Back in 2005 to 2006, the press reported on two major warrantless surveillance programs. The first became known as the Terrorist Surveillance Program, and involved real-time wiretapping of the contents of telephone and Internet communications that happened to be routed through the U.S. even though at least one of the participants (and most often, both) were actually located outside the U.S. The second program was sometimes referred to as the NSA Call Records program, and it involved the disclosure of non-content "metadata" about calls and e-mails from U.S. service providers to the NSA.

  Ever since the news leaked about the now-infamous Gonzales and Card visit to then-AG Ashcroft at the GW Hospital, it has been assumed that the episode and the threatened resignations that followed concerned the TSP, not the call records program. But now Newsweek is reporting that "the program" at issue in that case was actually the NSA Call Records program, not the TSP:

  Two knowledgeable sources tell NEWSWEEK that the clash erupted over a part of Bush's espionage program that had nothing to do with the wiretapping of individual suspects. Rather, Comey and others threatened to resign because of the vast and indiscriminate collection of communications data. These sources, who asked not to be named discussing intelligence matters, describe a system in which the National Security Agency, with cooperation from some of the country's largest telecommunications companies, was able to vacuum up the records of calls and e-mails of tens of millions of average Americans between September 2001 and March 2004. The program's classified code name was "Stellar Wind," though when officials needed to refer to it on the phone, they called it "SW." (The NSA says it has "no information or comment"; a Justice Department spokesman also declined to comment.)
  The NSA's powerful computers became vast storehouses of "metadata." They collected the telephone numbers of callers and recipients in the United States, and the time and duration of the calls. They also collected and stored the subject lines of e-mails, the times they were sent, and the addresses of both senders and recipients. By one estimate, the amount of data the NSA could suck up in close to real time was equivalent to one quarter of the entire Encyclopaedia Britannica per second. (The actual content of calls and e-mails was not being monitored as part of this aspect of the program, the sources say.) All this metadata was then sifted by the NSA, using complex algorithms to detect patterns and links that might indicate terrorist activity.
  . . . By 2003, Yoo had moved on, and a new head of the OLC, Jack Goldsmith, began reviewing his work. Goldsmith found Yoo's legal opinions justifying the program flawed. His reasons are based on a mind-numbingly complex area of federal law, but the basic analysis comes down to this: the systematic collection and digital transmission of huge amounts of telephone and e-mail data by the government constitutes "electronic surveillance" under the Foreign Intelligence Surveillance Act, the exclusive law governing domestic spying in national-security cases. For such activities, FISA requires a court-approved warrant. Therefore, the program was illegal.

   Back when we were assuming that the TSP was the real issue, my best guess was that Goldsmith had rejected the Article II theory for the TSP and instead was only willing to allow a narrower program under the rationale that the AUMF justified the program in narrower form. But if the Call Records program was the real issue, then it may be time to revise that a bit.

  In particular, it sounds like Yoo wrote a really sloppy memo that the NSA Call Records program did not constitute "electronic surveillance" under 50 U.S.C. 1801(f). 50 U.S.C.1801(f)(2) describes as "electronic surveillance" (for which a warrant is ordinarily required) as "the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States." If you were a really sloppy lawyer, and you wanted to say that the NSA Call Records program was legal, you could probably write a memo concluding that the program didn't implicate FISA's prohbition on warrantless wiretapping because it didn't intercept any "contents." As described in the Newsweek story, the evidence collection was limited to e-mail headers and non-content phone records. Therefore no "contents."

   But if you were a decent lawyer, you would realize that these arguments are pretty bad. First, subject lines of e-mails are pretty clearly contents rather non-content information. Second, and more importantly, the definition of "contents" in FISA is different than the more intuitive distinction used in the criminal context of the Wiretap Act. 50 U.S.C. 1801(n) provides:

"Contents", when used with respect to a communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication.

  Note that in the national security setting, "contents" includes "any information concerning the identities of the parties to such communication." Although there aren't any cases on this, that I know of, "any information" is pretty broad. Presumably that includes information such as e-mail addresses that would be non-content information in the criminal law setting.

  In light of this, it seems that the major dispute at the Ashcroft hospital visit was about whether the NSA Call Records program was collecting "contents" for purposes of FISA (and perhaps only in the background the issue of whether Article II trumped FISA). Comey and Goldsmith realized that the program was clearly "electronic surveillance," even though Yoo's memo argued that it was not and therefore was outside FISA. Comey and Goldmsith might have then insisted on changes in the program to make it a more plausible reading of the FISA statute: subject lines of e-mails would be out, for example, and perhaps actual e-mail addresses as well. The narrower program would then not trigger FISA's prohibition on "electronic surveillance," and might have instead operated under the Pen Register statute (either its exceptions or one universal pen-trap order). Only then could the Attorney General certify that the program was legal (actually not an obvious question, but that's an issue for another post). That's my speculation, at least.