Balkinization  

Sunday, August 12, 2007

A Tale of Capitulation

Marty Lederman

There have been several reports in recent days about just how the Administration managed to induce Congress to give the NSA vast new surveillance authority -- authority that the Administration had not even bothered to ask for when Republicans controlled Congress because at that time -- even immediately after September 11th -- it appeared to be a legislative nonstarter.

The best such account thus far is Joby Warrick and Walter Pincus's piece in today's Post. Warrick and Pincus report, among other things, that two different FISA judges had rejected the January deal as unlawful, after which DNI McConnell "appealed directly to the FISA court, meeting with judges to describe the impact the decisions were having. The judges were sympathetic but said they believed that the law was clear." In other words, the entire FISA Court -- typically very deferential to the NSA -- concluded that the Administration's legal theory was untenable. (And recall that that legal theory was presumably much more modest than those the Administration had relied upon from 2001 to 2007 to engage in warrantless surveillance.)

What appears to have happened, in short, was that under its warrantless "Terrorist Surveillance Program" in place from 2001 to 2007, the NSA intercepted a lot of reportedly valuable communications involving terrorists. The January deal with a FISA judge, struck under pressure as both the Democratic Congress and the courts were challenging the TSP, limited the scope of the surveillance, but it remained extensive. When the entire FISA Court nixed the deal, however -- because it was flatly illegal -- the NSA surveillance became far less effective. Each interception over domestic wires required a FISA court order, and there were thousands of such requests, quickly forming a significant backlog.

At which point McConnell came to Congress, explained the situation, and the Democrats readily agreed to grant the NSA the authority to freely intercept all foreign-to-foreign communications. This wasn't good enough for McConnell, however -- he wanted to be able to freely intercept all foreign-to-domestic communications, as well, even those that have nothing to do with terrorism.

And that is, in effect, what he got.

[UPDATE: I forgot to mention the most distressing part of the story:
"I want to move forward," [McConnell] said. But Democratic leaders wanted something in return: the release of long-sought administration documents describing the controversial warrantless wiretapping program Bush had authorized in the weeks after the Sept. 11, 2001, terrorist attacks.

The administration declined to release the documents, which include Bush's presidential order allowing the wiretaps, as well as the administration's legal opinions justifying the action. Administration officials described a particular showdown with key Democratic leaders -- including Rockefeller and Carl M. Levin (Mich.), chairman of the Senate Armed Services Committee, in which Democrats proposed a trade of sorts. While the exchange was not a quid pro quo, the senators essentially said, "You give us the documents we want, and we'll give you the legislation," according to an administration official present, who said the response was "no." McConnell argued that the Democrats were "looking backwards" and that he was the "forward-looking guy," a witness said.
It's ridiculous that the Congress cannot so much insist upon learning what the NSA was doing for more than five years, and investigate the legal claims on its behalf. That they can't even accomplish these things in exchange for giving the Administration everything it wants by way of legislation speaks volumes about the current state of our constitutional checks and balances.]

Although the Post story today is great, there are two problems with it.

First, Warrick and Pincus write this:
Other provisions in the White House-backed bill added to the Democrats' discomfort. For instance, a Democratic bill would have authorized warrantless surveillance "directed" at individuals reasonably believed to be outside the United States. But the administration's draft -- and the one passed into law -- permitted collecting data "concerning" people reasonably believed to be outside the country. Democrats said the difference between collection efforts "concerning" foreigners and "directed" at foreigners could be enormous, allowing intelligence officials far greater leeway.
I think this is wrong. The enacted bill still requires that the surveillance be "directed at" someone overseas -- which is plenty ambiguous, and plenty vast. The reference to collection "concerning persons reasonably believed to be outside the United States" appears in section 105B, which I do not read to establish an additional source of surveillance authority, distinct from the "directed at" authority afforded in section 105A. (See the fourth paragraph of this post.) If I'm wrong about that -- if Warrick and Pincus are right -- then this new law is infinitely broader, and more troubling, than we've previously assumed.

Second, neither Warrick and Pincus, nor other sources, have yet explained just why the Democrats did not stick to their guns and pass a bill giving the Administration what it publicly had insisted upon -- i.e., warrantless surveillance of foreign-to-foreign communications. Here, for example,is a column by E.J. Dionne two days ago, entitled "Why the Democrats Caved." Dionne writes:
Shortly before noon last Saturday, about 20 House Democrats huddled in Speaker Nancy Pelosi's office to decide what to do about a surveillance bill that had been dumped on them by the Senate before it left town.

