The Mysteries of New FISA Section 105B

Marty Lederman

Just a quick head's up to note that there's a very interesting discussion ongoing in our comments section [yes, it can be done!] over at my last post, concerning the possible impact of section 105B.

I've been arguing that the main problem with 105B is that it is touted as a check on the broad scope of section 105A, but in fact its safeguards are toothless. The Washington Post and others have, by contrast, suggested that 105B actually authorizes new forms of NSA searches, over and above those authorized by the very broad new section 105A. I've been doubtful about this because, as I've written previously, in order for a surveillance program to fall within section 105B in the first place, it has to consist purely of acquisitions that are not "electronic surveillance" -- i.e., something that either wasn't covered by FISA already, or that is now not covered by virtue of the new carve-out in section 105A -- in which case section 105B does not provide any additional authorization authority for stuff that would otherwise be FISA-covered.

But as commenters such as Just an Observer, Anonymous Liberal and others have noted, even if I am right, there are at least two other possible important questions raised by 105B:

First, does 105B authorize types of "acquisitions" of information other than "contents" of communications, in a way that would previously have been prohibited by statutes other than FISA, such as the Communications Act, the Stored Communications Act, and the Pen Register Act? Its broad language ("Notwithstanding any other law . . . ") might be read to suggest as much. In other words, perhaps the evisceration of FISA is the least of it.

Second, even if 105B doesn't authorize any activity that was previously prohibited, the compulsory service provisions do appear to vastly increase the ability of the NSA to enlist the service of many private parties to obtain information that once would have been difficult or impossible for NSA to acquire, thereby dramatically increasing the breadth of NSA surveillance as a practical matter. As JaO writes, section 105B might be construed (and probably will be construed by the Executive branch) as "a powerful new government tool for warrantless surveillance directed at a whole new set of platforms where compulsory process is needed. It is vastly easier to issue an administrative 'directive' under 105B than to get a court order. The recipients of such directives can be the legion of ISPs, e-mail hosts such as employers, colleges, etc., and the fragmented Internet hosting industry in general. [On this reading], 105B all by itself is national security letters on steroids, the equivalent of administrative warrants allowing direct-connect, real-time acquisition of a universe of data that never was part of the TSP." If so, then "105A and 105B are independently important and sweeping, although for different reasons. They are not mutually exclusive, and the government can employ either, for distinct sectors and technological platforms, to the government's best advantage."

These are questions well worth careful consideration. More fundamentally, the fact that no one, not even those on the relevant congressional committees, appears to truly understand whether and to what extent 105B does either of these things, and what the exact relationship is between 105A and 105B, is perhaps the biggest problem of all with this legislation: Congress quite simply does not have any sense of what it has authorized -- and therefore, of course, neither does the public. It therefore is incumbent on Congress, at a bare minimum, to make sure that any further statutory amendments are understandable and not subject to creative, unforseen and secret Executive branch interpretations.
Posted 10:09 PM by Marty Lederman [link]