Balkinization  

Tuesday, August 07, 2007

When Does the Sun Set on Warrantless Surveillance?

Marty Lederman

I happen to have been in Iceland this year right around the summer solstice, when the sun never sets. Twilight in the middle of the night was somewhat haunting, spooky even.

Well, as several of our commentors have noted, the so-called six-month sunset provision of the "Protect America Act of 2007" is a bit of a ruse, because it's not clear the sun ever sets on the unchecked electronic surveillance of the Bush Administration. Although section 6(c) provides that the operative provisions of the Act "shall cease to have effect 180 days after the date of the enactment of this Act," i.e., on February 1, 2008, there is an express exception in section 6(d), which reads as follows:
AUTHORIZATIONS IN EFFECT.—Authorizations for the acquisition of foreign intelligence information pursuant to the amendments made by this Act, and directives issued pursuant to such authorizations, shall remain in effect until their expiration. Such acquisitions shall be governed by the applicable provisions of such amendments and shall not be deemed to constitute electronic surveillance as that term is defined in section 101(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(f)).
Thus, "acquisitions" authorized by Attorney General Gonzales will be permissible for one year, even if that period extends beyond the ostensible February 1, 2008 sunset date. I think it's fair to assume that the Attorney General will authorize a system of such acquisitions on or close to February 1, 2008, which will mean that the warrantless surveillance can continue until . . . February 1, 2009, or twelve days after the next President is sworn in.

Congress could, in theory, repeal section 6(d) if and when they enact a replacement statute. But it's safe to say this President would never sign a bill containing such a repeal. So it's likely the new surveillance will be in effect throughout the Bush Administration, even in the unlikely event that Congress lets the new Act "expire" on February 1, 2008.

Comments:

You say that like it's a bad thing to protect America, Marty.
 

I'm leaving the comments on for now, in hopes that people will correct me if I'm wrong in any respect about the Act (or about Iceland, for that matter). So, please, everyone, don't take the bait.
 

Well, I am here to correct you since I think you are wrong in this respect about the Act: warrantless surveillance during WAR is necessary to protect American lives. So is "torture or cruel treatment" (but you deleted the comments to that thread). For God's sake, man, it's a WAR!!!
 

I think your reading is correct, Marty. Here's my question: How precise or narrowly tailored does an "acquisition" have to be? When the AG authorizes such an acquisition, does that mean surveillance only against a particular target -- a person, even? Or can the AG authorize an acquisition of much more indefinite scope, like, targeting anyone we think might be a member of Al-Qaeda? If it's the former, then the 6(d) extension for authorizations prior to the sunset might not have that big an effect. If it's the latter, then yeah, it's open season until Bush leaves office.

Of course, I think it's open season anyway, regardless of what this law says, because Bush can just do what he wants and he knows there will never be time to hold him accountable for it.
 

Thus, "acquisitions" authorized by Attorney General Gonzales will be permissible for one year, even if that period extends beyond the ostensible February 1, 2008 sunset date.

Why one year?
 

SEC. 105B. (a) 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 . . .
 

Professor Lederman:

Thanks for the observation as to the true length of the sunset provision.

It makes perfect sense for the Dem Congress to kick this past the next elections and allow the voters to weigh in on whether the GOP or the Dem approach to national defense is preferable. The Dem Blue Dogs in normally red districts have made it clear where they believe their voters stand. The best the left Dem leadership could hope for from a minority position is to hope the 2008 elections swing their way.
 

Bart:

You don't say?! Blue Dog Dems in Red districts think that warrantless surveillance during WAR is necessary to protect American lives too?!
 

Marty also shut down the thread ("Jane Mayer on the Black Sites" below) and the "debate, in effect, about whether torture and cruel treatment should ever be lawful and, if so, against whom and under what circumstances." What's he so scared of? The First Amendment ain't going to bite . . .
 

I think you are correct, Prof, Lederman. It seems the dems are naively calculating they will avoid political attacks launched on them in '08 due to weakness on national defense, because the republicans cannot complain that the administration cannot surveil the terrorists. After all, any programs happen to go exactly as long as needed. then, assuming the dems win the '08 election (which seems to be the bet they are making - "don't cause any trouble now, and the country will surely vote for us in 15 months"), then they can let it die a silent death after the election, based on a theory that the American people would not support restricting the president and protecting privacy. of course, the polls show this is not the correct conclusion, but the dems are so afraid of a rhetorical showdown with the republicans, they'll simply avoid the fight. This is the worst of both worlds, but what else would one expect from the spineless and hapless dems.
 

My reading is the same: An authorization approved at the end of the six-month sunset period could last another year. I guess I am surprised that conclusion is not considered obvious. It seems more transparent than most of the language of the PAA.

FWIW, House Democratic leaders claim they will not wait for the six-month deadline to approach before taking up a permanent bill. The more significant political hurdles are the 60-vote threshold in the Senate, and the veto that Bush obviously will threaten for any bill not drafted verbatim in the White House.

Unfortunately, Congress is not very good at enacting serious legislation about anything except when under the gun, whether that be an impending recess or the urgency drummed up by the leak about the FISA court ruling.

Bush has invented a remarkable game of chicken that seems to work, in spite of its irrationality: If you pass a bill that solves the immediate crisis but I have other objections to, I'll veto the solution and then our country will be in immediate danger. And it will be your fault that I put the country in danger!
 

JaO:

Isn't the bank robber similarly held responsible for a police shootout in which an officer shoots at the robber but kills an innocent bystander by mistake? It's not the President's fault that some in Congress refused to do their job and voted against the "Protect America Act of 2007". Just wait until you see THOSE campaign ads.
 

"It is always an encouraging sign when people are rendered self-conscious and are forced to examine the basis of their ideals. The demand that they explain themselves to skeptics always makes for clarity. When the older generation is put on the defensive, it must first discover what convictions it has, and then sharpen them to their finest point in order to present them convincingly. There are always too many unanswered things in the world, a and for a person or class to have to scurry about and find reasons for its prejudices is about as healthy an exercise as one could wish for either of them... This always indicates that something has begun to slide, that the world is no longer as secure as it was, that obvious truths are no longer obvious, that the world has begun to bristle with question marks"
Randolph Bourne.

It's time to defend seriously what we take for granted. And I'll say again as always that its not enough to defend "reason" -since it will always fail- and that the preference for rule of law is based not on reason but the terror of that failure.
If you want to argue against torture you must not be afraid of talking about it. Sure Charles is a schmuck, but considering how much torture has been part and parcel of US foreign policy for decades the refusal to discuss it in polite company smacks of hypocrisy.

It's not enough to say that you could smash Charles and his arguments like a bug, it's time to do it. And I'm sad to say there are not enough people I'm reading these days who know enough to do it well or cleanly.
He's not the only symptom of the disease.
 

charles:

You and I agree on the substance of many issues raised here. However, I have to ask you to keep your posts polite and and on subject even when our ideological opponents do not. If Professor Lederman is going to shut down the comments section of his threads, we conservatives/libertarians should not be the ones providing a pretext to do so.

If you feel the irresistible need to get in digs or taunts for real or imagined hypocrisies, please use the email and not this forum.
 

D. Ghirlandaio:

I was not the one who deleted the comments on the "Jane Mayer" torture thread. Someone had asked me to outline the costs vs. benefits of torture last night -- which I tried to do (maybe not "clearly enough" for you -- but, this morning, all of the comments have simply disappeared

Bart:

I have ALWAYS been polite (and never resort to ad hominem attacks) but, other than that, we'll have to agree to disagree on how best to address the argument(s) raised by libs here.
 