Many of the Democrats were furious. They believed they had negotiated in good faith with Mike McConnell, the director of national intelligence. They sought to give the Bush administration the authority it needed to intercept communications involving foreign nationals in terrorism investigations while preserving some oversight.

But the administration held out for granting McConnell and Attorney General Alberto R. Gonzales more power while seriously circumscribing the role of the Foreign Intelligence Surveillance Court. The Senate's Democratic leadership, lacking the votes to pass a measure more to the House's liking, gave the administration what it wanted.

At one point, according to participants in the Pelosi meeting, the passionate discussion veered toward the idea of standing up to the administration -- even at the risk of handing President Bush a chance to bash Democrats on "national security," as is his wont.

Several members from swing districts -- including Reps. Heath Shuler of North Carolina and Patrick J. Murphy of Pennsylvania -- expressed openness to having Congress stay in town to fight if important constitutional issues were at stake.

But the moment passed. Even some very liberal Democrats worried about the political costs of blocking action before the summer recess. That Saturday night, the House sent the president a bill that, as a disgusted Rep. David Wu (D-Ore.) put it, with just a touch of exaggeration, "makes Alberto Gonzalez the sheriff, the judge and the jury."

Most Democrats opposed the bill, but 41 (including Shuler) voted yes, allowing it to pass.
Notice the subtle elision here: "The moment passed." As if there were no human agency involved. Obviously, what happened is that the Democratic leadership decided not to insist that Democrats could vote only to allow warrantless foreign-to-foreign surveillance. Presumably, the Democrats could have simply voted in favor of the Democratic bill, giving the Administration what it professed to need, and sent that bill to the President for his veto. But the leadership chose not to instruct their caucus to do so. And no one has yet quite uncovered the story of why Speaker Pelosi and crew did not simply insist on that course of action.

Comments:

That, as they say, is the $64,000 question. By the way, I just want to tell the folks here how much I appreciate this site. I come here every day to read what you write. Along with "The Last Hurrah," this site is like an oasis in the middle of a hot and mirage-filled desert. Thank you very much.
 

I meant "The Next Hurrah."
 

There was a House bill that was more reasonable, but it got put on the Suspense Calendar where it needed a 2/3 majority to pass. Duh!

And don't Democratic senators every negotiate for an automobile? Always, the salesman negotiates a good deal and then takes it to his boss who rejects it. That negotiating 101. They sound like a bunch of cry babies.

And the this administration had already proved that it was more than willing to play fast and loose with the credibility and reputation of a respected military officer; just ask General Powell.
 

The indications in these two articles of Democratic insistence on a more vigorous oversight role for the FISA court (if not the Inspector General) adds weight to JaO's reading of 105B as optional. The administration's problems with the court appear to be ongoing.

It also allows me to propose a solution to a puzzle I raised just a few hours ago under "Anonymous FISA Spin." In a nutshell the puzzle is this: Under 105B(a)(1), to authorize an acquisition of foreign intelligence under 105B, the DNI and AG must certify that "there are reasonable procedures in place for determining that the acquisition … concerns persons reasonably believed to be located outside the United States, and such procedures will be subject to review of the Court pursuant to section 105C of this Act."

Yet the Act moves the deadline for submitting these selfsame procedures four months out and for review another two months out (not to mention a 30 day appeal period). The House bill (I've yet to see the Senate's) front-ended the functionally analogous process, allowing it at most 45 days from enactment to run its course. As a safety valve, it gave the government emergency powers during the interim, something the Act does not do. The House, moreover, wanted a real-time flow of paper sent to its intelligence and judiciary committees so as to monitor progress on the judicial front but was denied it.

The House was eminently sensible, and consistent with the public image of a President dying to get that "Democrat Congress" to give him the legal means to put a new TSP before the FISA court. What's going on here?

It now seems a just little clearer to me. By back-ending the FISA review stage, the Act buys the administration time. In effect, it extends the life of its 105B option. Assuming it can keep the giant telecoms on board voluntarily – by among other things shutting down the lawsuits against them – it can keep two sets of books, one for 105A and one for 105B. It has four months to make its election.

This puts the FISA court in the tough position of having to ratify the executive's surveillance program after it's been carried out. I can't imagine the judges are happy to have been put in that position. And if there is ongoing friction between the White House and the court, it may play out in the ACLU's motion to unseal the court's January 10 and follow-up orders along with the government's briefs.
 

