, but I see 105A+105B as a sea change; and I do see how 105A's carve-out plays into 18 USC 2511 as well. I.e., it neuters the argument that FISA represents the exclusive authority (or limits the president's inherent authority) for conducting foreign intelligence surveillance.
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JoA seems to see an even greater change by taking 105A alone. The gap I'm trying to discern is the one between 105A+105B, and JoA's "105A without 105B."
8.31.2007 10:17am
cboldt (mail):
JoA ... that's me doing a Yoda impression ... "Just observer, an"
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Sorry about that. Should not have typed JoA. It should have been either JaO, or spelled out as "Just an Observer."
8.31.2007 11:10am
Just an Observer:
cboldt: I see I still haven't asked the right question, because I still don't see what sort of lawful action you see happening under 105A that is outside of 105B, or the new advantage to the snooper under 105A, sans 105B.

Is your point merely that the effect of 105B (acquisition of foreign intelligence information concerning persons reasonably believed to be located outside the United States, without the consent of any party to the communication, when such acquisition occurs in the United States) can be obtained without the paperwork associated with the 105B process?


Essentially, yes. But it is far more significant than just a difference of a little "paperwork."

If there is voluntary cooperation by a provider, so a finding of reasonable belief under 105A lawfully allows the surveillance to proceed under inherent authority, the surveillance is unregulated by statute:

1) The executive branch does not even have to draft 105B's procedure for this class of communications, submit it for deferential review by the court, draft "directives" and serve them on information providers, and be prepared to defend those directives against challenge by the providers. The statute's "paperwork" process is quite favorable to the government; but it is not nothing at all, which is what the the 105A-only-inherent-authority path requires.

2) The "minimization" requirements of the 105B process, while less rigorous than those of FISA court orders (which must have detailed procedures supervised by the court) still are more demanding than those for surveillance conducted under inherent authority. In the latter case, there is no statutory requirement at all, only the internal regulations drafted by the executive. And those regulations are less restrictive than the general definitions that apply to 105B, let alone the detailed rules typically imposed under FISA court order.

This is not a small matter. McConnell told the El Paso Times that differences over "minimization" were a deal-killer in congressional negotiations over the recent legislation. Minimization rules affect the collection, processing, retention and dissemination of information. So, for example, if the government wants to perform data mining, the fewer rules the better, from its point of view.

3) Under 105B, as under the rest of FISA, there is at least a definition of "foreign intelligence surveillance," which limits the subject matter of allowable eavesdropping to something necessary to defend against attack or spying by terrorists or foreign governments, or necessary for national defense or the conduct of foreign affairs. Further, the minimization requirements, to one degree or another, enforce this limitation. But under the inherent-authority surveillance, no such definition applies in the statutes. The only self-imposed limitations in executive-branch regs define the allowable scope to include most anything about any foreign individual, organization or government.

Altogether, it is very much in the government's interest to maximize its flexibility in the above matters. Even the limited statutory regulation under 105B is significantly more than no regulation at all.

105B is best viewed not as a new procedural way to effect something like the "TSP" -- that was done with no compulsory process at all, however unlawfully, and the redefinition embodied within 105A would make most of it lawful now -- but as a whole new tool for effecting warrantless snooping where the TSP never reached.

What 105B does is grant the government a new affirmative authority, without warrants, to reach out and touch information providers and custodians who historically have not been so amenable to voluntary cooperation.

Unlike the handful of big telecoms controlling the few international switches -- who have a history of voluntary cooperation -- other sectors of our information infrastructure are much more fragmented. For example, the ISP industry and the Internet hosting industry have myriad players, large and small. Email hosts include many types of entities, including not just ISPs and Yahoo, but also employers, colleges, and mom-and-pops, and it is not likely that all of them would be as cooperative as big telecoms have been. Under the broad language of 105B, anyone's networked computer that does any international communication at all might be the object of a compulsory "directive."
8.31.2007 11:18am