The New FISA Law -- and the Misleading Media Coverage Of It:
I've been studying the new FISA legislation, as well as the press coverage of it, and so far I've found a major disconnect between the two. The MSM is presenting the new legislation as a major expansion of government surveillance powers. Here is how the Eric Lichtblau of the New York Times introduced the Senate's passage of the bill:
As I see it, the new law takes the basic approach of the Protect America Act of 2007 and adds privacy protections and bolsters the scope of judicial review. On the whole, the new law strikes me as pretty good legislation: It nicely responds to the widely expressed fears last year about how the Protect America Act could be implemented. and it ensures that the FISA Court will play a major role in reviewing surveillance of individuals located outside the U.S. Indeed, it seems to me that the new rules create pretty much the regime that critics of the Protect America Act wanted back in 2007.
So the question is, why is the press coverage painting such a different picture? I think there's a reason, but it doesn't have very much to do with the new surveillance rules. In this post, I want to summarize how the new surveillance rules compare to those under the Protect America Act of 2007, and then I want to consider why the press is reporting the new law as it is.
First, a bit of background. The legal rules for monitoring individuals outside the United States has become an important issue under FISA because many foreign Internet and telephone communications are now routed through the United States in the course of delivery. For example, a person in Pakistan who calls another person in Pakistan might have the call routed through New York. This creates an opportunity for monitoring of that communication from inside the network of the provider located in New York.
The legal question is, what kinds of rules should govern monitoring directed at targets overseas from inside the United States? The original FISA of 1978 wasn't supposed to regulate surveillance of individuals outside the United States, but then back in those days you didn't have foreign to foreign calls routed through the U.S. So what happens when technology changes?
The Protect America Act of 2007 required the Executive to submit plans for monitoring individuals overseas to the Foreign Intelligence Surveillance Court (FISC). The FISC would then determine whether the monitoring plans were “directed at a person reasonably believed to be located outside of the United States.” So long as it was not “clearly erroneous” that the proposals were “reasonably” so directed, the FISC had to approve the monitoring. The monitoring could occur for one year. See 50 U.S.C. §§ 1805B (2007). But the Protect America Act sunset after six months, requiring new legislation to be passed if Congress wished to authorize such surveillance in the future.
At the broadest level, the new Act continues the basic approach of the Protect America Act while adding more judicial review in significant ways. As in the Protect America Act, the government submits monitoring plan to the FISC as to whether the monitoring plans were "directed at a person reasonably believed to be located outside of the United States." The FISC then reviews the plan to see whether it does so or not. At the same time, it looks to me like the new law has considerably more judicial review than the Protect America Act.
The Senate gave final approval on Wednesday to a major expansion of the government’s surveillance powers, handing President Bush one more victory in a series of hard-fought clashes with Democrats over national security issues.But is that true? The new law is very complicated, and I've only been studying it for a few hours. It's quite possible that I'm missing something important. But based on my first reading, the media coverage of the new law strikes me as quite inaccurate.
The measure, approved by a vote of 69 to 28, is the biggest revamping of federal surveillance law in 30 years.
As I see it, the new law takes the basic approach of the Protect America Act of 2007 and adds privacy protections and bolsters the scope of judicial review. On the whole, the new law strikes me as pretty good legislation: It nicely responds to the widely expressed fears last year about how the Protect America Act could be implemented. and it ensures that the FISA Court will play a major role in reviewing surveillance of individuals located outside the U.S. Indeed, it seems to me that the new rules create pretty much the regime that critics of the Protect America Act wanted back in 2007.
So the question is, why is the press coverage painting such a different picture? I think there's a reason, but it doesn't have very much to do with the new surveillance rules. In this post, I want to summarize how the new surveillance rules compare to those under the Protect America Act of 2007, and then I want to consider why the press is reporting the new law as it is.
First, a bit of background. The legal rules for monitoring individuals outside the United States has become an important issue under FISA because many foreign Internet and telephone communications are now routed through the United States in the course of delivery. For example, a person in Pakistan who calls another person in Pakistan might have the call routed through New York. This creates an opportunity for monitoring of that communication from inside the network of the provider located in New York.
The legal question is, what kinds of rules should govern monitoring directed at targets overseas from inside the United States? The original FISA of 1978 wasn't supposed to regulate surveillance of individuals outside the United States, but then back in those days you didn't have foreign to foreign calls routed through the U.S. So what happens when technology changes?
The Protect America Act of 2007 required the Executive to submit plans for monitoring individuals overseas to the Foreign Intelligence Surveillance Court (FISC). The FISC would then determine whether the monitoring plans were “directed at a person reasonably believed to be located outside of the United States.” So long as it was not “clearly erroneous” that the proposals were “reasonably” so directed, the FISC had to approve the monitoring. The monitoring could occur for one year. See 50 U.S.C. §§ 1805B (2007). But the Protect America Act sunset after six months, requiring new legislation to be passed if Congress wished to authorize such surveillance in the future.