The problem D. Ghirlandaio is that there is no end to it. My usual blogs are the science blogs like Deltiod or Pharyngula and a few others. I really appreciate this blog because of it's concise, clear language. It helps me to understand a difficult area that I'm not accustomed to.

The trolls here don't strike me as any different than the creationist or climate change denier trolls on the science blogs. There is no amount of reasoning or argument that will ever convince them. They will never change or modify their positions due to any evidence that you could ever present.

I remember reading an article in the Smithsonian years ago that recounted a debate between a flat earther and some scientist who tried time and again to reason with him. Eventually their debate got to a point where the scientist set up a telescope in such a way that the curvature of the earth was visible to the eye. Did this end the debate? Of course not. The flat earther simply rationalized away what was before his very eyes.

You can expect nothing different from these trolls. I would support some form of moderation or a sign-in specific to this blog.
 

"My usual blogs are the science blogs like Deltiod or Pharyngula and a few others."

A fine example.
If those are your blogs than you miss my point. PZ Myers is a pedant and a fool. He defends the rule of reason against the rule of mysticism, but in doing so he attacks the rule of precedent. It's throwing the baby out with the bathwater.

The importance of the rule of law is that is the rule not of reason but of institution, and as such it is conservative. There is a tension in that that the pure defense of "reason" and idealism do not understand. I should not have to explain that on a law blog. But I do again and again and again.

Rumsfeld is an atheist.
 

Brenda and Charles between them define the problem perfectly.
The argument that defeats Charles and his defense of torture has to defeat Posner and his defense of same. Brenda's arguments are not the ones to do it: they share precisely the foundation that needs to be undermined. Collapse Posner's logic and Brenda's falls as well

I'm speaking in shorthand but it should be clear enough to readers of Balkinization.
 

Bush has invented a remarkable game of chicken that seems to work, in spite of its irrationality: If you pass a bill that solves the immediate crisis but I have other objections to, I'll veto the solution and then our country will be in immediate danger. And it will be your fault that I put the country in danger!

The game works because (1) the Democrats cannot, or will not, trouble to explain themselves, and (2) the media (network, CNN, press) cannot, or will not, provide sufficient depth of coverage to allow any non-soundbite explanation to be presented.

In the internet era, there's less excuse than ever for the Dems to roll over. They should be in Bush's face: "we thought the issue was keeping America safe, but Bush wants to play politics and immunize the guilty."

The ineptitude, or nonexistence, of the Dem spin machine is one of the 7 wonders of American politics.
 

Anderson:

Too bad more of "them" watch something like 24 on an average week than all the news outlets combined. Please, go ahead and try to label as "criminals" the real-life heros PROTECTING AMERICAN LIVES who maybe had to break a law here or there to do it. I wish you could get free coverage 24/7 for that.
 

D. Ghirlandaio said...
The importance of the rule of law is that is the rule not of reason but of institution, and as such it is conservative.

Science also has it's institutions and it is also conservative in the sense that it keeps what works and discards what does not. And it's surprising to see you toss out reason in favor of institution.

I'm in favor of getting the baby clean and to do that I need both the baby and the water.

Your arrogance BTW is quite unbecoming and anyway I'm not a regular reader so yeah, some things are bound to slip by.
 

My comment above about what was "not considered obvious" seems condescending, and I did not intend it that way. Apologies.

The point I was trying to make is that overall, the more closely I analyze this legislation, the more hidden gotchas I find. Its literal effects are often not obvious or transparent.
 

Is it just me, or is it increasingly difficult to take partisan political analysis seriously. If ever I was inclined to look first at class lines it would be in the wake of the so-called opposition party complicity in everything from the original AUMF to the so-called "patriot" act to the MCA to this latest dereliction of duty. Don't get me wrong, Marx was the kind of dope who would divide by zero (e.g., his "formula" for capitalism seems always and only to show a profit) but that doesn't mean class observations are misplaced.

The sun will set on warrantless surveillance when, if, and only if such makes bigger bucks for the folks making the big bucks doing business as usual in the national surveillance state, logical heir to the military- intelligence- industrial complex. I offer as evidence the circus that accompanied the re-up of the so-called patriot act, "shot down" in December and made permanent the next spring. Feh.

Stipulating that even with the Dems firmly back in control of the White House and the Congress they have no real motivation to fix the damage done by PNAC, what do we the people do about it? That's the question which needs answering.
 

Vote third party . . .
 

My apologies Brenda, but I can't stand P.Z.Myers.
I have no patience with people who argue with priests about their faith. It's a waste of time. The faithful put moral logic before numerical logic. And PZ Myers has no interest in moral logic as independent from science.

Convention in law means that the under some circumstances the guilty may go free. There is no parallel in science where calculations are thrown out even though they are correct.
That specifically is what needs to be defended and arguments from reason by comparison are arguments from authority.
 

I understand. My point was limited to comments, what Meyers or anyone chooses to do with their blog is up to them. Scientists held your belief a long time and simply ignored creationists and their ilk. That was a mistake and most now realize that they need to respond. There needs to be balance. We need good strong criticism backed up with legislation.

"There is no parallel in science where calculations are thrown out even though they are correct."

I'm not quite sure I know what you mean as the calculations, correct or not, in support of a failed theory are indeed thrown out. And there are certainly plenty of failed cosmologies littering history. I was just constructing what is probably a silly analogy. Scientific method is to the body of accumulated knowledge as bathwater is to the baby. In law wouldn't that be: Socratic debate washes clean the body of Law?

"arguments from reason by comparison are arguments from authority."

Perhaps this highlights our cultural divide because this makes absolutely no sense to me. BTW, I am not a scientist. Just a layperson with a strong interest and background in the sciences.
 

I'd rather be governed by leaders who rely on the public interpretation of words on a page then by those who claim they have reason and logic on their side.

The government of experts is not the government of the people and the rule of experts is not the rule of law. Technocracy is not democracy. I defend the latter. Posner and those like him do not. And there are many people who are closer to him than they are willing to admit.
 

One more time, sorry.

In law the accused may go free if the rules are not followed correctly, even if they known to be guilty of the crime. Verifiable, relevant and even conclusive facts may be rendered "taboo" and therefore irrelevant to the court simply because they would set a "bad" or "dangerous" precedent.
Bizarre? Archaic? And absolutely necessary.
 

I'm not so sure about the "absolutely necessary" part. But, don't worry about it, Brenda -- there is no amount of reasoning or argument that will ever convince D.
 

"I'm not so sure about the "absolutely necessary" part."

That's why they ignore you.
 

And, I thought you were warned not to "take the bait" as well?
 

For anyone NOT scared to take a comprehensive look at both sides of the torture argument, with the unavoidable conclusion that some system of obtaining a judicial warrant is probably the best possible outcome:

http://law.bepress.com/cgi/viewcontent.cgi?article=4581&context=expresso
 

@Brenda, Welcome. I have to read between the lines as I see your posts and D. Ghirlandaio, but not those of our most prolific trolls nor folks whose primary contributions are responses to said trolls; a killfile script handles that for me.

