Short Plainspeak Primer on New FISA

“Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad.”

James Madison to Thomas Jefferson, May 13, 1798 

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A surveillance law, called the Protect America Act, which is an amendment to Foreign Intelligence Surveillance Act, pushed through Congress and signed by Bush last Sunday, will allow the government to monitor phone calls and e-mails without a warrant. If you engage in any international communication, this will impact you. Here is what you need to know, and how to act.

Univ. of Chicago Law Professor.

What does the amendment authorize? Until last weekend, FISA prohibited the government from intercepting any international telephone call or email communication involving persons in the United States without a warrant from the FISA court based upon probable cause. The amendment authorizes the government to wiretap or intercept any international communication, even if one of the participants is an American citizen on American soil, as long as the intercept is undertaken for foreign intelligence purposes and is “directed at a person reasonably believed to be located outside of the United States.”

There is no requirement that the government must obtain a search warrant from the FISA court, and no requirement that the government must have probable cause to believe that the person “reasonably believed to be outside of the United States” is a terrorist or even an associate of terrorists. The new legislation empowers the Attorney to authorize such surveillance as long as the purpose is to gather “foreign intelligence” and the surveillance is “directed at a person reasonably believed to be outside the United States.”

Why should we care about this law? In general, United States law (statutory and constitutional) does not restrict the ability of the government to search the homes of people in Iraq, to read the mail of people in France, or to wiretap telephone calls in Japan. Why is the new law any different?

When the government intercepts telephone calls and email exchanges between an American in Chicago and a foreign national in Berlin it intrudes upon the privacy of both parties to the communication. Such surveillance invades the privacy of the American in Chicago just as much when the exchange is with someone in Berlin as when it is with someone in Miami. That the surveillance is “directed at a person reasonably believed to be outside the United States” is no consolation to the American in Chicago.

Until last weekend, the law did not define the privacy interest of the American in Chicago in terms of whether he was speaking or emailing with a person in Miami or Berlin. In either case, because the surveillance invaded the privacy of an American on American soil, the government needed probable cause and a warrant.

The simple and proper solution to this “problem” to require the government to obtain a warrant based upon a showing of probable cause whenever it wants to tap a telephone call or read an email exchange involving an American on American soil. That was the law before last weekend and there is no good reason why it should not be the law now.

Aziz Huq, Brennan Center for Justice (also discusses what happens to Americans who are overseas).

The law’s most important effect is arguably not its expansion of raw surveillance power but the sloughing away of judicial or Congressional oversight. In the words of former CIA officer Philip Giraldi, the law provides “unlimited access to currently protected personal information that is already accessible through an oversight procedure.” [snip]

The key term in the Protect America Act is its licensing of “surveillance directed at a person reasonably believed to be located outside of the United States.” This language has a superficial reasonableness, since domestic surveillance has long been understood to raise the most troubling abuse concerns.

But the trouble with this language is that it permits freewheeling surveillance of Americans’ international calls and e-mails. The problem lies in the words “directed at.” Under this language, the NSA could decide to “direct” its surveillance at Peshawar, Pakistan–and seize all US calls going to and from there. It could focus on Amman, or Cairo, or London, or Paris, or Toronto… Simply put, the law is an open-ended invitation to collect Americans’ international calls and e-mails.

Further, the law does not limit the collection of international calls to security purposes: Rather, it seems the government can seize any international call or e-mail for any reason–even if it’s unrelated to security. Indeed, another provision of the law confirms that national security can be merely one of several purposes of an intelligence collection program. This point alone should sink the Administration’s claim to be doing no more than technical fiddling. While the FISA law limited warrantless surveillance absolutely, this law licenses it, not only for national security purposes but also for whatever purpose the government sees fit.

Of further concern is the “reasonably believe” caveat. This means that so long as the NSA “reasonably” believes its antennas are trained overseas, wholly domestic calls can sometimes be collected. And since the NSA uses a filter to separate international calls from wholly domestic calls, it need only “reasonably believe” that it’s getting this right. It’s this new latitude for error that is troubling, especially because this isn’t an Administration known for its care when the rights and lives of others are at stake. It remains deeply unclear how much domestic surveillance this allows.