At the broadest level, the new Act continues the basic approach of the Protect America Act while adding more judicial review in significant ways. As in the Protect America Act, the government submits monitoring plan to the FISC as to whether the monitoring plans were "directed at a person reasonably believed to be located outside of the United States." The FISC then reviews the plan to see whether it does so or not. At the same time, it looks to me like the new law has considerably more judicial review than the Protect America Act.
Related Posts (on one page):
- Assessing Surveillance Laws in An Era of Sunset Provisions:
- Strange Op-Ed By Chris Hedges:
- The New FISA Law -- and the Misleading Media Coverage Of It:
Oh, snap!
I tend to think that your libertarian readers and colleagues will tend to think that the most accurate way to frame looking at the new law is by reference to FISA as commonly interpreted before President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States without the court-approved warrants hitherto required for domestic spying.
Well, as someone who used to be in the signals intelligence business, and who had to interpret FISA in their daily work, it was my understanding back in the 1980's that FISA forbad the monitoring of US Persons regardless of their location, with just some very narrow exceptions (basically, training and indentification. That is what let us copy US hams while in training at Fort Devens).
Basically, a US Person is a US Person regardless of where they are located.
Great post -- The Democrats and the drive by media have been lying for so long, they can't pull out. Most people can't see the irony, the Democrats who have been spreading the FISA lies with the help of their sycophants in the media, are the very same who made this FISA law update possible. Need I say Obambi is the best example of this.
Now if you would only expose the "standing scam" of all these meaningless environmental lawsuits and how that works to restrict America's energy supplies. I can't figure out when the Congress granted these gorups standing so they could sue and shut down America's energy supplies with the catch all lie - "protected lands".
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The symbolism that I get from this section is that Congress is saying that it intends sections 1809 (criminal penalties for foreign intelligence surveillance outside of FISA) and 1810 (civil cause of action) to be powerless cruft.
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While Congress probably has the power to extinguish claims based on statutory infractions, it will be interesting to see whether or not Congress manages to extinguish claims of a constitutional infraction. I don't think any plaintiff can win in court, but I think that call is for the Court to make, not Congress.
I see you've been reading the John Birch Society's "Guide to Rhetoric": "Don't say 'some people believe,' say 'everybody knows.'"
I think the reason for this is because a full understanding of how FISA is applied in practice requires a security clearance and CI access, wherein lies the conundrum: How do you effectively publicly debate a law that effects the production of secret and top secret intelligence without revealing classified information?
If those debating the various aspects of FISA don't have access to how it is applied in practice, how can we trust the public debate process (in the press, on the web, or in open congressional session) since it is applied with incomplete and possibly incorrect information?
These are questions with no easy answers.
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I don't think the framing is any more or less accurate, depending on the frame of reference. A complete view takes stock of all three species of FISA law, as well as the numerous changes made between 1978 and passage of the PAA.
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Based on Senator Bond's July 8 description of H.R.6304, I think you may be missing some of the more interesting parts of the new law.
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Hope and naivete.
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My observation has been that the quality of public debate is fairly uniform as to accuracy, completeness and conclusion, whether the subject is complicated, simple, transparent or opaque.
After 8 years of this kind of coverage you still sound surprised, and without a hint of irony!
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Heh. True that. It did the same sort of breathless reporting when it revealed the TSP. Some people thought the TSP activity was a major expansion of government surveillance powers, when in fact, the government had those powers (and more) all along.
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The government also has the power to conduct purely domestic warrantless surveillance, provided the surveillance is aimed at obtain foreign intelligence information. This power exists even though FISA sets up a pseudo-barrier.
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I understand that phrasing the story like that is technically flawed, because the immunity related to FISA-1978, and the "contraction in power" (although Congress is powerless to intrude on an inherent power) refers to the PAA, but the combination of topics (immunity and change in statutory limits) hang together better when both refer to FISA-1978.
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There's a certain symmetry to viewing an increase in the scope of statutorily permitted surveillance, and coincidentally, stopping legal action based on the previous, more restrictive parameters.
I'm puzzled why you would put scare quotes around "punish" and "get away with". It seems to me that there are two pretty important principles here: the rule of law; and equal justice under the law. The immunity provisions violate both. They sweep under the rug past violations of the law, and they do so on behalf of the rich and powerful. That's not behavior we want from Congress, it's the very worst of Beltway corruption.
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The jurisdiction of FISC is narrowly drawn to the granting of secret orders for surveillance, and there's no way for "the other party" to be involved. FISC is an ex parte operation.
I have little quarrel with FISA being an "ex parte" operation. My point is just that since there is only one side's interest getting represented, there is no legitimaacy in a system that allows for appeal. A system stacked in favor of one party by allowing that party to keep appealing till it gets the results it wants (with no provision for appeal representing the other side), makes the judicial check on inappropriate use of executive power virtually meaningless.
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The judicial check happens if/when the surveillance is entered into a trial, in a different court.
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I agree with you, the judicial check in FISC is based on "trust" on the part of the public. The process is almost totally secret. But at the stage of getting a warrant, the target doesn't get a voice anyway. That problem isn't limited to FISA warrants, it also pertains in Title III warrants.