Religion can state as an article of faith that Pi = 3, or it can arrive there by means of all manner of tortured, tortuous logic and reasoning. Or Congress can so legislate based on similarly tortured, tortuous (and perhaps even tortious) logic and reasoning. That will not change the empirical reality that if you take the most perfectly round cylinder you can find, measure it's circumference, divide that by it's diameter, the result will be more like 3.14. Whether it is a good or bad thing that Law can ignore empirically reproducible results in pursuit of justice remains arguable. But there is no good science that could set aside such results. Can we three agree on this much and start from there to tie back in to the topic of the post?

Peace.
 

Bush has invented a remarkable game of chicken that seems to work, in spite of its irrationality: If you pass a bill that solves the immediate crisis but I have other objections to, I'll veto the solution and then our country will be in immediate danger. And it will be your fault that I put the country in danger!

Exactly right! What the Democrats should have done was pass their own bill and then scream at the tops of their lungs that Bush would endanger national security if he vetoed it and that if the terrorists attacked it would be his fault. Two can play at that game, and it is long past time they did.
 

It seems that even more than in the original FISA, there is much within the PAA amendment that is hidden in plain sight. And much of what is there may be a distraction.

Most of the actual work of the new amendment is done by the new section 105A added to FISA, which declares flatly, "Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States."

Once that declaration is in force, the bulk of the rest is about the "additional procedure" added to FISA, which the DNI and AG "may" employ to authorize certain surveillance under a set of procedures it devises. In turn, under that authorization, the DNI and AG "may direct" telecoms, ISPs and other service providers to facilitate it.

Note that this is entirely optional! The government is not required to invoke it at all, or to apply it to all cases. And the key, operative declaration in 105A is not tied to it. The only real reason to use this "additional procedure" is to compel cooperation from the service providers.

The procedure also shields the providers from civil action, but it may well be that they can get all the CYA they need under a certification described in long-existing law, 18 USC 2511(2)(a)(ii)(b). Such a certification would state "that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required ..."

Orin Kerr has suggested that the certification described by 18 USC 2511(2)(a)(ii)(b) was being executed for telecoms already, to support the TSP or its undisclosed but associated activities. (I disagree with Orin's speculation that this very document was what Gonzales carried to Ashcroft's hospital room, because I don't think that is consistent with Comey's narrative. But Orin could well be correct that DOJ was construing this certification to apply to the program in question.)

The only effective difference I can see between this certification, and that described in the optional new "additional procedure" recently grafted into FISA, is that the optional procedure actually compels telecoms and ISPs to cooperate. We should remember that the telecoms reportedly cooperated with the TSP voluntarily all along. They don't need their arms twisted; they just want their asses covered.

Now, much attention is being paid to the new procedure in FISA. If it is employed, there at least is skeletal language about minimization procedures, and there is at least a definition of "foreign intelligence information." I think that language itself has loopholes, and the minimization falls far short of the process required for a FISA court order, but at least it is something. However, if the executive avoids invoking even the optional new FISA procedure, simply finding by fiat that the intercept does not constitute "electronic surveillance," nothing requires any minimization at all. The surveillance would be totally unregulated and undefined, just as a local wiretap in Moscow or Islamabad would be.
 

JaO:

The only effective difference I can see between this certification, and that described in the optional new "additional procedure" recently grafted into FISA, is that the optional procedure actually compels telecoms and ISPs to cooperate. We should remember that the telecoms reportedly cooperated with the TSP voluntarily all along. They don't need their arms twisted; they just want their asses covered.

One reason may be that while some of the bigger telecoms did assist, others may not have, so the gummint wanted compulsory compliance. To get everything, you need to cover all potential traffic paths, and AT&T was only handling maybe a third, and "on-net" stuff may not have even got near their routers.

Cheers,
 

I'm leaving the comments on for now, in hopes that people will correct me if I'm wrong in any respect about the Act (or about Iceland, for that matter). So, please, everyone, don't take the bait.

If it's technically possible to preserve the comments without deleting all of them, that would be very much appreciated. While not every comment has enduring value (said with deliberate understatement), some -- like that of JaO just above -- do. It would be good if we could refer back to them if needed.
 

JaO said: Most of the actual work of the new amendment is done by the new section 105A added to FISA, which declares flatly, "Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States."

Does this provision violate the 4th A? There is no requirement of reasonable suspicion that the target of surveillance is a terrorist or otherwise a legit threat to national security (if that were the case, the surveillance might be "reasonable" and arguably subject to one of the "special needs" exceptions to the warrant requirement). So how does surveillance not violate the 4A rights of US citizens who happen to be talking to a friend in a foreign country? Am I missing something?
 

Arne, JAO, can you enlighten a layperson. The new law says no warrant is required for "surveillance directed at a person reasonably believed to be located outside of the United States."

Obviously this would allow warrantless surveillance of at least some of our international calls. Does this apply only if the wiretap is "directed at" a specific "person" outside the US, or are all international calls fair game now? Or is this one of those thorny interpretations left to the courts?
 

Arne,

Yes, the new optional procedure is a new tool in the government's toolbox. I think might be usefully directed not at the major telecoms, but at other players -- for example, smaller ISPs, colleges, employers, and other assorted email hosts.

But I think that might be on the margin. I'm betting that the big boys have played along if they got the existing CYA certifications from DOJ to protect them from lawsuits.
 

Enlightened Layperson,

The way I read the new amendment, there does not have to be a specified or identified target abroad, only a reasonable belief that the person at whom the surveillance is "directed" is really abroad. This is not the same thing as a "target," which is a term generally applied in a warrant situation.

As for your question about whether "all international calls fair game now," I think the answer depends in part on whether the government uses the optional new procedure or not.

If so, there at least is language defining "foreign intelligence information" that applies within FISA. See 50 USC 1801(e). That language, which would be interpreted only by the executive, restricts the subject matter to such topics as terrorism, foreign powers, defense, security and foreign affairs.

If those procedures are not used, AFAIK, there is no statutory definition of "foreign intelligence information" because FISA doesn't apply at all.

Others may read the amendment differently, of course, and I could be wrong.
 

D. Ghirlandaio - If I gave the impression that I favored a technocracy I'm sorry, that wasn't my intent. I just think that if you are going to form science policy you should consult with actual scientists and not a science fiction writer. I think you would agree and we've had more of a misunderstanding than anything. But we are also waayyyy off topic so I'll leave it at that.
 

To me Marty's post leads to another intriguing question. Can a free democratic society, in this day and age, survive terrorism? Or will it be forced to become a shadow of freedom, regardless of who is in power? This comes to mind in part because, as those presenting other viewpoints insist, giving up those freedoms is necessary in order to preserve the society that values freedom against the threat of terrorism. And, to be certain, that argument which states that liberties and rights must be cribbed is compelling and appeals to the overt logistics of the present situation. And it seems not wrong either to speculate that regardless of who is in power, the slide away from freedom and liberty may be unavoidable. Just consider the rhetoric of the national debate. It seems fixed on how much freedom to give up - not for how long.

I'm not saying that giving up freedoms, liberties, and rights won't make the nation safer against terrorists, only that given what they need to do in order to keep us in a state of threat its hard to ever see a time when a simple call to national security won't successfully suspend any given right, freedom, or liberty.

