Balkinization: Minimizing Minimization

Comments:

-- Under the legislation, the government's protocol for monitoring foreign communications has to satisfy the traditional minimization requirements of 50 U.S.C. 1801(h). See the new 1805A(5) --
.
Under the S.1927 protocol, the minimization requirement is a determination of the DNI and AG, "transmitted to the court under seal" and "to remain under seal (not seen by the court) unless the certification is necessary to determine the legality of the acquisition under section 105B"
.
That challenge would be triggered at 105B(h), if any telco or ISP is nuts enough to buck the system, and even then, the initial court review may find the complaint to be "frivolous" and not open the sealed package.
.
In contrast, under the previous procedure, "minimization" was critically evaluated by the court. I suspect that minimization deficiencies (in the court's eyes) were the root source of most FISA warrant modifications.
.
8.10.2007 7:06am
.
More "FISA-2007 in a nutshell" conveniently offered in the same neighborhood as the "7:06am" link.
.
And the more I think about it, the less I buy the "105A" can operate on its own. The only examples I've seen of that are either a black bag job (the feds "just do it" on their own, badges, guns, etc.), or the ISP/telco "does it voluntarily" which I take as doing so with no written order from the government, administrative or administrative accompanied with "oomph" from a court.

# posted by

cboldt : 5:54 PM

One general area where there are significant differences among the various minimization regimes is that of topicality -- does the surveillance have to concentrate on "foreign intelligence information," and if so what does that mean?

* Under traditional FISA court orders, there is a definition of that term of art in 50 USC 1801(e). It restricts the subject to information necessary to defend against foreign or terrorist attacks, sabotage or spying, or necessary to U.S. "defense," "security" or the conduct of "foreign affairs." Further, there are specific minimization procedures typically applied by the FISA court to ensure that each collected and retained message concerns such matters.

* Under the more general requirements of the new section 105B, that definition of "foreign intelligence information" still applies, since 105B is part of the same FISA subchapter. However, there are no specific minimization rules prescribed to enforce this limit, such as those in the FISA court orders.

* Under the alternate, inherent authority for conducting foreign surveillance -- enabled by the freestanding "clarification" of section 105A -- there are basically no such limits. Almost anything about any person or entity abroad can be construed to be in bounds.

At the statutory level, the 50 USC 1801(e) definition of "foreign intelligence information" does not even apply, since the carve-out for the inherent-authority survellance operates outside of and predates FISA in the overall construction of wiretap statutes.

Within the executive branch, the formal policy regulating such surveillance reflects such broad scope. In the first place, the relevant term of art is defined differently, with the key term being "FOREIGN INTELLIGENCE." See how broad the definition of this term is in USSID-18 (all-caps in original, denoting defined terms; boldfaced emphasis is mine):

FOREIGN INTELLIGENCE means information relating to the capabilities, intentions, and activities of FOREIGN POWERS, organizations, or persons, and for purposes of this USSID includes both positive FOREIGN INTELLIGENCE and counterintelligence.

Further, the rules for collection, processing, retention and dissemination have few limits related to such definition. When the term of art FOREIGN INTELLIGENCE is mentioned, its effect tends to broaden allowable scope rather than restrict it. (See, for example, 4.1(b)(3) in SECTION 4 of USSID-18.)

Overall, I am more skeptical than ever of proponents of the PAA who would have us believe that "minimization" will keep the surveillance confined to "terrorists." The real policy issue before us -- already decided as a fait accompli for up to six months -- is whether to allow surveillance of almost any of our international communications with few restrictions. Maybe FISA did allow much of that de facto years ago, and maybe that should be our policy going forward. But let's engage that issue openly.

# posted by

JaO : 7:44 PM