So then how does FISA work with surveillance evidence. The whole "secrecy" angle is a little confusing to see how oversight would occur and possibly negate evidence in a case.
When you reverse engineer this back to SAIC and the advent of the Total Information Awareness program the maths presage a different denouement.
It is no coincidence that upon passage of this bill in the Senate, AT&T felt sufficiently emboldened to enter into this.
Despite many legal characterizations of CP as terrorism, lots of ppl would be surprised that the one of domestic intelligence purposes of the FISA black hole, is also put to targeting those naughty images.
For those who may want to know, file-sharing is next in the crosshairs for the Total Surveillance apparatus, despite whatever de minimis red herring apologetics might be applied by highbrow hacks.
Orin, this is a pretty good writeup. I'm with Dittybopper in that I'm confused by the description of who the law does and doesn't authorize surveillence of. There seems to be some co-mingling of citizenship and physical locatin in the description. I've always been under the impression that US Persons enjoy Fourth Amendment protection (in regards to American government agencies) anywhere in the world that they happen to be. I've also been under the impression that foreign persons do not necessarily enjoy the full protection of the Fourth Amendment, even when they are physically in the U.S.
My main concern with the new law is that I don't see any description of anything that allows an expedited process for time-critical situations. It appears to me that the described process can take days in situations where the time avaialble to act is only minutes. That's been one of the biggest criticisms of the existing law, as something that has really hamstrung intelligence collection.
The check and balance in the process is that the FISA court itself is a function of the judicial branch. So it acts as a check on the executive branch. Admittedly, since the whole process is conducted in secret, the possibility of collusion exists. But no one has come up with a better answer. And there is still Congressional oversight, such as it is.
How silly of me to comment on the merits of the issue raised by this post, rather than every other act which might (or might not) have raised a similar issue some time in the past.
Unless you're prepared to denounce the Holocaust to my satisfaction, I trust we'll see no more posts from you. I'll let you know.
If the communication crosses he border, can we listen to it with some suspission without a warrant? What if it is coming from a known "Bad Guy"?
What if one of the parties is a US Citizen?
What if the parties do not intend their communication to cross into or out of the US? i.e. NY --> NY routed through Canada or Pakistan --> Pakistan routed through the US?
If anyone has questions of comments, feel free to send them. I could always use the occasional distraction from the Bar.
Orin's post, where I think he says that granting immunity saves the courts from a costly battle against the telecom companies that they would lose anyway, is here. I can't speak to the validity of his argument, though.
Scott
The FISA Amendments Act permits the government to acquire the international communications of U.S. citizens and residents without requiring it to identify the people to be monitored; to specify the facilities, places, premises, or property to be surveilled; to comply with meaningful limitations on the retention and dissemination of acquired information; to obtain individualized warrants based on criminal or foreign intelligence probable cause; or even to make prior administrative determinations that the targets of government surveillance are foreign agents or connected in any way, however tenuously, to terrorism.
I'm not confused.
While I haven't had the chance to read this modification of FISA (I *DO* have a real life), unless something has drastically changed the US Government will still need a get a FISA warrant to knowingly monitor a "US Person" regardless of their location.
sed 's/need a get/need to get/g'
(1) Find a reasonable policy that violates a law you don't like (e.g. one that constrains the executive).
(2) Implement this policy in secret violation of the law
(3) Wait until it leaks (it will)
(4) Congress will eventually be forced to amend the law because, after all, your policy was reasonable. In doing so, however, they have now ratified your decision in (2), thus setting the precedent of plenary Executive power to ignore inconvenient laws.
That's what's infuriating to me about this whole thing -- Bush's utter contempt for the rule of law is being forgiven simply because ignoring the law happened to be a good idea. Even if you support the changes to FISA, I think it's evident that the Executive should not ignore the laws simply because he judges them to be poorly written.
But why? The PAA rules are not in force. Absent this law, the original FISA rules, as amended several times since 1978, would be in force. Hence, that's the appropriate comparison, and the general discussion of "expansions" is perfectly warranted.
(And if it was just international communications routed through the US that were at issue, this all would have been done a year ago. There was virtually zero disagreement about that. That was the red herring, not the issue..)
Based upon my understanding of FISA, having actually used it instead of theorizing about it, I can't see what was actually illegal about the program in question. In accordance with FISA, to knowingly monitor a US Person a warrant was still needed.
The big question was, what if you don't *KNOW* the US terminus is a US Person? You've got two choices: Run and get a FISA warrant for *EVERY* US-Foreign communication link where the US side is using an anonymous method (like a prepaid cellphone, or an anonymous e-mail account), or monitor it until you can tell whether you need a warrant (because the US terminus is a US Person) or not.
This enhancement, as near as I can tell, wouldn't apply to things like calls from your cellphone, home phone, or e-mail where it is obvious or easy to check that the likely user is a US Person.
Nor would it apply to purely domestic communications.