Given that terrorists need only exert resources small when compared to what we must expend in such a conflict, it is hard to envision a day when they no longer present a reason to continue to keep the liberties which define the character of this country in suspension. It would seem we have no choice in order to avoid the most nightmarish of alternatives, but to surrender rights, liberties, and freedoms. And, to get us to surrender more, terrorists need only muster one person appropriately equipped and well placed - an attack need not even be successfully carried out. One person carrying a suitcase of material, or demonstrably intending to do so, can present a dire threat to hundreds of thousands and a fresh new round of needed restrictions. The onus is weighted more that a little disproportionately on the defense. Our opponent need not even expend the actual cost of acquiring such materials - only credibly appear to be doing so.

While the majority of the rank and file of our opponents may not see such a thing as a success, its entirely possible if not likely that their leadership does understand what they can accomplish with only a relatively small contingent of willing pawns. Perhaps even more clever on their part that the harder we fight, the easier the job of replenishing stores of new pawns.

Democracy has fallen in the face of similar threats before, and who are we to think it can't happen to us? Is terrorism the one thing a free democratic society can't survive?
 

Adam,

Sorry I don't have time right now to include a lot of links, but if your browse and search Marty's posts here, and Orin Kerr's at Volokh.com, you will find that the Fourth Amendment question you raise is at best unsettled. At least that is my best objective summary.
 

Bitswatter,

Democracy has also survived terrorism. Don't forget that there was quite a bit of it in Western Europe during the '70's, that Britain had the IRA setting off bombs in marketplaces, etc. Obviously none of these attacks were as large or spectacular as 9-11, but they were much more frequent than jihadist attacks on us.

Obviously democracy can panic and overreact to terrorism -- but it doesn't have to. (Surely if this blog has one theme, it is that). Only if terrorism gets really out of hand does defeating it become incompatible with democracy, and we are nowhere near there.

Terrorism only gets really out of hand when there is a large enough group of angry, alienated people who no longer see the whole system as legitimate. And in that case, democracy is in serious trouble anyhow. Terrorism is merely the symptom, not the disease.
 

JaO:

You said Once that declaration [105A] is in force, the bulk of the rest is about the "additional procedure" added to FISA, which the DNI and AG "may" employ to authorize certain surveillance under a set of procedures it devises. This is worth sorting out.

Section 105B opens with:

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 if the Director of National Intelligence and the Attorney General determine, based on the information provided to them, that—

The determination speaks to, among other things, minimization and a "significant" intelligence gathering purpose. A certificate setting out the determinations would be issued and remain under seal.

Conceivably a foreign-to-foreign conversation that could be tapped without making any of the telecoms assist would not need to run through 105B. But it doesn't seem the administration plans on doing this. Under 105C, the AG is required to submit to the FISA court, within 120 days, for deferential review, "the procedures by which the Government determines that acquisitions conducted pursuant to section 105B do not constitute electronic surveillance." The procedures are probably sitting in someone's desk drawer. In fact they may only need to be resubmitted. Also, the statute contemplates no acquisitions exempted under 105A that would be conducted except pursuant to 105B.

That may not mean there aren't any. But if the administration just put us through all this trouble to enact a law it's planning not to use, we've got a lot more than civil liberties to worry about.
 

"To me Marty's post leads to another intriguing question. Can a free democratic society, in this day and age, survive terrorism?"

Brenda, we never went off topic. The question above is the important one and the answer, quite obviously, is yes. But can a democratic society survive terrorism without sticking with democratic principles? The answer to that is no. And were democratic principles the cause of the terrorism that made this question necessary?
Again, no.

Also, without pushing the point too much, I'll address the following to Mark Field who I think directed a little snark my way,
I think you and others- the experts- are defending the trees, but not the forest.
But it's the forest that needs defending.
 


"Senator Salazar continues to be concerned about the lack of civil liberty protections in the program, but he was unwilling to let the nation go without a surveillance program for the next six months,"


Does anyone know what the freshman Senator's spokesperson is referring to, here?

I have seen references elsewhere, and from Democrats, suggesting that this week's FISA amendment merely extends authorization for a program that was already within the FISA statute, but for which authorization was set to expire.

Am I wrong in surmising that this is, in fact, a crock? That it is, in fact, the White House party line about warrantless wiretapping that in fact, all along, violated FISA?
 

Bitswapper: Democracy has fallen in the face of similar threats before, and who are we to think it can't happen to us? Is terrorism the one thing a free democratic society can't survive?

I think it might be useful to separate the political system from the economic aspect. Terrorism, guerrilla tactics, these things are born of economic (translated as "martial") disparity between attacker and attacked. No one mentions the Boston Tea Party and nine-one-one in the same breath, but maybe we should once in a while.

Similarly, "democracy" is not the same as "free". The people can vote away their freedoms, and the tyranny of the majority was as feared by the founders of this nation as was any other form of tyranny.

What a free society, regardless actual political operations, cannot survive is a confluence of interests which are willing to sacrifice or undermine its freedoms. The corporatocracy that is America today has no real stake in citizen freedoms, save freedom to choose between vendors, to choose Wal-Mart over CostCo. But that corporatocracy is not monolithic. Our current political leaders belong to that segment of the corporatocracy beholden to military and intelligence pursuits. These folks profit mightily from the occasional terrorist threat. The consumer oriented portions of the corporatocracy don't much care one way or another, so long as they can show another two-hundred-and-thirty-three million served.

Is terrorism the one thing a free democratic society can't survive? If the world ever produces one we might be able to find out. Meanwhile, here at home, that's not the reality of our situation. The events of nine-one-one never for a moment presented a legitimate existential threat to the nation and thus never legitimately justified the long, steady campaign against citizen freedoms. But that doesn't really matter so long as the voters are foolish enough to let Fox or CNN or any other corporate controlled outlet do their thinking for them. There's a reason it's called "programming", and the handwriting has been on the wall for this experiment called America for quite some time.

There is no reason to expect the sun to set on warrantless surveillance. There is no reason to expect habeas to be restored, nor posse comitatus, nor to see the so-called "patriot" act repealed, nor any of the other myriad depredations visited upon freedom in the name of the "war" on terror. None of these things was necessary, nor truly helpful to the cause of reducing the use of terror/guerrilla tactics. Ah, but what they've done for certain portfolios...
 

occasional observer,

Yes, the optional 105B procedure includes some skeletal language about "minimization," and about a "significant purpose" being for "foreign intelligence information" as defined elsewhere within the FISA statute. (There also are loopholes within that language, but that is the subject for another post.)

This is in contrast to what would happen if the optional procedure is not invoked because the executive just relies purely on its own reasonable belief that the focus of the surveillance is abroad. In such a situation, none of FISA -- including any minimization whatsoever and FISA's definition of "foreign surveillance information" -- even applies. The surveillance would be undefined and unregulated, just as whatever surveillance we now conduct locally in Moscow is undefined by FISA and unregulated.

You emphasize the word "required" by boldfacing it within the the details of the language about optional procedure. Yes, if the DNI and AG make such a broad authorization, they are required to submit the procedure for deferential review. So what? The government is not required exclusively to employ this procedure to make its finding under 105A that the it "reasonably believes" the acquisition is directed abroad.

You say, "Also, the statute contemplates no acquisitions exempted under 105A that would be conducted except pursuant to 105B."

The statute does not have to "contemplate" such acquisitions explicitly. It need only omit an explict link requiring the reasonable belief of 105A to be based on the "additional procedure" of 105B. It pointedly omits that link. The executive is free to "reasonably believe" what it wants, based on whatever methodology it chooses.

Further, there is second step within 105B's general procedure, even after the optional authorization has been invoked. The DNI and AG "may direct" specific service providers actually to facilitate the acquisition. They are not required to do so, and it is not in their interest to do so unless it is necessary to compel such cooperation.

