Balkinization: Helpful FISA Posts

Helpful FISA Posts

Marty Lederman

I'll try to keep a rough list here of links to posts and comments that provide helpful clarification or analysis of the new bill and its ramifications, or that really move the ball forward. I'll try to update at the bottom as more things come to my attention. (For basic background, here's the bill, S.1927; my preliminary analysis of the bill; my query about the background Fourth Amendment question; and some early remarks by Orin Kerr on that constitutional issue. Also, in our comments section, Jack and I have a little back-and-forth about the possible constructions of section 105B of the bill.)

Start, of course, with Jack's absolutely essential post putting this in a broader perspective.

Then check out this post by Publius at Obsidian Wings (it's a great site even when hilzoy is on vacation): "The White House bill includes some minimal hoops the government must first jump through, but to call them toothless is an insult to those without teeth. As those with children know, bare-gum chomps can still hurt the finger."

Publius's focus is on the lack of transparency -- the fact that we haven't had a public debate about whether the government should be able to freely listen in on all our foreign communications. Perhaps that's something that doesn't bother Americans much in this age -- who knows?:

It’s pretty clear that the administration wants the authority to conduct electronic surveillance basically anywhere and anytime for anti-terrorism purposes. Perhaps I’m naïve, but I think they’re motivated by good intentions. R egardless though, if you want this type of power, come out and say it. Let’s have a debate on that specific question.

Maybe privacy is quaint in the age of digitally-enabled terror. Maybe we need to rely on the political process (i.e., elections) for protection. I disagree with both views, but we should at least have that debate. Say what you will about John Yoo, he at least doesn’t pull punches. He wants a vast expansion of executive power and doesn’t try to dress it up in different clothes.

But "different clothes" is exactly what we got with the FISA debate. We got the White House spokesman pretending to affirm strong privacy and civil rights protections. We got a bunch of meaningless oversight procedures that do nothing but give the appearance of oversight. That’s not how democracy is supposed to work. More to the point, democracy can’t work when the terms of important debates are cloaked in dishonesty and Kabuki.

To similar effect, in our comments section (yes, it can be useful if we all simply ignore the provocateurs!), "occasional observer" observes this:

In the House debate just one Congressman alluded to the bill's failure to require the DNI to keep a running record of how many US persons were spied on and report to Congress. Even he failed to link this gap to the need for legislative oversight and re-evaluation down the road (without a repeat of what just went on). The useless Gang of Eight, the endless stonewalling, the reliance on newspapers to tell us what our government is doing -- none of these were spoken to.

I was stunned. The oversight function and the means and scope of intelligence gathering are easy to separate, hard to demagogue. A line in the sand could have been drawn, in negotiations and then on the floor. At worst they'd have come away with a strong talking point, an ability to say they fought the good fight, and a caret in the law for future reference.

I can only conclude that when push came to shove the Democrats didn't feel all that entitled to know what goes on. That's for the party that keeps us safe, the one that's tough enough to make life-and-death calls. The "24" guys.

Orin Kerr has now weighed in at some length. His general take is this: "On the merits, I think this legislation on the whole seems relatively well done. I would have tinkered with it in some ways, and there are parts I'm not sure about, but the basic structure seems pretty good. Given that this is a 6-month temporary fix, not a permanent change, I tend to support it. . . . I think I basically agree with the idea that if someone is outside the United States, FISA should not regulate the monitoring of their communications. [I assume Orin here means that it's ok regardless of the extent to which, or frequency with which, such surveillance also intercepts communications of U.S. persons.] Intelligence agencies have long been able to monitor such calls from listening posts outside the U.S. without triggering FISA (think Echelon); this legislation makes the same rule apply regardless of where the communication is routed." (To similar effect, see the very interesting comment in this thread by John Thacker. John and Orin both emphasize that certain international communications have long been beyond constitutional and statutory regulation, even where they involve interception of U.S. persons' communications. Now that the government has the ability to intercept a vastly greater percentage of such communications, should the deregulatory legal landscape change, or adjust?) Orin also notes that "I have a number of concerns about the legislation from a civil liberties perspective. For example, limiting judicial review to whether it is clearly erroneous that something is reasonably designed to target those reasonably believed to be outside the U.S. seems like a pretty weak threshold. I'm guessing that the FISA Court judges will be pretty tough on this despite the statutory language, but the statutory language itself is obviously very deferential." He also focuses on, and laments, the fact that the legislation requires ISPs and service providers to give the NSA access when requested.