So really I can't see where it would be illegal. Monitoring a US Person requires a FISA warrant, same as before. Just some of the marginal interpretations are being changed to account for technologies that weren't dreamed of when FISA was originally written.
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FISA-1978 didn't distinguish on whether the US terminus was a US person vs a foreigner. The words in 1801(f) are "in the US," with 1801(f)(1) describing further the target being a US person.
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The warrantless regime of 1802 applied to a narrow set of targets (terrorist not among the listed warrantless targets), using a narrow set of communications means (communication means used exclusively by the foreign agents).
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At any rate, the conclusion is that a warrant would be required (to comply with FISA), US person or not, unless the conditions of 1802 are met. The snooper didn't have to "wait and see if it was a US Person" and only then get a warrant. If one end is in the US, and 1802 isn't met, FISA-1978 said "get a warrant."
Well, that was easy back in 1978, when cross-border phone cables were low bandwidth, everything was circuit switched, and foreign-to-foreign conversations seldom passed through the U.S. But those days are gone. We don't have any more Soviet spies with secret unlicensed transmitters sending out five-letter groups in Morse. What we have now are enemy agents using the same communications systems used by the rest of the public, on packet- and frame-switched networks where their traffic is intermingled with other traffic. A literal reading of 1802, as you've described it, would have the effect of a total ban, since the one narrow exception it allows is so easily bypassed by the enemy now.
Was FISA-1978 intended to implement a total ban? Obviously not. That being the case, why should it be interpreted that way now.
I frankly like the amendment (no surprise to those who have followed this here at volokh.com). The emphasis is now on targeting, but the reverse targeting that Marty Lederman was so worried about has been prohibited. The problem with the original FISA was that when interception moved from 1501(f)(1) to (f)(2), targeting became irrelevant, as well as whether the person was here legally. So, if al Qaeda operatives swam across the Rio Grande and then called back to OBL in his cave in Pakistan, interception would have been illegal, absent a warrant (ignoring Article II issues).
So, when discussing the new amendment, keep this in mind, that the NSA cannot legally target people in the U.S. legally a warrant. That includes U.S. citizens and legal aliens. There are also added protections for U.S. Persons outside the U.S. (my view is that under the original FISA, a warrant would not be required if the interception were outside the U.S.)
FISA is just a fiction that makes Congress feel like it is protecting civil liberties. FISA has never been a meaningful check on the executive. It won't be one now.
If a future president feels the need to eliminate the very minimal check and ignore FISA, he will. And get away with it. Congress does not want the responsibility, it just wants to fool the civil liberties crowd.
The information from the surveillance is never used in a future court proceeding. Hence, no judicial check.
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I wouldn't say "never," but certainly in a minute fraction of the times a warrant is issued.
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I'm glad I'm not the only person who sees the statute as a "fool the gullible" statute. Statutes can't limit Article II power. If Congress thinks the executive is out of control, they have a different widget with which to curb the conduct.
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See also Squillacote
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Very tangential nexus in US v Belfield, 692 F.2d 141 (DC Cir. 1982).
MarkField,
That's pretty naive. Orin is part of the Bush III (sorry, I meant McCain) "Justice Commitee," or something. He can't jeopardize that judgeship.
Those who feel that goverment officials will never make mistakes (much less actually lie or mislead), will not be concerned by this.
Those who feel that government officials are human, and so can err, lie, cheat, and otherwise behave like people, will feel differently.
It was not intended to do so, but yet it did so. Hence the need for an amendment sometime around 2001.
Because news services are for-profit enterprises and recognize that freaking people out is worth more than intelligent, insightful commentary supported by fact and logic.
Looking forward to the next article.
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The administration explained that it wanted to keep the public in the dark about the scope of surveillance, hence not folding it into the USA PATRIOT Act.
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In the same vein, the administration holds that public awareness of the TSP (publication of the NYT article in December 2005) is a national security threat.
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Conclude what you want to from that, but I conclude that the actual scope of secret surveillance exceeds what is recited in statutes and other public "comforting" pronouncements about being protective of privacy .
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Because public awareness of government surveillance activity creates a national security threat.
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Oh yeah. Embassy communication signals are ALWAYS mixed up with other traffic, even at the CO.
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Total ban, my ass.
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1802 is narrowly drawn, maybe too narrowly (it excludes terrorists, for example) - but it's not a total ban based on some magic new technology that causes all signals to immediately mix with public traffic. Not to say that embassy and foreign-spy traffic is NEVER mixed with other signals, but it isn't, as you imply, ALWAYS mixed.
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Do you think any of the activities conducted under ECHELON are a violation of US law? If so, which law? Meaning, which statute, or which provision of the US Constitution.
In re Sealed Case, 310 f.3d 717
*720 – Government must show that there is probable cause to believe that the target is an agent of a foreign power and must contain detailed information to support its contention that the target, who is a US Person, is adding, abetting, or conspiring in international terrorism
US v. Truong Dihn Hung, 629, f2d, 908 – targets must receive the protection of the warrant requirement if the government is primarily attempting to put together a criminal prosecution.
- Continues to discuss the difference between a "Criminal" warrant and an "Intelligence" warrant.