To be clear, I think the DNI and AG probably will invoke the first step, which is a general authorization. It also likely will invoke the second step, the actual directives, sometimes. The reason is that this procedure can actually expand the scope of warrantless acquisitions beyond what has been possible before -- to all ISPs and various email hosts such as Google/Yahoo/AOL, colleges, employers, etc. Some of these entities would only cooperate under compulsion.

But so far as big telecoms go, it is only necessary for the government to secure voluntary cooperation from a handful who control the big switches. Reportedly they have cooperated voluntarily for years since 9/11, so it is a good bet that they would do so again so long as they are protected from liability.

You say, "if the administration just put us through all this trouble to enact a law it's planning not to use, we've got a lot more than civil liberties to worry about."

Welcome to the world of secret law and secret courts. The public language of FISA has always been crafted to obfuscate the drafters' whole intent. This latest amendment skillfully extends that tradition.
 

The obligation to submit procedures to the FISA court is not triggered by a decision to use the procedures under 105B or any other condition precedent:

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. The procedures submitted pursuant to this section shall be updated and submitted to the Court on an annual basis.

There's no further qualification. The bold phrasing assumes, moreover, that these procedures just are the way in which the DNI and AG are to determine that a certain acquisition is 105A-exempt. I would dare say in fact that they constitute, make sense of, reasonable belief in 105A's phrase, "surveillance directed at a person reasonably believed to be located outside of the United States."

Ground-breaking contract law, reads in all kinds of conditions precedent to obligations to perform that aren't in the words. It can invoke general practices or a particular course of dealing between the parties by virtue of which an extrinsic criterion of reasonableness is read into legislation. Granted, our Attorney General has uttered a view about habeas that was worth uttering only if in his view the Suspension Clause could be a nullity for failure of a condition precedent. And similar ghosts seem to haunt FISA in minds within the WH and OVP.

Granted, too, we lack a legislative history for the statute. This might be a problem but for the fact that these words were handed down by the executive. Granted, that didn't stop Bush when he issued his signing statement after reaching a compromise with McCain on torture. Then again there are all those ghosts. But given how this legislation was "sold" to Congress, given the claim that the executive would be crippled without these very words, the question "What were you thinking?" would loom large, even for this administration, which seems to have acknowledged on some level that it got in over its head with its inherent powers/AUMF rationales and needs FISC to legitimate its actions.

At a certain point – and I think we're there – Bush cannot play Humpty Dumpty with Congress. Words must mean what they say, and even a commander guy must view them as master. That said, if he issued a signing statement for this law, it sure would be good to know. (I assume he hasn't, but only because we haven't heard of one.)
 

I'll address the following to Mark Field who I think directed a little snark my way,
I think you and others- the experts- are defending the trees, but not the forest.
But it's the forest that needs defending.


I certainly didn't intend any snark your way. Apologies to you or others who thought I was referring to them.

Democracy has also survived terrorism. Don't forget that there was quite a bit of it in Western Europe during the '70's, that Britain had the IRA setting off bombs in marketplaces, etc.

There were also anarchist bombings and assassinations throughout the Western world between 1870-1914. And, of course, we long had our own homegrown terrorists in the KKK and lynch mobs. While I can't say democracy survived very well in the latter case, or that we managed without repression in the former case, we have ended up with a more open system than we had in 1870.
 

occasional observer: At a certain point ... Words must mean what they say

My point exactly. And the words you quote apply to 105B, not to 105A.

If 105A added something like my own boldfaced insert here --

Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States as determined by the additional procedure described in section 105B.

-- that would be a different matter. But no such words exist in the statute. You are assuming an implied qualifier limiting 105A, but by the plain text of 105A, it stands alone as a "clarification" to FISA's existing language.

I have no doubt that David Addington and the administration lawyers who follow his lead will adopt the reading the grants the executive maximum authority. And Addington will not reach, as you do, to infer any such limits.
 

JaO,

There's a familiar question in drafting: Do the words get you there? For all you say against my interpretation, you can't point to any words that authorize surveillance under 105A other than through 105B.

You might seize on the fact that the procedures mentioned in 105C are for surveillance pursuant to 105B. But that is simply good drafting; any legislation worth its salt would tie sections in this way. You might point out that 105A does not say, "provided, however, that no acquisitions may be made except through 105B using the procedures of 105C." But, to restate, if Congress (and Bush) understood the 105B option merely as one of two options, it would have tied 105C's obligation to present procedures to the FISC to that election. That they didn't shows what Congress understood: the procedures are the sole means by which 105A's exemption can be implemented. No doubt they also had FISA's exclusivity provision in mind.

And, if it need be said, you are here under the contra proferendum rule, since these are the administration's words. That is what passes as "legislative history" here.

To step back, it needs saying that 105A by its terms does not simply clarify an obvious limit to FISA given the structure of FISA as a whole. Quite the contrary: it is sure to pick up domestic calls and emails, intercepts that FISA was and still is designed to control (though whether it still does so is highly dubious). This, too, counts against your reading.

And it's no small irony that the administration asked for it. Feinstein's "foreign-to-foreign" exemption, which it rejected, might conceivably have been self-executing in the way you suppose: it dealt with a technological glitch – the one you've pointed out – and lifted the glitch from the wider regime. 105A is an altogether different animal. It cuts into the domain of domestic talk. The flip side of it is that the PAA's overly generous carve-out was granted subject to the procedures of 105B and C. If this was not the bargain struck, I fail to see what this law is doing.

As for David Addington, I have no doubt he would term my interpretation a "reach." To this I would say, "You're seizing on weasel words, and being no more of a pussy than you, let's get down to the real question: Is FISA itself is an overreach?" And I'd then proceed to rub his nose in his own kitty litter.

Yesterday, on "To the Point," Jack Balkin had an interesting exchange with Robert Turner of the University of Virginia's Center for National Security Law. What emerged was that Turner's view made sense only if FISA was unconstitutional, something he's denied.

The presidency – never mind this President – really can't have it both ways forever. Argument in the alternative does come to an end. Either it (or he) relies on the AUMF in confused tandem with grandiose notions of executive power and tells Congress where to go, or admits that, having almost lost a contingent of employees at DOJ or the FBI, and having ticked off a secret court hand-picked by friendly forces to do its bidding – it can't function in our republic as now constituted without legislative authorization.

It can fantasize all it wants about a "constitution in exile," dream all it lies about its platonic guardians' prerogatives. But coming to Congress – even in the bullying way in which this administration did – is coming hat in hand. And if there is a silver lining around this dark cloud – if there's any glimmer on the horizons it seems to overlap – it's that the Bush administration has seen that there are limits to what it can actually do.
 

occasional observer: For all you say against my interpretation, you can't point to any words that authorize surveillance under 105A other than through 105B.

I don't have to, and neither does David Addington. The executive has inherent authority to conduct surveillance overseas -- which no one disputes, not even the original authors of FISA. The act merely regulates a certain class of acquisitions occurring within FISA's scope, which is limited at its core by its definition of "electronic surveillance." It is that core definition that 105A purports to clarify. (That is the form that 105A takes -- it is not an "authorization" but a "clarification" of existing definitions.)