The article is depressing in various respects.

(1) It mentions the six month sunset without addressing the matter of a program being able to be in place for a year. Sen. Sanders in fact was on Air America on Friday, was asked a question touching upon the issue, and apparently was not aware of the controversy.

(2) It speaks of foreign-foreign communciations but fails to highlight the fact that American citizens are involved here, including those overseas, so 'foreign' under the terms of the act. As with No. 1, this helps citizens remain ignorant of what is at stake.

(3) This legislation was first addressed in APRIL. So Congress had months to investigate the matter, deal with the complexities, and figure out a way to get a better bill. It is not like there was news of a possible attack two weeks ago and they had no time.

(4) The threat of attacks has repeatedly been used for political advantage, not that you'd know from the piece, so one must be wary to take that totally on face value.

(5) The Dems couldn't even get full disclosure of past events, since McConnell was 'forward looking' ... such b.s. As to other sorts of oversight left out, as a past comment said, this has nothing to do with protecting America. It is an executive power grab.

It is true that there was at least one good thing there though it only makes the law more depressing. That is, the old law actually had teeth. The FISA Court, even in the area of national security, respected statutory law. I bet though some were annoyed they did, cries of judicial activism aside.
 

As to the OO's comment, I wonder if there is any chance the ACLU will succeed in some fashion. It seems insane to me that a ruling that 'compels' such a major piece of legislation, even if you like it, is totally classified.
 

Orin Kerr held a discussion concerning a recent story by the "heroes" at the NYT who disclosed the TSP to the enemy, which reveals that the Dems caved when the Executive provided evidence that foreign surveillance intelligence gathering had collapsed by 75% after these misguided FISA judges reneged on the deal which brought the TSP under the FISC.

Further, the article also reveals that the Dem Congress was holding reform of FISA (and the nation's security) hostage to a demand by the Dems judiciary committee for documents about the TSP which are properly the purview of the intelligence committees. Given that Judiciary has no jurisdiction over the operation of intelligence gathering, the only purpose for these documents would be in pursuit of yet another partisan witch hunt. In short, the Dems were holding the security of the country hostage to score cheap political points in the press.

Finally, the quotes from the Dems indicate that these Asses (meant as a use of the party symbol and as an objective measure of the character of these estimable characters in this matter) collapsed not because they were concerned about an attack on the nation, but rather that they would be blamed for such an attack.

I cannot even begin to describe my feelings concerning this reprehensible behavior in the polite terms demanded by this forum.

I do not suppose there is any chance that anyone here will join me in condemning this abomination?
 

Does anyone agree with Julian Sanchez's skepticism about what we've been told about the FISA court ruling?
 

Bart, I heartily condemn those contemptible persons who ignore the vital role of a free press in American society and the importance of curbing the abuses of the government by ensuring that Americans can openly debate the merits of government programs that may constitute an invasion of privacy.

If you really believe that a free press compromises the government's ability to protect you against terrorist attacks, you are welcome to move to a dictatorship where that will not be a problem.
 

Thanks, Bart, for the NYT article. It was helpful, and the first piece I've seen note the Act's postponement of FISA court review. (Maybe we'll see an article that adds the word "indefinitely.")

Two further observations.

First, the Times never mentions a demand for documents by the judiciary committees, and I'm not sure the intelligence committees were left completely in the dark. Glenn Greenwald says Feingold has read at least one FISA court opinion. If so, it was probably as an Intelligence Committee member. He was ready to do a technological fix but skeptical that this was all the White House wanted. And if kcindc's linked-to LA Times article is any indication, even the outcry about "a technological terrorist loophole" may have an element of spin to it.

Second, if what I have reflects the White House's early proposal, it overreached from the get-go. Here's its proposed to redefinition of "electronic surveillance (from a proposed "Intelligence Authorization Act for Fiscal Year 2008," though I've seen it elsewhere):

Under the amended definition, “electronic surveillance” would mean: “(1) the installation or use of an electronic, mechanical, or other surveillance device for acquiring information by intentionally directing surveillance at a particular, known person who is reasonably believed to be located within the United States under circumstances in which that person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; or (2) the intentional acquisition of the contents of any communication under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, if both the sender and all intended recipients are reasonably believed to be located within the United States.

(It also proposed to redefine "contents" to mean "any information concerning the substance, purport, or meaning of that communication.")

