Balkinization  

Saturday, August 04, 2007

Two Questions About the FISA Amendment

Marty Lederman

As noted below, the key to understanding the FISA bill is that it will categorically exclude from FISA's requirements any and all "surveillance directed at a person reasonably believed to be located outside of the United States," even if the surveillance occurs in the U.S.; even if the surveillance has nothing whatsoever to do with Al Qaeda, terrorism or crime; and, most importantly, even if the surveillance picks up communications of U.S. persons here in the States -- indeed, even if the surveillance is in part designed to intercept U.S. communications, so long as it is also "directed at" someone overseas.

So, two questions:

1. Doesn't this give the NSA all it had under the "TSP" between March 2004 and January 2007 -- and much, much more, since there's no requirement of any tie to an Al-Qaeda-related person? If so, and if they could get this sort of a deal from a Democratic-controlled Congress, what does that say about their unwillingness to go to a Republican-led Congress for those four years to seek a similar legislative fix, and to violate FISA unilaterally and in secret on the basis of a threadbare AUMF/Article II rationale? Is there any excuse now for their not having invoked the ordinary constitutional processes?

2. The amendment means, I think, that as far as statutory law is concerned, all of our international phone calls and e-mails can be surveilled, without exception, as long as the surveillance is in some sense "directed at" a person overseas. As I asked yesterday, is that OK from a Fourth Amendment perspective?

Comments:

The amendment means, I think, that as far as statutory law is concerned, all of our international phone calls and e-mails can be surveilled, without exception, as long as the surveillance is in some sense "directed at" a person overseas. As I asked yesterday, is that OK from a Fourth Amendment perspective?

Perhaps someone more technically knowledgeable can answer this, but my understanding is that email gets distributed into separate packets, each one capable of taking a different route. Some of those routes could easily be foreign (e.g., through Canada). Assuming I'm correct, would that accident of technology make all such emails subject to government review?
 

There are hundreds of ways and places that the TSP could have been conducted. Only one [where the conversations are intercepted in the ATT international communications switching facility in New Jersey] is prohibited by FISA without a warrant. The rest involve thousands of miles of cable and a half dozen countries through which the message passes. Administration critics have insisted, without any proof other than an ambiguous and incoherent sentence fragment uttered by Gonzales on a late night talk show, that the NSA specifically choose this one prohibited place to collect conversations rather than using any of the legal methods. Clearly the proposed modification of FISA allows the program to now operate in New Jersey. It does close off the one possible claim that anyone might make the the program could be operating illegally, but it was probably only someone's wishful thinking that there was any problem in the first place.

Obviously if a foreign conversation is picked up outside the US then the Fourth Amendment doesn't apply. If it is collected inside the US, however, then you could at least imagine trying to overturn the prior court decisions to create some new Fourth Amendment restrictions on national security searches.
 

Doesn't this give the NSA all it had under the "TSP" between March 2004 and January 2007 -- and much, much more, since there's no requirement of any tie to an Al-Qaeda-related person?

Yes, I think that is clear.

Is there any excuse now for their not having invoked the ordinary constitutional processes?

Of course not. There never was an excuse legally. Politically, as one commenter remarked a long time ago, right after 9/11 Congress would have enacted a requirement that everyone walk down the street whistling Yankee Doodle if Bush had asked for it in the name of fighting terrorism.

The amendment means, I think, that as far as statutory law is concerned, all of our international phone calls and e-mails can be surveilled, without exception, as long as the surveillance is in some sense "directed at" a person overseas.

I basically agree. The only remaining requirement I know of is that the surveillance comprise "acquisition ... of foreign intelligence information" under 18 USC 2511(f), which is the general carve-out from Title III (whatever that means). I know if nothing that clearly excludes any political, private or commercial activity from that ambit. I am not an expert, but I have no doubt that David Addington will construe it to mean whatever he wants.

As I asked yesterday, is that OK from a Fourth Amendment perspective?

As I said in my response to your prior post, I think the objective answer is that the question is unsettled. A more useful follow-up question, I think, is how -- or whether -- will it ever be settled?

Because of Title III, we likely will not encounter a test under the exclusionary rule in any criminal case. That assumes that the government never gets caught using the fruits of such non-FISA spying in a criminal case, or deliberately tries to expand that envelope to a prosecution.

Civil plaintiffs obviously have great difficulty with standing, the Catch 22 of knowing who is surveilled in the first place, and the doctrine of state-secrets privilege. Prof. Kerr is forever reminding us that without a lot of facts, Fourth Amendment questions cannot be adjudicated. Not many observers, even sympathetic ones such as the dissenting judge in the Sixth Circuit, thought Judge Taylor's Fourth Amendment holding in ACLU v NSA was very strong. (The FISA violations were a different story.)