Now under this new amendment, suppose the government does propose a 105B authorization covering email hosts, and drafts a methodology to determine whether emails stored on the host's servers are "reasonably believed" to concern a person abroad. (This actually is not a trivial matter. The geographic location of the senders and receivers of emails is not always discernable from the stored headers.) It is in the interest of the government to draft this method under 105B and submit it for deferential review under 105C because not all email hosts -- they are legion -- would provide access to this data without compulsory process. The government wants to be able to serve them with a "directive" under 105B, which is easier than getting a court order.

This is one technology and one kind of facts, and the procedure would be specific to that email-host technology and those facts.

But suppose the government elects not to draft a different process for intercepting packets of IP and digitized voice data passing through major communications switches at the edge of the networks in New Jersey and California, just before the fiber-optic cables dive under the ocean. That is a completely different technology, which would require a completely different methodology. The government does not draft a 105B/105C procedure to cover this technology and scenario, and those sections do not require the government to do so. It is not in the government's interest to do so, because the telecoms who control those switches are willing voluntarily to provide the NSA access to those switches.

However, section 105A's "clarification" of FISA's core definition still applies across the board.

What in this statute prevents government officials from forming an opinion under 105A that acquisition of the packets to/from the international side of the switch is "reasonably believed" to be "directed at" parties overseas?

Nothing.
 

JaO,

To answer the points roughly in the order in which they come up:

1. Actually you do have to find words to counter those I cited. It falls too short of serious to point to a clause in disregard of its context and the circumstances and statutory backdrop of its enactment. Yes, language counts – all of it.

2. That Addington would feel no such need says more about him than about the statute. Of course he thinks the president has "inherent authority." But that attitude makes a mockery of the exercise we've been having. If he's right he needn't need weasel words.

3. You still owe an explanation why, after pleading with Congress for this legislation in the circumstances I sketched, the unitary executive (of which Addington may be the brains but is still a mere organ) hasn't conceded that it needs congressional authority to exercise the power it wants under 105. That's more than enough to sweep in B and C on a judicious reading. You, and no doubt they, still want it both ways.

4. This, if I may say, makes our law a mockery of itself. The administration, to the degree it still reflects thinking like this, lacks the courage of its convictions. A drugstore totalitarian does one thing and says another. He'll twist words in secret memos rather than having them changed publicly. This is one of the hallmarks of the Bush administration. Yet it's one thing for a President to say he doesn't like a bill Congress passed over its veto. It's another for him to to issue a signing statement rather than veto. Here we reach the pinnacle of chutzpah. I mentioned "contra proferendum" with this spectrum in mind. They can't hide behind "maybe it just means this." They wrote the damned thing.

5. Suppose there are all these "completely different" technologies, say, as many as there are spy programs in the mind of Alberto Gonzales, and that 105A was for certain of these technologies and B and C for the rest -- this being the dark secret that the uninitiated must never know. Do you really think any of the "volunteer telecom" would sign up with the administration under 105A taken alone? From their standpoint it's bad enough that this law didn't immunize them for past infringements. They need more of this with the B/C mechanism in place? You're trying to fit too many into your bubble, which has already burst.

6. Nothing prevents government officials from forming the opinions they want, not least in this administration. That is the first lesson one learns about it. You can't legislate reasonableness. Yet the reasonableness standard is objective. Recognizing this, Congress instituted a mechanism – admittedly lame – to give reason half a chance.

7. As for "directed at," I've said it elsewhere: anyone who has hopes of finding direction in what will transpire could chart the path of a bull through a china shop.
 

occasional observer,

You seem to mistake me for a proponent of this legislation or an ally of the administration on FISA issues. Nothing could be further from the truth.

But I think you do have an fundamental misunderstanding of the legislative history of FISA and foreign surveillance itself. There is no serious debate over whether presidents possess inherent power to conduct surveillance abroad. And no one -- certainly not the authors of FISA itself -- has argued that Congress must grant affirmative authority to the president for such surveillance to occur.

Before FISA was enacted, presidents had authority unfettered by statute to conduct such surveillance. In 1978, Congress determined to regulate a subset of that surveillance -- when it lapped into the United States. But FISA nowhere "authorizes" the president to conduct surveillance abroad, such as in Moscow. It does not have to because the president already possesses that inherent authority, and the Moscow scenario is simply beyond FISA's scope. If FISA were repealed completely, he would still have that same authority.

The issue today is FISA's own definition of its scope of what it regulates. If surveillance is outside that scope and is outside the country, there is no regulation whatsoever. That is why section 105A, by declaring certain surveillance activity to be outside the scope of the whole statute, is so fundamental and far-reaching. Presidents can conduct such surveillance under their inherent authority, and FISA now cannot be construed to regulate it.
 

I don't take you for a proponent of this law. Nor do I assume you to be a Bushie. From what you say I doubt you think it was needed and would say this regardless of who was president. In contrast, you take me for a rank politico out to vindicate Bush hatred. I'd note that Republicans did this on the House floor and had to be stood corrected by John Conyers. In his and my view there's life after Bush.

You also seem to take me for an ignoramus. Though you appear not to know the full history, it's not my style to condescend, so I'll assume you're just feigning ignorance.

The risk that a president's constitutional powers of surveillance carry a risk of domestic flowback undermining privacy interests has long been understood and managed through legislative reforms. These started with laws that kept our ever-watchful government from opening our mail on a whim, which it once thought it could do. FISA is the apex of this effort.

Your assumptions about government spies looking at 105A and thinking, "Glad we cleared that up," then go on its merry way, formulating unchecked "reasonable beliefs" -- without so much as a concern about who's on the domestic end -- blinks away half the history, the half about the flowback effect. The half you'd just as soon forget. FISA's new 105 is just a new protection, such as it is -- all of it.

Nice try. but no cigar for you.
 

occasional observer,

We have taken this conversation about as far as it can go. I certainly don't like this act, and I can see you don't either. But I think your sputtering at me is just shooting the messenger.

You really want to believe that the effect of the bill is not as bad as I think it is. While you have bought into the administration spin that sections 105B and 105C are significant safeguards that impose meaningful limits on the government, I believe these provisions are not that at all. Rather, these sections really grant whole new authorities to the DNI and AG to reach out and grab data from ISPs, email hosts and other service providers without court orders, while the prior arrangement with the big telecoms that was the foundation for the "TSP" will be probably be intact and exempted from regulation entirely.
 

@OO & JaO: Your disagreement seems to me exactly the sort of thing Professor Lederman is looking for, substantive interpretation conundrums to be solved. May I take note that your exchange proves there is plenty of room for productive dialectic amongst those "against this act"? Shake hands, if I may make a suggestion, and each privately request Professor Lederman offer his notion of your respective arguments? Ask him his opinion as to whether 105B & C are safeguards or wide open doors or arguably both or something else entirely?

Peace.
 

The killfile still doesn't work in the "preview your comment" window, sadly. But if it did I might never have seen this: "If you feel the irresistible need to get in digs or taunts for real or imagined hypocrisies, please use the email and not this forum."

I suggest we take this speaker up on his clearly implied offer at his publicly advertised email address. To give the devil his due, he does post in his right name and is easy enough to find via google. (BTW, I see "Citizen Pamphleteer" has a new look and is getting more content; congrats and good luck with that. You might make contact information available there as well, save folks the hassle of googling for it.)

As far as that goes, I'd encourage everyone to put something substantive about themselves in their blogger profile and include some form of alternative contact, email, personal web page with comments, something. It would go a long way toward fostering the kind of community which withstands strong and strongly phrased disagreement in search of a more lasting truth.