FISA is meant to take into account the differences between ordinary criminal investigations to gather evidence and foreign counterintelligence investigations to uncover and monitor clandestine activities.” Sarkissian, 841 F.2d at 965
I can not find the case in my notes but there is evidence that FISA searches have been conducted inappropriately. During discovery, the government turned over memos proving the plaintiff's case then asked for them back. The biggest problem with FISA and the courts is not that FISA works but that, due to national security, is unchallengeable. Here is the exchange.
Citizen: They have been spying on me.
Government: Prove it!
Citizen: Give me discovery.
Government: NO. All of that information is protected by national security.
Citizen: Then I can not prove anything.
Court: Case dismissed.
No review on the merits.
Any comments?
security, is unchallengeable. --
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I don't know what precipitated the revelations under the Church Committee, but a significant number of participants thought that entire set of disclosures should never have been made public. The hearing transcripts show the anxiety.
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I just read through the Sarkissian case (and thanks for the cites - I figured as long as I was looking, I may as well build a list of cases where FISA appeared into a criminal prosecution), and wondered what supported the request for a FISA warrant in the first place. No matter - if there isn't a need for a targeted warrant, then there isn't a need to have any particular suspicion in advance of the snoop.
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I wonder how the fruit of the "new" searches (generalized justification for snooping) will hold up in future cases.
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I also read somewhere that the primary use of FISA, for years (probably pre-9/11), was to disrupt the international drug trade. Those dudes are bad actors, even going so far as to blow up commercial aircraft to dispose of witnesses, informants, and/or enforcers. (Narco-terrorism: bombing of an Avianca commercial airliner in 1989) See News from DEA, Congressional Testimony, 05/20/03
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Not directly pertinent to analysis of statutes, but the expansion of the number of attorneys working for the government on FISA-related matters was interesting. Manpower grew from 20 in the year 2000, to almost 100 as of the time the article was published.
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I think you may be referring to al Haramain, tried in Oregon then shifted to the multi-district litigation under Judge Walker's care in the Northern District of California.
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There was an unintentional turnover of classified material in the Holy Land case, in Dallas, Texas. I don't recall FISA being part of that inadvertent turnover (6 boxes of material was provided, some of that was not meant to be produced to defense counsel), but it could have been.
This leads to this question for the legal experts: Does the FISA-applies-to-foreign-to-foreign-situations decision mean that, in the absence of immunity for the telecoms, anyone who engaged in a foreign-to-foreign communication passing through the United States between 1978 and August 2007 and believes that they were listened in on would have standing to sue?
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I doubt that's a "fact." It's an administration claim, with no backing in statute or common sense. US Courts are utterly powerless as to foreign-foreign communications. To the extent there was a court objection, it was to something other than "we forbid getting that foreign-foreign stuff."
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And that also fits the administration's description of TSP, which wasn't foreign-foreign, but was US-foreign, if acquired in the US. If a particular request for court order covered BOTH, US-foreign and foreign-foreign, and the court rejected that, it's literally true, but misleading as heck, to say "the court denied us access to foreign-foreign."
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-- anyone who engaged in a foreign-to-foreign communication passing through the United States between 1978 and August 2007 and believes that they were listened in on would have standing to sue? --
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Heh. NOBODY who engages in foreign-foreign communications has standing to sue in the US. There is no prohibition on the acquisition of foreign-foreign communications. Not in a statute, and not in the 4th amendment. They might have standing in a foreign court (using foreign privacy laws), but not in a US court.
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Oren -- Not if those communications are intercepted on US soil. Hence the fuss! --
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Show me the statute.
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1801(f) "electronic surveillance" does not encompass foreign-foreign communications, even when acquired in the US.
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The government wants to conduct TSP, warrantless surveillance of communications with one side in US, one side outside of US, one party a suspected terrorist.
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But the government says that the trouble is loss of foreign-foreign (this is a great political point - swallowed hook line and sinker by the masses). Dumbass Democrats forget about the "one side in US" part of TSP needing to be accommodated by statute, and offer "foreign-foreign" without a warrant (as though it ever needed one, and as though a US Court is competent or cares to grant one in any event).
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Well, Duh - if the TSP is to be codified, then the code (statute) needs to say its okay to acquire international communications (one side in the US) without a warrant. Given the government a codified foreign-foreign (which can't be granted) does NOTHING toward codifying US-foreign acquisitions. Whatever adjustments were to be made to the statute, had to say it was statutorily permitted to acquire conversations with one end in the US (and w/o a warrant)
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Oren -- Not if those communications are intercepted on US soil. Hence the fuss! --
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Obtaining Court enforcement of some imagined right to not have foreign-foreign communications intercepted is problematic.
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Show me the standing that a foreigner has, if his communications are intercepted in the US.
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Assume my US-Canada communications are intercepted in Nigeria. Can a US court enforce an order against whoever in Nigeria intercepts those calls? As a foreigner to Nigeria, what rights to I have to keep my communications secret from them?