So where is the case going to come from that answers the Fourth Amendment question you pose?
 

As to the 4A question, I repeat my argument that it is a matter of how we define it. Some sort of narrow reading of precedent will get you somewhere differently than the broader arguments put forth by others.

As to the failure to get standing, the fact something cannot be adjudicated doesn't make it constitutionally acceptable. Constitutional demands apply to all branches, including acts that are political or likely not to go to court. We are left with non-judicial means to enforce constitutional norms in such cases.

As to the district court's 4A ruling, count me among those with some more respect, though quite honestly I didn't see too many really giving it much respectful review (summary statements her opinion was poorly written etc. seemed prevalent, even here).

The dissenting judge in the appellate court seemed to support a sort of 4A+ approach, noting, e.g., the standing of certain organizations that were harmed. As with the home, the 4A also is particularly important for such groups, though associational rights etc. might be the key focus.

One example would be press rooms, see the dissent in the Zurcher case and some legislation passed in that respect. Anyway, count me among those who think carte blanche access to my emails and phone calls when dealing with those in other countries -- even Canada and Latin America where millions have relatives in my city alone -- is a serious 4A issue, even if no court will decide the issue.

Of course, if Congress gives in, some will say there is no "reasonable expecation of privacy," but simply put that is a subjective test in many respects. So, the answer the question is ultimately up to us, isn't it?
 

Professor Lederman:

1. Doesn't this give the NSA all it had under the "TSP" between March 2004 and January 2007 -- and much, much more, since there's no requirement of any tie to an Al-Qaeda-related person? If so, and if they could get this sort of a deal from a Democratic-controlled Congress, what does that say about their unwillingness to go to a Republican-led Congress for those four years to seek a similar legislative fix, and to violate FISA unilaterally and in secret on the basis of a threadbare AUMF/Article II rationale? Is there any excuse now for their not having invoked the ordinary constitutional processes?

And what would it mean that they told Congress and the FISC that NSA was conducting this surveillance?

It means that the President (correctly in my opinion) believed that he had the Article II power to do so and that Congress did not have a concurrent Article I power to direct foreign intelligence gathering.

The President made a significant legal and policy error agreeing to submit the TSP to the FISC. Not only does this current element of our foreign intelligence gathering get hamstring by legislative and judicial second guessing, but any future President wishing to exercise his or her power to conduct foreign intelligence gathering will be confronted with Mr. Bush's concession of his powers in this case as precedent.

2. The amendment means, I think, that as far as statutory law is concerned, all of our international phone calls and e-mails can be surveilled, without exception, as long as the surveillance is in some sense "directed at" a person overseas.

It is my understanding from the reporting that the TSP is directed at foreign telephone numbers captured from al Qaeda or its allies. Consequently, because NSA surveillance is directed at a miniscule subset of foreign telephone numbers, I would think that this surveillance is also limited to an even more miniscule subset of US international telecommunications to and from these numbers.

As I asked yesterday, is that OK from a Fourth Amendment perspective?

Given that every other movement across our borders is subject to search without having to seek a warrant under the 4th Amendment, I do not see why there should be a greater expectation of privacy for telecommunications.
 

I am not a computer expert, but I as to the question raised in your post, I think most email and indeed almost all electronic communications would be fair game under that statute.

Consider, for example, this website. Unless you are hosting on your own servers (I don't think you are, but correct me if I'm wrong). A blog on blogger.com is wherever Google decides to store it--be it in their new massive server farm in Washington state, or overseas in one of their other server operations (I know Google has a massive operation in Ireland, for example). So, according to the act, the postings and comments on this blog--whether they are posted by US citizens or law professors teaching in US universities--are all fair game. This may be the real reason that the administration wants this act and maybe a reason why it is that the Democrats in Congress appear so willing to comply.

Both sides are feeling the heat and influence of net-based efforts (witness YearlyKos, which all of the Democratic presidential candidates attended this year) and all would like to cut it's influence. The first step may be monitoring posts to blogs across the internet for potential "terroristic content" (which is essentially whatever the administration arbitrarily defines it to be), tracing the IP addresses of dissenters, and then issuing National Security Letters to silence critics. I think the Republicans actively want this (they are undoubtedly loosing the war on the net, in spite of a substantial head start) and the Democrats, especially those in Congress, are ambivalent.