Despite the structural differences, it resembles what the White House insisted on right through to the bitter end and got.
 

Marty, I agree that the difference between "concerning" and "directed at" in 105B doesn't seem to affect the calculation when it comes to electronic surveillance (because 105B incorporates by reference the definition of "electronic surveillance", thereby looping back in the "directed at" language).

But is it possible that 105B is intended to provide a mechanism for avoiding other laws (like the Communications Act, the Stored Communications Act, the Pen Register Act, etc.)?

Here's the language of 105B:
Notwithstanding any other law, the Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States . . .

Doesn't this basically give the AG and DNI the authority to bypass all other laws so long as they are gathering foreign intel info "concerning" someone believed to be outside the U.S.?
 

I, too, thought the Post got a little confused about "concerning" vs "directed at."

And, as A.L. correctly notes, the vague "concerning" term also appears in the new section 105B, further broadening that provision's grant of new authority for warrantless surveillance.

To make myself clear, although I believe 105B is optional, it is only effectively optional when service providers do not cooperate voluntarily with the government. In the case of the big telecoms, we have every reason to believe they will cooperate voluntarily because they reportedly did so to facilitate the so-called "TSP." That program, according to the original NYT reports and subsequent knowledgeable speculation, was based on intercepts at telecom switches. If the same telecoms cooperate voluntarily again today, there is no reason for 105B to be invoked for that part of the overall surveillance strategy.

So everyone should stop trying to interpret 105B as some safeguard applied to TSP-like surveillance programs. It is not that.

Rather, 105B is 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, email hosts such as employers, colleges, etc., and the fragmented Internet hosting industry in general.

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.
 

As a panelist on the NPR game show "Wait, Wait, Don't Tell Me" suggested this weekend, I believe the reason for the Democratic capitulation is because somewhere Bush or the Republicans have "a picture of Democrats naked with a goat," or something of that sort. The illegal spying by this administration is probably being used for political blackmail and manipulation, IMHO.
 

JaO,

I would like to expand on your excellent post at 4:21 with speculation and questions.

While we tend to think of ISPs and telcos as the target, 105B would apply to any U.S. citizen who is hosting a message board, chat server or email server from their home. It would even apply to a home answering machine because messages can be left and retrieved by individuals currently residing outside of the United States.

While this may seem far fetched to some, a password protected chat server or message board hosted at home by an individual U.S. citizen and accessed through SSL is a very effective counter measure to upstream surveillance. In this situation the government is going to want access to the computer running the chat server or message board.

I think the language "...either as they are transmitted or while they are stored, or equipment that is being or may be used to transmit or store such communications;" could even be applied to any U.S. citizen's saved email by forcing them to turn over any communications received or sent to a foreign source.

I am very curious about the fourth amendment issues surrounding this section of the bill. This legislation seems to say that as long as the government is pursuing foreign intelligence information and the target is not in the U.S., then the fourth amendment doesn't apply to US citizens residing in the U.S.

In other words, the government could not search my computer without a warrant if I were the target of the surveillance, but the government could search my computer without a warrant if the target was outside of the U.S.

I think 105B may be the most important change in FISA. Not to downplay the importance of other changes, but from my reading, 105B would allow the government to search and seize my computer and force me to install surveillance software/equipment on my computer. All without a warrant and with my silence on the matter forced by law.

The fact that I am not the "target" of the surveillance is no consolation to me, and I have a hard time seeing how the fourth amendment does not apply simply because of the pursuit of foreign intelligence information.

But,
IANAL
IANASCJ
IAFW (I am frequently wrong)
 

Why did the FISA rule it was "flatly illegal" to intercept foreign-to-foreign communications inside the USA?

Is it possible that surveillance concerning - but not directed at - a person outside the USA is still electronic surveillance
 

thelastnamechosen,

In general I agree that the universe of systems that might be on the receiving end of a 105B "directive" is extremely broad. It is not limited to commercial service providers or to any specific technology or form of communication, such as email. Anyone who might be the "custodian" or even "has access to" any form of data that might be considered "communications" could get such an administrative "directive." That is explicit in 105B:

(3) the acquisition involves obtaining the foreign intelligence information from or with the assistance of a communications service provider, custodian, or other person (including any officer, employee, agent, or other specified person of such service provider, custodian, or other person) who has access to communications, either as they are transmitted or while they are stored, or equipment that is being or may be used to transmit or store such communications;

As I see it, that could encompass large and small ISPs, email hosts (including colleges, employers and private sites, commercial or not), as well as the other platforms and technologies you mention.