The foreigners might not have the right in question, but certainly Congress can put whatever restrictions on the sort of interception that can happen on US soil. IOW, it's not the foreigner's stature that is implicated, it's Congress'.
No, but the Nigerian legislature can certainly place whatever restrictions they want as to what activities can be carried out within their borders (consistent with their constitution, blah blah blah).
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Show me the statute. You're the one saying it's against the law, so show me.
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Congress can't impinge on Article II powers, and it can't declare, provide, or cause foreign courts to enforce the rights of foreigners located outside of the country.
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-- the Nigerian legislature can certainly place whatever restrictions they want as to what activities can be carried out within their borders (consistent with their constitution, blah blah blah). --
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But they have no power to declare, enforce, or inhibit your privacy rights as you sit in the US. Whether they run a government-intrusive surveillance or not is none of your concern.
There's nothing that leads me to believe that interception of communications during a time of peace is even remotely implicated in Art II to the extent that Congress cannot put any limitations on it. Furthermore, I've made no mention of the rights of foreigners, only the clearly established right of Congress to regulate an interstate communications network.
It's none of my concern, but if they want to make it their business, they can. They can regulate their communications network however they please, really.
should read:
"clearly established right of Congress to regulate interception of data on an interstate communications network on US soil."
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"Time of peace" is irrelevant. Foreign intelligence is the province of the executive in time of peace, as much as in time of war. Congress has no role in limiting the executive in obtaining foreign intelligence information that is occurring between foreigners in foreign lands.
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While Congress is free to regulate an interstate communications network, that right and power does not extend in a way that can limit the executive's power to obtain the communications of foreign people in foreign lands, even if those communications pass through the US.
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I say "US Courts are utterly powerless as to foreign-foreign communications." and so far, this is what you've shown:
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-- if the interception is done in a packet-switched environment where the NSA must first grab all the data and then sweep for the relevant phone number, information about US citizens will have been intercepted, triggering the warrant requirement. It is these programmatic, automated systems that are legalized by FISA08. --
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Obtaining information on a US person (citizen or not, located in the US will do for now) is inevitable. That's what "minimization" is for.
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But it's all BS anyway, because the government wants to be able to acquire US-foreign communications w/o a warrant. The government throws out the canard of "a court says it's illegal to take foreign-foreign" and the lackeys start to spin tales to support the canard.
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The point of FISA08 is to codify the warrantless acquisition of US-foreign communication, not to codify the acquisition of foreign-foreign (which is outside of the FISC competency/jurisdiction)
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The perspective of "turning the situation around" and putting a hypothetical restriction on a foreign country's acquisition of foreign-foreign (to it) seems to have gone right over your head.
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Our Congress could pass a law too, "It shall be illegal for the Chinese government to intercept communications between Taiwan and North Korea." But aggrieved Chinese folks have no recourse to US courts for a violation of such a nonsense law.
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Our Congress couldn't pass a law that says "It shall be illegal for the president to intercept communications between China and Taiwan." That won't fly, for reasons that ought to be obvious, regardless of the route those communications take. No Americans were affected by the conduct of this activity.
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The government gets some US-foreign stuff while it's snooping? Erase the tape and burn the paper. Problem "minimized."
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I'm beating a dead horse - my point in this exchange is simply that "the law forbids foreign-foreign" is an incredible claim. I can't keep you from believing it, any more than I can keep you from believing in the Easter Bunny or UFO's.
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And erase my name, phone, IP, etc. from the "contact log." No traces of the contact/acquisition to be useful. If so, I really don't care what the government "overheard."
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Do you have any support for this sweeping assertion of unchecked executive power? There is no requirement in the Constitution that Americans be affected in order to Congress to have authority to take action nor is there any general exception to Congress' power with respect to foreigners. All told, you appear to have invented a Constitutional doctrine out of thin air.
Back in this reality, Congress has the power to regulate interception on any domestic interstate communication network however it sees fit, up to and including a total ban on any interception whatsoever.
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That's false. Have you read the law?
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That Congress doesn't have the power to make laws that apply to foreigners in foreign lands and under the jurisdiction of foreign courts? Some thin air. If the president wants to send a spy to the Croatian Embassy in Lithuania, or in the US, he can. I won't argue the wisdom of poking around in foreign lands, but the Constitution gives that action to the president, until it comes to purse strings and war.
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-- Back in this reality, Congress has the power to regulate interception on any domestic interstate communication network however it sees fit, up to and including a total ban on any interception whatsoever --
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Now that's just extreme. Congress can't regulate away "reasonable searches and seizures" and it can't regulate away the executive's power to conduct foreign intelligence inquiry.
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Closest I can come to is US v bin Laden, but that's a US citizen in Kenya, snooped and tossed w/o a warrant. No suppression of evidence.
I hate it when people make assertions without factual backings. I see my friends cursing "academics" at so called "Eleat" law schools who believe they don't have to because they are "Smart" and the students have to back them up. So here ya'll go:
Transcript of Record at Day 30, line 10-20, U.S. v. Usama bin Laden, 397 F.Supp.2d 465 (2005). (Available at http://cryptome. org/usa-v-ubl-30.htm).