Peace.
 

I agree there's been enough sputtering to bring us to the border of Lederman's Law, though I think there's been a good measure of substance too.

But, if I may, your last point merits a response by way of clarification: I pin no hope on these "safeguards" and buy into nothing coming from the administration. (Though its sales pitch conforms to my view of how to read them -- for what little that may be worth.) I spoke only to statutory design, not efficacy. A toothless standard is still a standard.
 

I just read Robert Link's welcome assessment and am eager to extend my e-hand to JaO.

Beyond that, I take instruction from, and am ready to put this entire subthread under, one of JaO's remarks, which I won't soon forget:

Welcome to the world of secret law and secret courts. The public language of FISA has always been crafted to obfuscate the drafters' whole intent. This latest amendment skillfully extends that tradition.

That accounts for practically all of our disagreement. My arguments were premised on the idea that law's a public thing in a republican, JaO's advice was to forget what I learned at my mother's knee, or would have had she been a constitutional lawyer.

I've seen sharp drafting in trips around blocks in rough neighborhoods -- more than enough to clue me in as to where JaO is coming from, or, better, why he thinks the administration is poised to run with his reading. I hadn't seen that before, for which thanks.

Now, however, I find myself at a loss. I'm worried there's also a secret handshake.
 

Occasional Observer: I'm worried there's also a secret handshake.

I could show you but...

;)
 

occasional observer,

Shake.

Maybe soon, perhaps in another thread, we can explore the other hidden loopholes that cripple the safeguards within section 105B et seq.

Whoever drafted this whole piece of work would make a sharp Philadelpia lawyer seem like "Mr. Smith Goes to Washington."
 

Marty: When I commented on the Jane Mayer black sites post, the comments seemed to me worthwhile and engaged. I didn't return to read them until now -- apparently something happened to cause you to delete them.

Apparently there is not an option simply to close the comments, rather than delete them?

It's one thing not to have comments turned on at all. It's another to wipe out the contributions of people operating in good faith. I'm unlikely to participate here again, given the risk that your reaction to a problem created by others will turn that into a waste of my time.
 

JaO said...

Enlightened Layperson,

The way I read the new amendment, there does not have to be a specified or identified target abroad, only a reasonable belief that the person at whom the surveillance is "directed" is really abroad. This is not the same thing as a "target," which is a term generally applied in a warrant situation... Others may read the amendment differently, of course, and I could be wrong.

Unlike JaO, I do not make a distinction between the synonymous terms "directed" and "targeted." If the surveillance is "directed" at a foreign telephone number, then the NSA can conduct warrantless intelligence gathering of all foreign to foreign or foreign to US calls where that number is at one end.

Even if they wanted to, I doubt NSA has the capability to passively monitor by computer any more than a tiny fraction of the massive volume of telecommunications coming in and out of the US. They could actively monitor and actually listen into a tiny fraction of the passive surveillance. They simply do not have the personnel to perform such surveillance.
 

bitswapper said...

To me Marty's post leads to another intriguing question. Can a free democratic society, in this day and age, survive terrorism?

Our free democratic society has flourished despite far more intrusive surveillance than the TSP. Indeed, no one here has been able to demonstrate how they have lost any right or actual privacy whatsoever under the TSP.

Perhaps the question should be whether a country which refuses to defend itself by undertaking the most basic intelligence gathering long survive.
 

JaO,

Shake? You mean that's it? Type "shake" and hit enter? Now I know how Dorothy felt at the end of The Wizard of Oz.

Shake it is, then.

I've sat across the table from a few Philadelphia lawyers in my day, by the way. You can imagine how we got on.
 

Jao:

Yes, the new optional procedure is a new tool in the government's toolbox. I think might be usefully directed not at the major telecoms, but at other players -- for example, smaller ISPs, colleges, employers, and other assorted email hosts.

I thought that one of the major telcos had stated that it had refused the gummint's requests for the CDRs (although that may have been careful parsing).

But I agree that the gummint may be looking for muscle when approaching others.

The way I read the new amendment, there does not have to be a specified or identified target abroad, only a reasonable belief that the person at whom the surveillance is "directed" is really abroad. This is not the same thing as a "target," which is a term generally applied in a warrant situation.

This elision of the very specific and carefuly circumscribed "target" (a familiar concept in the realm of traditional wiretaps) into the mealy-mouthed "directed at" is a matter that should raise concern if not alarm. It allows a lot of rope to careful parsers (Yoo? Addington? Gonzales?)

On another topic:

I said previously that I don't see a reason why there should be a "geographical locus of intercept" provision in the FISA law, and that maybe a simple deletion of 50 USC § 1801(f)(2) might have done the job as far as concerns about restricting NSA ability to tap purely foreign calls. To recap, the way I see it is that even a tap that had a (suspected) foreign agent overseas as the specified "target" risked running afoul of FISA should that person call into the U.S. (providing the intercept was also done on U.S. soil).

I said that domestic criminal law allows for the "associates" of a legitimate "target" (the person for whom a warrant exists) to be tapped when they're talking to the "target"), with no warrant needed for these "associates".

On reconsideration:

FISA was passed in the wake of the uncovering of abuses by the NSA and others in tapping communications of U.S. persons. In particular, one such project involved the telecom giants (under gummint pressure if not simply voluntarily) handing over every day the logs of all telegrams send and received through the few major transit points for international telegraphy). This may have been the specific target of 50 USC § 1801(f)(2). Why the distinction? Perhaps because the activity took place in the U.S. so that we had more control over what is done and not done, and perhaps in part because a large part of that traffic involved just ordinary U.S. citizens' communications (in fact, given the routing at the time, probably the vast majority of such communications were to or from people in the U.S.). The geograpical limitation may not make much sense in today's telecom world from a technical standpoint, but it does from the pragmatic standpoint of eliminating Hoover sweeps of traffic that contains substantial amounts of communication by U.S. persons.

Should 50 USC 1801(f)(2) be (or have been) updated in a way that eliminates the geographical locus of intercept but which keeps the restriction on snoops of communications with U.S. persons (or people in the U.S.) without a warrant?

Could we insist that only those communications which are between foreign people only be exempt from FISA? I think so; I think the real problem is technical; how to assure that the filter lets through only such conversations or communications. We might demand "best effort" and minimisation procedures, while providing some leeway for occasional snoops of the conversations of U.S. persons (w/o criminal penalty) provided they are not misused and are disposed of properly when they are found.

What about the point (one made by Rivkin in his debate on C-SPAN with Greenwald) that the "associate" of a wiretap is always fair game? If we're targeting a foreign person, shouldn't we also get the contents of calls made to a domestic person?

The difference, I see on reflection, is that in the case of domestic Title III "taps", we already have a warrant!!! And FISA doesn't prohibit any taps on U.S. persons (or which pick up conversations with U.S. persons) if a FISA order is obtained! To allow the tap of conversations which involve a U.S. person in the absence of demonstrated "suspicion" or "probable cause" just because we're of the opinion that furriners don't even deserve any minimal rights to privacy from any kind of gummint snooping (which is, of course, the 'theory' behind the allowing of exclusively foreign snoops in the first place) is throwing the baby out with the bathwater. If they want to tap conversations into and out of the U.S., involving U.S. persons, make them at least clear the FISA hurdle (and any technical ones needed to be resolved to identify the locus of the participants). No snoops for no reason whatsoever.