So 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 goverenment's best advantage. The key distinction is whether the keeper of the data cooperates voluntarily or not.

For platforms such as big telecoms, which apparently have cooperated voluntarily before and may do so again, that means the government under 105A could be wholly free of such nicities as minimization procedures. For other platforms, such as the varied and fragmented hosts I mentioned above, there are some more barriers and safeguards under the new tools authorized by 105B, but much fewer than there were before this legislation was enacted. It used to be that court orders and probable cause would have been necessary.
 

Why did the FISA rule it was "flatly illegal" to intercept foreign-to-foreign communications inside the USA?

Because the original FISA language (i.e., the language before the recent amendments) required a warrant if the point of intercept was within the US.
 

Mark Field,

I see where that applies for "any wire communication to or from a person in the United States", but not for foreign-to-foreign communications.
 

Correcting my 4:21 comment, in the following sentence --

To make myself clear, although I believe 105B is optional, it is only effectively optional when service providers do not cooperate voluntarily with the government.

-- strike "do not"

Obviously, if the service providers do not cooperate, the government must invoke 105B to get the data.
 

Why did the FISA rule it was "flatly illegal" to intercept foreign-to-foreign communications inside the USA?

The Post actually said this: "In May, a judge on the same court went further, telling the administration flatly that the law's wording required the government to get a warrant whenever a fixed wire is involved."

I suspect the Post worded that confusingly. In fact, under 50 USC 1801(f), it is already flatly legal to to intercept foreigner-to-foreigner communications on a wire inside the U.S. without a warrant.

I think the best explanation has come from the LA Times reporting of the court rulings, which was that there was a technical problem knowing with certainty whether the communications in question were, in fact, foreigner-to-foreigner. It may be that the court believed that for a whole class of communications, the factual uncertainty was so great that it decided to require warrants.

Interestingly, in all of the reports about the adverse court ruling, there has never been any mention of the government appealing it to the FISA court of review, as it had the right to do.

Remember when the original FISA court orders, described as creative by Gonzales, were announced in January? He tried to give the impression, without actually saying so explicitly, that the orders authorized as much surveillance as the warrantless TSP program had. Many commenters were puzzled because that seemed implausible. Apparently the doubters were correct, even if they did not know why. The original FISA judge did not find much support within the secret bench. And as far as we know, the government did not even try to appeal.
 

JaO,

Thanks for your reply. Do you think my fourth amendment concern with 105B has any legs?

It seems rather odd that the government could search my property without a warrant as long as they were looking for the communications of an individual that has no fourth amendment protection.

I had always thought the fourth amendment applied to the person, place or thing being searched as opposed to the person that the government is targeting in the search.

Interestingly, in all of the reports about the adverse court ruling, there has never been any mention of the government appealing it to the FISA court of review, as it had the right to do.

My speculation--the Bush administration got approval from one FISC judge, then lost in front of the second. They then decided to try again with the FISC lottery and another judge and lost again.

They then did an emergency appeal to the FISC of review, lost that, and then sat on the situation for months while continuing the same surveillance outside of FISA. Waited until right before congress took their well deserved vacation and placed the winning bet that congress would fold.

John Boehner said:

"There's been a ruling, over the last four or five months, that prohibits the ability of our intelligence services and our counterintelligence people from listening in to two terrorists in other parts of the world where the communication could come through the United States"

Four or five months is a hell of a long time.

We are going to need extra laugh tracks for this tragi/comedy if after all the capitulation of congress, it ends up with another adverse ruling from the FISC. Maybe we can do the FISA shuffle all over again:)
 

there was a technical problem knowing with certainty whether the communications in question were, in fact, foreigner-to-foreigner

So, how do we balance the need for quick surveillance (we can't have thousands of warrants waiting in a queue) and still protect the few odd cases involving persons inside the USA?
 

thelastnamechosen: Do you think my fourth amendment concern with 105B has any legs?

I am wondering the same thing myself. I do not claim to be a Fourth Amendment expert. Sorry to duck, but I have always believed that "I don't know" is an okay answer to a good question.