Viet D. Dinh &Wendy J. Keefer, FISA AND THE PATRIOT ACT, A LOOK BACK AND A LOOK FORWARD, 35 Geo. LJ Ann Rev Crim Proc iii, June 2006.
Terrorist Surveillance Program is no longer in existence and was deemed to be unconstitutional as executed. American Civil Liberties Union v. National Security Agency, 493 F.3d 644 (6th Cir. 2007).
Except in emergency situations, FISA requires the Government to obtain an order from the FISA court before engaging in electronic surveillance to collect foreign intelligence information where a party is within the U.S. or is a U.S. person.
“United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence, an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power. See 50 U.S.C. §§ 1801(i) (2000); 50 U.S.C. §§ 1804(a) (2000); §§1805(f) (2000); §§1823(a) (2000); §§1824(e) (2000).
Helpfull Cases
U.S. v. Mubayyid, 521 F. Supp. 2d 125, 131 (D.Mass. 2007);
U.S. v. Ning Wen, 477 F.3d 896, 898 (2007).
Stacey v. Emery, 97 U.S. 642, 645 (1878).
In re Sealed Case, 310 F.3d 717 (FISCR 2002). <-- Only FISCR case - EVER (that we know of)
Mayfield v. U.S., 504 F.Supp.2d 1023, 1040-41 (D.Ore. 2007). (Thanks for the reference before. Here is the cite)
4th does not apply if everyone is outside the US Martinez-Aguero v. Gonzalez, 459 F.3d 618, 622-623 (5th Cir. 2006).
PS I am unemployed after the bar if anyone is hiring:)
The question is, how far are the courts going to go in saying that electronic communications passing through the United States are "activity" that occurs within the United States. Published media accounts say the court went very far down this road in the April 2007 ruling. No one that I know of with access to the ruling, including the members of Congress with the requisite access, has disputed this.
But for the sake of moving the argument forward, I'll rephrase my original question: If the FISA court ruled in April 2007 that their jurisdiction included foreign-to-foreign communications passing through US based equipment, does this mean that, in the absence of immunity for the telecoms, anyone who engaged in a foreign-to-foreign communication passing through the United States between 1978 and August 2007 and believes that they were listened in on, would have standing to sue?
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I think the premise is bogus, but even if it wasn't, the foreigners have no recourse in a US Court, even if they can PROVE their communications were intercepted by the US government. Such an interception does not violate FISA-1978, FISA-2007, or FISA-2008; and foreigners do not enjoy the protections of the 4th amendment, even if the interception has no basis in suspicion.
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FISC jurisdiction is limited to the granting of surveillance warrants. If it is asked to provide a warrant for foreign-foreign interception, and denies the request (FISA has no provision for issuing foreign-foreign warrants), the affected party is the US snooper. The US did not appeal the ruling in April 2007. Press reports are pretty much in accord with the sentiment, "they didn't appeal because they thought they would lose."
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As to your standing question for a party other than the US government, a foreign party would have to sue in a federal District Court on some basis. I don't see one.
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Make that "foreigners in foreign lands," to be in accord with the hypothetical.
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There's an historical precedent for a snooper going to FISC to get a warrant, and FISC saying "your request is outside of our statutory power." That was President Clinton's request for a warrant to enter Aldrich Ames' home for searching and other surveillance purposes.
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President Clinton's reaction wasn't to skip the search, it was to conduct it anyway as a legitimate exercise of Article II power to obtain foreign intelligence information. He plenty of reason to suspect Ames was a foreign agent, and that a search could yield foreign intelligence information.
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In the instant TSP case, I don't believe the FISC rejection of April 2007 was based on "a request (or Court demand) for a foreign-foreign warrant." There is no provision in FISA to grant a foreign-foreign warrant. I believe the April 2007 rejection was based on 1802(f)(2), minimization, or some other aspect of FISA that touches on the acquisition of communications of a US person who has a reasonable expectation of privacy against the US government; and it was THIS case that the government was not confident it would win on appeal.
First, the Feinstein reinforcement. You wrote:
The autonomy suggested by a "de novo" review seems in sync with a "reasonability" standard of review cited by Feinstein:
Next, Feingold. He suggests FISC's authority to enforce the ban against reverse targeting is toothless:
Feingold also pooh-poohs the Court's ability to enforce minimization:
Now, minimization is defined quite precisely in the 1978 FISA bill, and the new law returns to that standard. Among other things, minimization mandates "procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance" (that last clause does sound like a big loophole). According to Feinstein, this procedure is generally followed: "In practice, this actually means that the National Security Agency only includes information about a U.S. person that is strictly necessary to convey the intelligence. Most of the time, the person’s name is not included in the report. That is the minimization process."
To me, the question is: does the FISC's 'de novo' authority to review minimization (and targeting) procedures provide a real basis for enforcing the law's nominal targeting and minimization requirements? Would the description of targeting and minimization procedures provided in a warrant request have enough specificity to make genuine assessment possible?