In comments to Orin's post, Just an Observer gets right to the heart of what seems to me to be the critical question:

On the one hand, I have long been sympathetic to the general principle that it is a good idea to restore the rough balance that was struck in FISA in 1978, a balance that has been disturbed by technological shifts. And on one level, that is what this bill does. This legislation and the associated debate are making explicit what apparently true in 1978, but was deliberately obfuscated: That by
"directing" our surveillance at parties abroad, our government legally is allowed to listen in on most all their communications with citizens here at home, without warrants or serious regulation.

On the other hand, I am not at all sure most people even realized that is what was going on all along 25-30 years ago, and the dissonance is jarring. The same technological shifts that make it necessary to gather almost all communications at telecom switches, ISPs, etc., also make it possible. This makes a big qualitative change in the tradeoff between liberty and security. It is more feasible for the government to slurp in everything and process it, rather than just targeting certain lines. So while the 1978 legislation did not require a foreign party legally to be identified as a "target," technology effectively did require isolating them.

If the government decades ago wanted to target all my international calls, it used to be that it would be forced to do so explicitly and get a warrant. It lacked the capacity to surveille all international communications and then filter out mine. Today, that capacity is being approached.

Matt Yglesias: "[T]he Democratic presidential candidates all seem opposed to this, but I'd put the odds of any of them actually taking action to reduce their own powers once in office at approximately zero percent." But fear not -- Matt also predicts that, "at some point years from now," there'll be a rollback when "some story will break about a truly abusive use of these surveillance authorities." Kinda like what happened to bring us . . . FISA.

Posted 10:04 AM by Marty Lederman [link]

Comments:

Would anyone care to argue whether or not Section 105C requires the FISA Court to issue an advisory opinion in violation of Art. III requirements? The language requiring the court to "assess" the legality of government conduct brought to mind Muskrat v. US.

# posted by

dm : 9:45 AM

Thanks for all the posts and analysis.
.
Section 105C is interesting in principle, in that it sets up a completely secret court review process, all the way to SCOTUS.
.
As for the sunset, there is an iterplay btween "the order" (which doesn't sunset) and "the law" that authorizes the order. If the order has an indefinite expiration date, then sunsetting the law that authorizes the order is pretty much a meaninless action.

# posted by

cboldt : 10:45 AM

To similar effect, in our comments section (yes, it can be useful if we all simply ignore the provocateurs!), "occasional observer" observes this:

In the House debate just one Congressman alluded to the bill's failure to require the DNI to keep a running record of how many US persons were spied on and report to Congress.

Most likely, both parties dropped this provision as completely unworkable.

If you recall, the TSP involves passive computer monitoring of telecommunications to and from telephone numbers captured from al Qaeda which go through our telecommunications hubs. Active monitoring of the telecommunications is triggered when the passive computer surveillance picks up jihadist language including that discussing likely high value targets. (Hollywood actually did a fair duplication of how this technology works in the new film the Bourne Ultimatum.)

The vast majority of so called "spying" involves the passive computer surveillance where the humans at NSA are neither recording nor listening in on the telecommunication. The NSA would actually have to listen in on all these communications to determine if the computer was monitoring a US person. Not only is this physically impossible for lack of personnel, but the loss of privacy would be infinitely more intrusive than simply allowing the computer to passively go about its work.

Folks, if we can dial down the uninformed and unreasoning hysteria for awhile and apply the actual disclosed facts to the actual law, I believe you will find that many of your imagined fears are unfounded.

# posted by

Bart DePalma : 11:07 AM

Bart,

Would you care to provide us with the sources that inform your imagining of the TSP that we are supposed to "recall" above, or are you just providing us with unfounded assurances?

# posted by

Unknown : 12:07 PM

To say that "the TSP is" something is to prove that one knows absolutely nothing, since those who know aren't telling.

There is no such thing as "active" surveillance, as that is an oxymoron. There is automated surveillance and surveillance by humans, but the result is precisely the same -- a loss of privacy.

Since the communication being "tapped" will be recorded in either case, and that recording will be available by anyone with a proper clearance, such as Karl Rove (just as an example of someone known to have a clearance to view data classified as secret), the distinctions made here are pointless.

Disclaimer: I've used sloppy, non-technical language to describe technical matters. Use with caution.

# posted by

C2H50H : 12:15 PM

Mark, Bart gave his source: The Bourne Ultimatum. Not all knowledge can be obtained from 24.

# posted by

KCinDC : 12:35 PM

Once again, please use the comments section to advance the discussion. Please do not respond to Bart and others like him, period. Thanks.

# posted by

Marty Lederman : 1:08 PM

Publius's focus is on the lack of transparency -- the fact that we haven't had a public debate about whether the government should be able to freely listen in on all our foreign communications.