At least there is a chance for some judicial review under the statute, which would depend on the will and ability of some provider to challenge Uncle Sam in the secret venue of the FISA courts. It is even unclear how much we would know about the disposition of such cases. Even in a Supreme Court appeal, the statute calls for the Chief Justice to establish "security measures ... in consultation with the Attorney General and the Director of National Intelligence."

See the answer Orin Kerr got to his second question to the White House official
here.
 

This comment has been removed by the author.
 

just_looking: So, how do we balance the need for quick surveillance (we can't have thousands of warrants waiting in a queue) and still protect the few odd cases involving persons inside the USA?

I thought the House Democrats, after negotiating with McConnell, made a pretty good stab at that. Their bill, which did not involve lots of individual warrants, seemed to give jurisdiction to the FISA court to do what it thought it lacked the jurisdiction to do under existing law -- approve a general court order with a fact-determining methodolgy developed with robust court and congressional oversight. The White House said it would veto that bill.
 

JaO,

Thanks again for your reply and link.

I find it very interesting that the FISC is moving away from being a very specialized court that simply affirmed whether the government was targeting an agent of a foreign power, to a parallel secret court system that will handle appeals from U.S. citizens and possibly make constitutional determinations.

Maybe soon we can get a Foreign Intelligence Surveillance Supreme Court (FISSC). It will certainly eliminate the tedium of having to wade through court decisions.
 

Propose a national identification system.....and the public would howl.

Yet, we are giving away our 4th Amendment rights by the car load in this legislation. Secret courts; select in camera reviews; unpublished Presidential orders; provisons so labyrinthine that less than 10% of the legislators could comprehemsively describe the law itself.

The worry isn't in this piece of legislation; it's in the ongoing rush to totalitarian rule.
 

Prof. Lederman:

What appears to have happened, in short, was that under its warrantless "Terrorist Surveillance Program" in place from 2001 to 2007, the NSA intercepted a lot of reportedly valuable communications involving terrorists. The January deal with a FISA judge, struck under pressure as both the Democratic Congress and the courts were challenging the TSP, limited the scope of the surveillance, but it remained extensive. When the entire FISA Court nixed the deal, however -- because it was flatly illegal -- the NSA surveillance became far less effective. Each interception over domestic wires required a FISA court order, and there were thousands of such requests, quickly forming a significant backlog.

At which point McConnell came to Congress, explained the situation, and the Democrats readily agreed to grant the NSA the authority to freely intercept all foreign-to-foreign communications. This wasn't good enough for McConnell, however -- he wanted to be able to freely intercept all foreign-to-domestic communications, as well, even those that have nothing to do with terrorism.


I have previously pointed out that foreign-to-foreign calls are fair game for warrantless taps, even under 50 USC § 1801(f)(2).

I suggested that the problem would occur if the intercepts inadvertently (or necessarily), because of the nature of the taps, included calls to/from domestic parties. Because we don't know enough about the mechanisms of intercept, we can't say for sure, but, legally, it is only calls of the latter nature that would be an issue for the FISC.

If anything, the dispute would seem to have been on what to do with these domestic calls (at least when no FISA court orders were obtained). Maybe an initial appraisal was that the level of inadvertent domestic intercepts wasn't enough to be troublesome and that minimisation procedures were sufficient. It may be that subsequent courts decided that as long as they knew in advance that some domestic calls would be picked up, this was enough to show the intercepts were "intentional".

Less likely would be a maladministration position that domestic calls didn't need a FISA court order under § 1801(f)(2), with the FISA court then subsequently disagreeing with this.

Just my NSHO.

Cheers,
 

Hmmmmm. Another random though:

If the intercepts in question were of Internet "store and forward" type communications, or of Internet "correspondence" (though blogs, IM, or other such means), via Web servers or companies located in the United States, could this have implicated the "communications" in which one of the "parties" was in the United States?

I don't think it likely, but it is a possibility. Arguing against it is that you really don't need a warrant to snoop publicly available information (albeit this wouldn't be true of domestic P2P e-mail services).

Cheers,
 

thelastnamechosen:

While this may seem far fetched to some, a password protected chat server or message board hosted at home by an individual U.S. citizen and accessed through SSL is a very effective counter measure to upstream surveillance. In this situation the government is going to want access to the computer running the chat server or message board.

If they're setting up explicitly (or at least in part) for purposes of secure terrorist communications, asking them for access kind of defeats the purpose....

Cheers,
 

If they're setting up explicitly (or at least in part) for purposes of secure terrorist communications, asking them for access kind of defeats the purpose....