I may be too cynical, but given the audacity of this administration and the willingness of the Democrats to indulge Bush & Co., nothing surprises me anymore.
 

FWIW, here's the basic text of a letter I sent today to the 16 Senate Democrats who capitulated to the administration:

Senators:

I write to express my dismay at your August 3 vote in favor of the Bush administration's proposal to continue its warrantless surveillance of Americans.

According to published reports, the administration has been intercepting countless communications through telecommunications switches located within the United States. Ostensibly, the administration's sole purpose is to spy on those with suspected ties to terrorists. Nevertheless, communications to and from Americans are inevitably intercepted in the course of this warrantless surveillance. This reportedly caused a FISA court to hold this aspect of the administration's surveillance program illegal.

Everyone agrees that foreign-to-foreign communications should be intercepted without a warrant no matter where the interception takes place. Nevertheless, surveillance of identified Americans in America should absolutely require a warrant.

Democrats advanced a perfectly sensible proposal clarifying that warrants are not required to intercept foreign-to-foreign communications. The proposal would have required the FISA court to sign off on measures designed by the Attorney General to insure that (1) the warrantless surveillance would be focused on what are reasonably likely to be terror-related communications; (2) proper minimization procedures would be followed to safeguard information about Americans; and (3) if specific Americans were identified in the course of the warrantless surveillance, continued surveillance of those individuals would require a FISA warrant. Finally, the proposal would have required DOJ's Inspector General to conduct a thorough audit of the program to determine, among other things, how many Americans had been identified or surveilled. The results of this audit would enable Congress to determine whether any changes were necessary after the program's 120-day sunset.

The administration petulantly rejected this proposal, despite the reported agreement of Director of National Intelligence Michael McConnell. Instead, the administration placed the protection of Americans' civil liberties in the hands of Alberto Gonzales – George Bush's loyal stooge, who has signed off on every one of the administration's illegal activities then stonewalled and lied to cover them up.

Your vote to approve the administration's proposal is all the more astonishing in context. To help gain passage of the Patriot Act amendments, President Bush assured the American people that his administration would still get warrants to spy on Americans. This was a lie. After the Patriot Act amendments were enacted, the administration assured Congress that it now had all the authority it needed to keep America safe. Meanwhile it was secretly violating the very law it was praising. After New York Times reporters discovered the illegal surveillance, the administration induced the Times to delay publishing the story based on false assurances that there was no dispute about the program's legality within the Justice Department. After the Times finally revealed the illegal surveillance, the administration has continued to lie and stonewall, contemptuously rejecting any oversight of its lawless behavior. If Congress didn't approve the administration's proposal as is, Trent Lott ominously warned, Washington, D.C. should be evacuated until at least September 12.

Those of us who have impatiently endured such nonsense for the last six years were encouraged when Democrats gained control of the House and the Senate. Finally this "unitary Executive" would not run roughshod over a supine Congress, we thought. Well, so much for that.

You are all professional politicians, and you surely know more about getting re-elected than I do. Still. I wonder if you appreciate the growing anger within the Democratic base – which accounts in large part for the abysmal approval ratings Congress receives today. The problem isn't that you aren't liberal enough for a moonbat base, but that you're too timid to take a stand against the lockstep Republican partisanship that has taken no prisoners in its march to the brink of disaster. Your vote on this measure wasn't liberal or conservative or centrist; it was merely a partisan political capitulation.

It would be wonderful if there were bipartisan, centrist solutions to our nation's current problems. At least in theory they would be the most enduring means of regaining our balance. But in case you hadn't noticed, the Bush administration and its enablers have no regard for disinterested policy-making. They will take what you give them and club you over the head for the rest. It's bad enough to bring a knife to a gunfight, but it's ludicrous to bring a covered dish.

You won't persuade people you're tough on terror by capitulating to George Bush. Instead, you'll prove that you aren't tough enough to face down an unpopular, discredited President whose policies the American people have unambiguously repudiated.

The American people spoke to you in the 2006 elections. Please listen. And then act.
 

Essentially the FISA becomes the SA. Wouldn't this just gut FISA? The result seems to be that anyone in the US communicating with anyone outside the US subjects themselves to unchecked snooping.

Somehow I'm not concerned personally, because as a US citizen I stupidly believe that none of this collection could be used in court. But that is the point: none of this information could ever be used unless we kidnap our citizens/residents and use secret trials to present the evidence outside the Federal Courts.

The big problem is that we think that sifting through mountains of data is a good way to spend our limited resources.