True enough, but under FISA the government already could "listen in" on our all foreign communications that did not pass through a US switch, if you mean electronic collection. However, the various "minimization procedures" mentioned in the FISA statute have to be followed. All of those are a result of previous acknowledgments that the identity of people whose signals were intercepted can sometimes not be identified until later. You are correct that the extent and scope allowed is a change, but some of the later commentators should realize that certain of their particular objections are against things that already existed and are not part of this bill. E.g.:

Since the communication being "tapped" will be recorded in either case, and that recording will be available by anyone with a proper clearance, such as Karl Rove (just as an example of someone known to have a clearance to view data classified as secret), the distinctions made here are pointless.

I suggest reading the FISA statute in any case. The distinctions are not pointless, unless you think that the FISA statute was already pointless. You should read up on the "minimization procedures" in that paragraph and the next. Those electronically recorded signals have to be deleted by 72 hours currently if there is no warrant or probable cause. Most US person signals are detected and deleted electronically without any operator involvement. Recording the number of such signals would also be injurious to privacy, perhaps moreso than just deleting them as is done now. (OTOH, it might be useful for the "substantial likelihood" test of section 1802 (a)(1)(B).)

People raise good points about privacy concerns, but many of those are already present in FISA without this amendment, including the collection of US person signals when abroad, and the electronic surveillance without court order authorized in section 1802 (a) that has existed since before the current President was in office. (Yes, the intelligence community reorg in 2004 did affect that paragraph, but only by substituting Director of National Intelligence for Director of Central Intelligence.)

So while all those are reasonable privacy concerns, some people should realize that many of those concerns already existed.

The bill does have significant effects, of course. The significant effect is that it considerably eases the requirements for intercepting foreign signals obtained from surveillance directed at foreign persons when it cannot be guaranteed that they will not be talking to a US person on the other end, and it appears to lift the restriction on installing US-based devices to collect wholly foreign signals. (Currently, the FISA statute defines "electronic surveillance" to include anything based in US territory; however, in the modern age signals whose endpoints are both not in the US do often pass through US territory.)

It's true that we certainly haven't had a tremendous debate over whether signals crossing the border should be searched. However, I do seem to think that many people find it acceptable to routinely search goods and physical objects crossing the border. Indeed, I believe that many Democrats have run on the platform of saying that more physical objects should be searched when crossing, even all of them. Of course, even under this law one doesn't capture all signals for the same reason that we don't search all containers; technically impossible and incredibly expensive with a poor cost-benefit.

# posted by

John Thacker : 1:29 PM

However, I do seem to think that many people find it acceptable to routinely search goods and physical objects crossing the border. Indeed, I believe that many Democrats have run on the platform of saying that more physical objects should be searched when crossing, even all of them. Of course, even under this law one doesn't capture all signals for the same reason that we don't search all containers; technically impossible and incredibly expensive with a poor cost-benefit.

I've never quite understood this comparison. A physical object might be dangerous in and of itself (i.e., it might be a bomb). Whatever the value of telephone calls or emails might be from an intelligence standpoint, they are not dangerous in and of themselves.

In addition, inspection of physical objects doesn't generally infringe on First Amendment concerns, whereas surveillance of emails and phone calls does do so. That makes the potential for abuse much greater.

Given these two important distinctions, there would be nothing inconsistent in adopting different standards.

# posted by

Mark Field : 2:23 PM

John Thacker,

I find that reading legal material unbearably boring, and so I appreciate those who read it and comment in terms I can stay awake reading.

The question that concerns me is not the operation of the NSA or FBI if all the laws or regulations are obeyed in spirit as well as in letter, but the opportunities for mischief that are implicit in the operation.

The new act seems to me to open new avenues for mischief by legalizing the placing of taps on any node through which information might pass involving some non-citizen and providing insufficient oversight of this operation.

Given the viral nature of electronic copying, I don't believe that the deletion requirement will ever be met consistently, and I see no way for citizens to believe that it will be.

Quite frankly, I see this as a large increment in institutionalizing the electronic surveillance of citizens.

# posted by

C2H50H : 3:26 PM

Marty Lederman said...

Once again, please use the comments section to advance the discussion. Please do not respond to Bart and others like him, period. Thanks.

Professor Lederman:

If I am not mistaken, the subject of your post was the FISA reform statute. My comment was a direct response to a quote you posted. Thus, exactly what about my post do you contend does not "advance the discussion?"

If you disagree with my analysis, you can at least grant me the basic courtesy of a reasoned response rather than claiming that I am changing the subject.

Unless, of course, by advancing the discussion, you mean making only those points which advance the politically correct view of this subject. In that case, you are seeking a Greek chorus and not to advance any discussion at all. I would be severely disappointed if this were the case.