Arne,

If the purpose is to eavesdrop on certain communications without the knowledge of those participants, and the person running the server is in league with those participants as a conspirator, then you are correct.

If the purpose is to discourage and severely hamper the ability of individual U.S. citizens to offer anonymous encrypted communications services, then I think you would not be correct.

Your post indirectly bring up a very good question, if our hypothetical person running the encrypted server is presented with a demand for information under 105B and proceeded to securely delete that information, would they be subject to contempt under 105B? My gut feeling is yes.

So, in your above example the government could get access to the computer or jail the facilitator of the terrorist's communications. Whether or not this serves the purpose will be dictated by the specific circumstances.

Another question that flows from this is, could the government seize the computer at the presentation of the 105B demand under the theory of protecting evidence from destruction? Again, my gut feeling is yes.
 

thelastnamechosen:

If the purpose is to eavesdrop on certain communications without the knowledge of those participants, and the person running the server is in league with those participants as a conspirator, then you are correct.

If the purpose is to discourage and severely hamper the ability of individual U.S. citizens to offer anonymous encrypted communications services, then I think you would not be correct.


Ummm, even the latest CALEA regulations state that all ISPs must have capacity for lawful intercept. We've seen a lot of the little guys finally figuring it out recently as the May 14th deadline approached. Whether that extends to "anonymizers" and such, I don't know. It probably does if offered as a public service for cost (but the new law is a bit hazy here, as people like JaO have pointed out; it could apply to anyone who has access to potential "communications" or "information"). Whether it should is a different question, of course (FWIW, I've seen web hits on my blog from China where the information on the IP, referrer, machine, and query have been 'wiped'; I think it is a good thing considering China's less-than-stellar record of civil liberties and blocking web access).

Your post indirectly bring up a very good question, if our hypothetical person running the encrypted server is presented with a demand for information under 105B and proceeded to securely delete that information, would they be subject to contempt under 105B? My gut feeling is yes.

I would think so too, if not OOJ charges.

So, in your above example the government could get access to the computer or jail the facilitator of the terrorist's communications. Whether or not this serves the purpose will be dictated by the specific circumstances.

True. But that ascribes different motives (albeit not publicly acknowledged) to the laws than just intercept capability.

Not that the spooks are above such; witness their tewaking of the DES standard, and their intimidation of the public-key scientists a while back.

Another question that flows from this is, could the government seize the computer at the presentation of the 105B demand under the theory of protecting evidence from destruction? Again, my gut feeling is yes.

Prolly.

If I were writing the laws, I would have limited any such requirements (amongst other thing such as requiring warrants) to only "common carriers"; the big boys.

Cheers,
 

Arne,

Thanks for a great reply. I always forget about CALEA. Do I understand correctly that CALEA only applies to commercial providers?

True. But that ascribes different motives (albeit not publicly acknowledged) to the laws than just intercept capability.

Not that the spooks are above such; witness their tewaking of the DES standard, and their intimidation of the public-key scientists a while back.


I am very interested in the idea of gaming systems, and so tend to take that approach when analyzing any rule set. Whether this leads to thoughtful analysis is a different question entirely:)

Your comment quoted above transitions very well into my next question that I addressed in the thread above. What do you think of the possibility we will see another attempt at the Clipper chip or other legislation addressing encryption before the end of Bush's term?
 

thelastnamechosen:

What do you think of the possibility we will see another attempt at the Clipper chip or other legislation addressing encryption before the end of Bush's term?

Some countries have already banned the use of any communication via encryptation that cannot be decoded by the gummint.

They tried to do this de facto here by squelching the PKE research and classifying it. They did not succeed.

There will be a tension between the gummint's desire to be able to snoop "baddies" and civil liberties (and privacy issues, which also include economic considerations and costs; for instance the obsolescence of the DES key and vulnerability to hacking and theft are costs aside from mere privacy issues that we've borne due to the NSA's other priority of being able to snoop anyone).

There's also tension between the NSA's own mandates to snoop, and also to ensure the integrity of our own codes and information against foreigners.

I suspect those that think highly of snooping will (continute to) demand that no unbreakable codes be used, and possibly push for sanctions, even criminal ones, for evading such. I hope that, just as the gummint lost on the PKE, they lose those battles as well. I judge the costs (and risks) to far outweigh the benefits of ensuring that the gummint can snoop whoever they want. The gummint has other ways of dealing with real "baddies".

Cheers,
 

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