Another issue is the mindset that we can have Total Information Awareness.

Very dangerous thinking.
 

rmadilo said:
none of this information could ever be used unless we kidnap our citizens/residents and use secret trials to present the evidence outside the Federal Courts

Bush's latest executive order may give him that power.

Executive Order: Blocking Property of Persons Undermining the Sovereignty of Lebanon or Its Democratic Processes and Institutions

This order will block the property and interests in property of persons determined by the Secretary of the Treasury, in consultation with the Secretary of State, to have taken, or to pose a significant risk of taking, actions, including acts of violence, that have the purpose or effect of undermining Lebanon's democratic processes or institutions or contributing to the breakdown of the rule of law in Lebanon, supporting the reassertion of Syrian control or contributing to Syrian interference in Lebanon, or infringing upon or undermining Lebanese sovereignty. The order further authorizes the Secretary of the Treasury, in consultation with the Secretary of State, to block the property and interests in property of those persons determined to have materially assisted, sponsored, or provided financing, material, logistical, or technical support for, or goods or services in support of, such actions or any person whose property and interests in property are blocked pursuant to the order; to be a spouse or dependent child of any person whose property and interests in property are blocked pursuant to the order; or to be owned or controlled by, or to act or purport to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to the order.

While it currently applies to those who engage in any act—violent or nonviolent—against the government of Lebanon I am not comfortable that it will remain so. Nor is there any oversight to make sure. It certainly gives him broad sweeping powers that go beyond anything before.
 

Your email is sent in packets, yes, and the packets could, potentially, be sent through a foreign node, but that's very unlikely if both nodes are within the continental USA.

This is, I believe, beside the point, for technical reasons.

Frankly, there is no way to separate out the packets associated with a particular email connection, unless all nodes from which data could be transmitted into or out of the USA are tapped, and hardware is in place which allows picking out the packets associated with a particular connection.

Since this cannot be done without looking at every packet through the tapped node, if this bill passes, allowing any and all surveillance "directed" at a person overseas, the NSA could then install taps anywhere those packets might traverse -- and if there is a node anywhere on the internet through which international email is not transmitted, it would be a rare node -- and examine each and every packet through those nodes (to see if they were associated with that particular person).

Technically, this bill would open up the entire domestic internet to the NSA at the determination of the Attorney General.

The only thing that would keep the NSA from reading your email would be their honesty and good will. That and the unwillingness of the AG to authorize it.
 

The only thing that would keep the NSA from reading your email would be their honesty and good will. That and the unwillingness of the AG to authorize it.

Best deadpan delivery I've seen in quite a while.
 

This comment has been removed by the author.
 

Jim Clark said (8:00 PM) --
>>>>> Everyone agrees that foreign-to-foreign communications should be intercepted without a warrant no matter where the interception takes place. Nevertheless, surveillance of identified Americans in America should absolutely require a warrant. <<<<<<

As they would say in the Marlboro Filters Man ads, "almost everyone agrees." The following question is not a constitutional question but a question of fairness: Why is it assumed that US citizens and people inside the USA are more entitled to protection of privacy than aliens and people outside the USA? And what does this have to do with national security, since whether or not a communication is a threat to national security does not depend on the locations, citizenship, or US immigration status of the communicators, nor does it depend on whether or not the communication is electronic?

This may come as a surprise to people, but protection of privacy appears to be greater in Europe than in the USA. For example, a January 2006 news article said,

A fierce debate continued to rage in Germany's online community on Friday over a court ruling that forced the closure of Wikipedia's German language Web site for nearly two days this week. . . .

. . . ..The temporary injunction came after the parents of a German hacker sued the site for naming their son in an online encyclopedia entry. The hacker, who goes by the name of "Tron," was famous in the German hacker scene for his hacks, which included decrypting Pay TV and telephone cards and for developing plans for an encrypted telephone. After his death in 1999, articles and books were written about the man, whose real name is Boris F., and conspiracy theories began to brew that the hacker was murdered. Six years after his mysterious death -- which was officially ruled as suicide -- a major debate has broken out over "Tron's" privacy rights . . .

. . . the Berlin court has conceded that it may not have the legal authority to force the American site to remove the reference to Boris F.'s real name, which can be found on the US site. US privacy laws are far looser than those in Germany and would not allow restrictions to be placed on the publication of a deceased person's full name.
(emphasis added)

Also, blocking of IP addresses of commenters, which is common in the USA, is illegal in the UK and possibly elsewhere in Europe because IP addresses are considered to be confidential information there -- see here and here.
 

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