Also, how is compliance with the outlined procedures monitored? If I understand the law right, it's monitored through the reports of the inspectors general for each of the intelligence agencies as well by annual reports from the head of each agency and by the attorney general; their reports will be reviewed by FISC and by the intelligence and judiciary committees in Congress. Now, that's self-monitoring -- the executive branch reporting on its own performance. On the plus side, it's a lot of self-monitoring, with detailed requirements for what's to be reported. The fact that multiple agencies are turning in regular reports increases the likelihood that at least one will flag meaningful abuses. And it's hard to see how else the FISC and Congress could monitor compliance, other than through data supplied by the agencies doing the work.
In the below comments, I am talking about the warrantless acquisition of international calls to which a person in the US is a party. FISA-1978 required a warrant for this, neither PAA nor FISA-2008 requires a warrant for this.
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PAA and FISA-2008 are equivalent in their requirements for those warrantless acquisitions: "the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information." FISA-2008 recites or clarifies what the government said was implied by PAA - no reverse targeting, no intentional acquisition of domestic-domestic communications.
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PAA had a court apply "clearly erroneous" to a narrow inquiry, that the procedures to establish surveillance would result in acquisition of communications of a person reasonably believed to be located outside of the United States. I think this is an easy element to show to a much higher standard, and that claiming some "tightening" by moving from "clearly erroneous" to "clear and convincing" is misleading. The change in standard of review wouldn't make any substantive difference. Using a track metaphor, shifting the 100 yard dash qualifying point from 2 minutes to 30 seconds doesn't change the fact that all the contestants will qualify for the big race.
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All three versions of the law, FISA-1978, PAA, and FISA-2008, refer to and require the DOJ/DNI to apply exactly the same minimization - 1801(h). But FISA-2008 also permits minimization to 301(4), which I haven't scoped out yet.
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Under the PAA, the "minimization" protocol was opaque to FISC unless a communications provider challenged a snoop directive. I'm trying to figure out whether or not FISA-2008 has a way to skirt the "assess whether such procedures meet the definition of minimization procedures" court review, but I think there is no avoiding submitting to that.
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Under FISA-1978, the court review of minimization is also "meet the definition of minimization procedures [per 1801(h)]."
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I agree with you that minimization, as defined, is a big loophole. It doesn't prevent snooping, it prevents disclosure or dissemination. It's some sort of barrier to retention, but under that barrier, the government is permitted to retain "nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information."
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The specificity and particularity of DOJ snoop descriptions / order requests (not an order is required, but the snooper is required to describe how the surveillance directive to the telecom won't intentionally acquire (keep) domestic-domestic traffic, even if an order is not sought) changes radically going from FISA-1978 to FISA-2007, and does not change substantively when going from FISA-2007 to FISA-2008. The 2007 and 2008 versions boil down to "make sure you only obtain international calls, and apply 1801(h) minimization [Again, I'm very curious about the 301(4) minimization procedure - I have no comment on that at this time, except it's new to FISA-2008]
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The "specific" [702(g)] certification made by the DOJ/DNI under FISA-2008 is reviewed by FISC for "whether the certification contains all the required elements," which is less intrusive that challenging the contents or substance of those elements.
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The secret accountability reporting to FISC and Congress (I presume to a gang-of-8-like audience) is triggered by "dissemination of intelligence reports containing a reference to a United States-person identity," and "United States-person identities subsequently disseminated by the element concerned in response to requests for identities that were not referred to by name or title in the original reporting." I have no idea what those triggers constitute (meaning I can't rephrase or paraphrase the meaning), or whether or not the triggers are easily avoided in practice. In any event, the report is numerical, like the current reports of number of warrant applications, refusals, and modifications.
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Turns out this isn't something "new" to FISA-2008.
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301(4) = 50 USC 1821(4) - “Minimization procedures” with respect to physical search
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It has operative parameters very similar to minimization pertinent to electronic surveillance.
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Jumping back to electronic surveillance and minimization under 101(h), the third component is authorization to disseminate, on a finding of evidence of criminal activity
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The fourth and last component is to either get a warrant or dispose of information on a US person within 72 hours; but this requirement pertains ONLY if the snoop was conducted pursuant to 1802.
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Cryptome hosts a US government document that describes this, somewhat. "Dissemination" is transmitting of acquired details (NSA is one potential source of raw data) between government agencies. NSA "acquisition" of a communication [with details] "doesn't count" as dissemination until and unless the data is transmitted to another agency.
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See http://cryptome.org/nsa-ussid18.pdf. Legal Compliance and Minimization Procedures. It's dated, coming from 1993, but describes with particularity the sort of communications contents that justify dissemination of United States-person identity from NSA to a requesting agency, as well as the level of authority needed to approve the requested dissemination. E.g., "All proposed disseminations of information constituting U.S. PERSON privileged communications (e.g., attorney/client, doctor/patient) and all information concerning criminal activities or criminal or judicial proceedings in the UNITED STATES must be reviewed by the Office of General Counsel prior to dissemination."