The problems created by this loosening of standards are compounded by the risibly weak oversight procedures contained in the law. Rather than issuing individualized warrants, now the Director of National Intelligence and the Attorney General can certify yearlong programs for collecting international calls. The program as a whole is placed before the FISA court, which can only invalidate those procedures and claims that are “clearly erroneous.” The government thus has to meet an extraordinarily low standard, in a one-sided judicial procedure in which the court has no access to details of the program’s actual operation.

Congressional oversight is even more laughable. Attorney General Gonzales, that paragon of probity and full disclosure, is required to report not on the program’s overall operations but solely on “incidents of noncompliance.” Of course, given how weak the constraints imposed by the law are, self-reported noncompliance is likely to be minimal.

Finally, some advocates and legislators have taken comfort in the law’s six-month sunset provision. But this means that the act will be up for authorization in the middle of the presidential campaign, an environment in which the pressures to accede to Administration demands will be even higher than usual. And the law doesn’t really sunset after six months: The provision is artfully drafted to allow the NSA to continue wielding its new surveillance powers for up to a year afterward.

Center for National Security Studies.

The Center for National Security Studies strongly opposes the administration’s FISA bill, S. 1927, because it would permit the National Security Agency to acquire and analyze all international communications of Americans, without any meaningful judicial oversight. The administration legislation would allow the NSA warrantless access to virtually all international communications of Americans with anyone outside the US, so long as the government declared that the surveillance was directed at people, which includes foreigners and citizens, reasonably believed to be located outside the US, a definition that covers billions of people.

The administration rejected all reasonable efforts to require that such surveillance be focused on foreigners, be directed at terrorist targets or be limited to protecting against international terrorism. They also rejected efforts to include meaningful court review of the rights of individual Americans’ swept in or even an independent audit of the affect on the privacy of Americans.

This legislation would sunset or expire in six months. However, the sunset has an exception that would allow any directives by Attorney General Gonzales and Director of National Intelligence McConnell that commandeer access to US telephone and internet companies to remain in effect until their expiration (which is likely to be until the end of the administration since the directives can be issued for up to one year, so could be issued to last for the next six months and then reissued on the eve of the sunset, in January 2008, to remain in effect until this administration is finally over in January 2009).

ACLU

The legislation that passed would allow for the intelligence agencies to intercept – without a court order – the calls and emails of Americans who are communicating with people abroad, and puts authority for doing so in the hands of the attorney general. No protections exist for Americans whose calls or emails are vacuumed up, leaving it to the executive branch to collect, sort, and use this information as it sees fit.

Expansion of executive powers.

Bush has said his original surveillance program was restricted to calls and e-mails involving a suspected terrorist, but the new law has no such limit. Instead, it allows executive-branch agencies to conduct oversight-free surveillance of all international calls and e-mails, including those with Americans on the line, with the sole requirement that the intelligence-gathering is “directed at a person reasonably believed to be located outside the United States.” There is no requirement that either caller be a suspected terrorist, spy, or criminal.

Think Progress [with video].

The government can monitor every single phone call that London is making to you in Washington, D.C., to any of the viewers at home. … They can listen to every single international call that you make or receive, every e-mail that you write, and e-mail that you receive, in complete and total secrecy.

C&L.

Why the new FISA is worse than you think.

Text of the bill is here (Pdf).

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4 Comments

  1. Posted August 12, 2007 at 8:53 am | Permalink

    I wonder if the current dems running for president voted for this ugly law. Truly crappy. Seriously, do we have a real “choice” when we elect people?

  2. Posted August 12, 2007 at 9:05 am | Permalink

    Hillary, Obama, Dodd voted against it.

  3. Mark Thrice
    Posted August 12, 2007 at 6:17 pm | Permalink

    Thanks. Good to know.

  4. Posted August 13, 2007 at 1:34 pm | Permalink

    Excellent post. Thank you.

3 Trackbacks

  1. By Primer on Wiretapping Expansion « Ali Eteraz on August 11, 2007 at 11:37 am

    […] on Wiretapping Expansion Filed under: America — eteraz @ 1:37 pm Brought via Plural Politics A surveillance law, which is an amendment to Foreign Intelligence Surveillance Act, called the […]

  2. […] Government to tap our calls and e-mails August 12, 2007 Filed under: Uncategorized — tradicionalista @ 12:30 am This is a post from Ali Eteraz. […]

  3. […] discussed a few days ago, the US Congress passed the Protect America Act (primer here). It allows the administration to tap international communications — without a warrant and […]

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