# posted by

Bart DePalma : 4:31 PM

I'm thoroughly confused about the purpose of
"SEC. 105C. (a) No later than 120 days after the effective date of this Act, the Attorney General shall submit to the Court established under section 103(a), the procedures by which the Government determines that acquisitions conducted pursuant to section 105B do not constitute electronic surveillance."...

Is this simply to give the government 4 months to prepare arguments that certain existing programs are not surveillance?

e.g. a hypothetical program that does accurate multilingual speech to text on all domestic telephone conversations, but doesn't actually involve people reading the transcripts (and then possibly listening to recordings to verify the correctness of the transcript) unless a warrant is obtained.

# posted by

Bill Arnold : 9:03 PM

Marty, do you agree that the section 105B(h) provision for legal challenges by carriers is essentially meaningless?

Specifically, I don't see how the carriers would have standing to assert jus tertii if they thought an overseas US person's Fourth Amendment rights were being violated. At most, they might be able to object that Target X is in fact inside the US and thus not properly the subject of a section 105B directive.

# posted by

Unknown : 2:55 AM

Marty asked: Publius's focus is on the lack of transparency -- the fact that we haven't had a public debate about whether the government should be able to freely listen in on all our foreign communications. Perhaps that's something that doesn't bother Americans much in this age -- who knows?:

That's an interesting question in this age of MySpace, Girls Gone Wild and reality TV. Given the zeitgest, IMO a national surveillance state would be acceptable to most Americans as long as they could recover against the govt in tort for violations of the 4th A.

# posted by

Adam : 10:34 AM

Unless I'm confused, isn't the fundamental problem with this bill the fact that it allows the executive to conduct surveillance without regard to the purpose of that surveillance?

Speaking for myself only, I don't have a huge problem with NSA's wiretapping an American citizen -- provided that some neutral magistrate gets to OK that his electronic communications are being surveilled because there is probable cause to believe that the subject of surveillance is involved in terrorism.

If there is no neutral oversight that surveillance by the NSA is actually related to national security, that is a very big problem. And that, it seems to me, is what the real problem with this bill is.

Or am I missing something?

# posted by

BG : 10:09 PM

BG:

Did FDR submit his spying on U.S. citizens during WWII to Congress or any court?

# posted by

Charles : 11:21 PM

Did FDR submit his spying on U.S. citizens during WWII to Congress or any court?

Did the Supreme Court's first decisions finding Fourth Amendment protection for phone calls -- Katz and Berger (1967) -- occur much later?

# posted by

Unknown : 10:24 AM

[JaO, quoted in the post]: On the other hand, I am not at all sure most people even realized that is what was going on all along 25-30 years ago, and the dissonance is jarring. The same technological shifts that make it necessary to gather almost all communications at telecom switches, ISPs, etc., also make it possible. This makes a big qualitative change in the tradeoff between liberty and security. It is more feasible for the government to slurp in everything and process it, rather than just targeting certain lines. So while the 1978 legislation did not require a foreign party legally to be identified as a "target," technology effectively did require isolating them.

If the government decades ago wanted to target all my international calls, it used to be that it would be forced to do so explicitly and get a warrant. It lacked the capacity to surveille all international communications and then filter out mine. Today, that capacity is being approached.

This is quite true. In fact, the CALEA Act was an acknowledgement that the technology had changed with the advent of mobile telephony and the Internet (reflected in CALEA updates), so that the archetypical "tap" [the guy with the alligator clips on the local telephone pole] -- which was by nature capable of picking up all the conversations of the subject, and only those conversations -- was no longer feasible.

With CALEA came the requirement for centralised facilities for interception (a technological constraint), but also the requirement for specificity in the target (a legal constraint). In practise, the "specificity" requirement was also a practical one, as the means of delivery of the data to the LEAs was limited by financial and structural constraints; you couldn't put in enough circuits from the telco equipment to the LEAs to handle "broad sweeps" or to let the LEAs do the "filtering", and you really didn't want to (nor did you want the LEAs to do -- or have access to -- the provisioning, so as to be able to snoop on their own accord).

Technology has swung back a bit from that; now OC48 links are practical and getting cheaper by the minute, and computing power is getting large enough to handle the volumes of traffic in more massive interceptions.

In addition, the loss of "locality" and of "identity" in more modern digital communications has made the "filtering" process more difficult, leading some to say, "grab it all, and we'll sort it out later".

Couple that with desires for metadata analysis, traffic analysis, and such, and the push is on for greater quantities of (and capacity for) intercepted data. What was both technically infeasable and legally dubious has now become only a question of policy (and/or law).

So we now should debate what the policy should be: Should we allow snoops? What kind of information? What level of information? For what purposes? And under what circumstances (including level of "suspicion")?

Cheers,

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