Cheers,
 

Even if they wanted to, I doubt NSA has the capability to passively monitor by computer any more than a tiny fraction of the massive volume of telecommunications coming in and out of the US. They could actively monitor and actually listen into a tiny fraction of the passive surveillance. They simply do not have the personnel to perform such surveillance.

I think this is a very misleading assumption. The private sector has capacity to process all this traffic; the NSA can match that capacity. Its resources are classified, but known to be huge.

The static file storage in email servers, web servers, instant-message servers, FTP servers, etc., that is "concerning persons reasonably believed to be outside the United States" is whatever subset of the storage in such servers the government determines. Something less than one-to-one. If the hosts can afford to store the universe, the government can afford to store a huge subset.

For storing traffic content, it depends on how long a time slice is involved at once. All digitized information is stored in computers along its path, for a short period. What matters here is how long a chunk of time the NSA wants to retain the full set of data. Most likely, it would execute filtering algorithms to retain a subset of content most likely to be interesting.

Storing traffic metadata is less demanding, and can be retained indefinitely, one-to-one, with fewer storage resources. ISPs do it all the time. The NSA can easily match that feat.

After the variable of those fractional factors (and time-chunk multipliers) are applied, the storage resources basically scale linearly with the volume. Storage is just as cheap for the NSA as it is for the private sector.

Once all this stuff is loaded into databases, the computing resources required to query it -- datamining, if you choose to call it that, although that is a nebulous term -- typically scales proportionally to the logarithm of the size of the database. Huge databases can be searched quickly and economically. Think Google. Then think Google on steroids.

To take a simple case, if the government wants to target my international communications but does not want to get a warrant identifying me as a "target," instead it can capture all international communications (with the surveillance legally "directed" there), load it into a database and then query the database for my communications. As database queries go, that is a simple search. All legal now, apparently. And quite feasible. The government incurs a large fixed cost to capture the data and load the database. The marginal cost to retrieve my particular information is trivial.

Obviously the most scarce resource is the human analyst. The whole idea is to have the computers do the heavy lifting and filtering to present the analyst with information he can digest.

Anyone -- innocent party or adversary -- who thinks their information is safe from surveillance because the NSA can't process all that volume it is very naive.
 

Arne: I thought that one of the major telcos had stated that it had refused the gummint's requests for the CDRs...

Yes, I recall that, too. As you know, that involved the request for call domestic call data records (just the bare metadata of who called whom when).

AFAIK, with regard to the real-time surveillance of traffic content at the international switches for the "TSP," we have not heard of a company turning down the government's request. I am assuming that these telecoms will continue to cooperate voluntarily in future.
 

Unlike JaO, I do not make a distinction between the synonymous terms "directed" and "targeted." If the surveillance is "directed" at a foreign telephone number, then the NSA can conduct warrantless intelligence gathering of all foreign to foreign or foreign to US calls where that number is at one end.

The law does not require that surveillance be "directed" at a particular phone number or IP address, or an identified person. There is nothing that prevents surveillance of traffic to/from all foreign numbers or addresses at once.

If I am running the NSA and "direct" my surveillance to capture all international traffic to/from the international side of a telecom switch connected to a transatlantic cable, I can "reasonably believe" that whatever person is on the other end is outside the United States. (I might even have my programmers double-check that the phone number or IP address is assigned to a foreign domain.)

If there is any argument over my reading of the law above, since I really don't have to make my argument to anyone but myself and some in-house lawyer, I am guaranteed to win! That same lawyer, probably hand-picked by David Addington, may even have helped draft this legislation with that exact intent.
 

JaO:

[Arne]: I thought that one of the major telcos had stated that it had refused the gummint's requests for the CDRs...

Yes, I recall that, too. As you know, that involved the request for call domestic call data records (just the bare metadata of who called whom when).


CDRs are not "metadata". Amongst other things, under FISA (as it was, at least), they are (arguably) "information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication", which is to say "content". And they would need at least a "trap&trace"/"pen register" court order if sought for criminal investigation purposes.

They can be processed into "metadata" (traffic stats, etc.), but they are the raw data itself.

AFAIK, with regard to the real-time surveillance of traffic content at the international switches for the "TSP," we have not heard of a company turning down the government's request. I am assuming that these telecoms will continue to cooperate voluntarily in future.

I suspect that not all big telcos have had the taps put in on the big switches. All telcos have to provide CALEA compliance, but the types of equiment needed for this is different from that which the NSA would use (and I'm not sure that NSA wants the telco's legal department to be putting in foreign intelligence snoops, either).

I would guess that AT&T was a "pilot" program.

Cheers,
 

Arne,

I don't see any point getting too deep into the weeds of CALEA, etc., speculating on what technology might have been used. If the telecoms controlling the international switches were voluntarily cooperating with the NSA, they would install whatever devices the NSA wanted them to install.

In all the reporting about the "TSP," etc., I have never heard it characterized as a mere "pilot," and I would not make that speculative leap.

In any event, with this new legislation enacted, there is no reason for all the telecoms not to cooperate voluntarily now.
 

Arne,

As I have understood the call data records described by the USA Today article last year, that was information provided after-the-fact from telco databases. As such, it was protected by privacy statutes restraining the companies from providing it to government entities, but itself did not qualify under the pen register statute (or its FISA equivalent) governing real-time acquisition.
 

Nell:

I thought you were moving from the United States after the Democrats passed FISA changes?
 

JaO:

As I have understood the call data records described by the USA Today article last year, that was information provided after-the-fact from telco databases. As such, it was protected by privacy statutes restraining the companies from providing it to government entities, but itself did not qualify under the pen register statute (or its FISA equivalent) governing real-time acquisition.

You're quite correct (AFAMNSHSK). While a "trap&trace" court order is needed for real-time feeds, the CDRs can be subpoenaed in the same way as any "business records", absent any telecom law provisions concerning privacy of such (and there may be some laws that specifically cover such, IIRC, but I don't have the bandwidth to go search 'em out right now). But I'm sure, for a fact, that they can be subpoenaed for criminal investigations with the proper showing to a court.

And you're right that the CDRs asked for were not real-time, but rather existing records.

I'd note that some telcos have opted not to store short message (SMS) text in the billing records (CDRs) as this is arguably "content". And some telcos have opted to provide surveillance capability for SMS through "near-real-time" delivery of SMS billing records with text by post-processing the billing records for those sent or received by the target, rather than buying the more expensive adjuncts needed for "real-time" delivery....

Cheers,
 

JaO said...

BD: Even if they wanted to, I doubt NSA has the capability to passively monitor by computer any more than a tiny fraction of the massive volume of telecommunications coming in and out of the US. They could actively monitor and actually listen into a tiny fraction of the passive surveillance. They simply do not have the personnel to perform such surveillance.

I think this is a very misleading assumption. The private sector has capacity to process all this traffic; the NSA can match that capacity. Its resources are classified, but known to be huge.


All the gnashing of teeth here involves a fear that NSA personnel are actually listening to all of our international calls - presumably because they have nothing better to do. The tiny NSA simply does not have the personnel to do this. In fact, I doubt the entire government has the personnel to do this.

To the extent that you consider passive computer mining of telecommunications for jihadi phrases and likely targets to be the equivalent of real people listening to your conversations (which I do not), there is no evidence that the NSA computers have the capability to monitor anything near the entire international telecommunication flow in and out of the US. The educated guesses posted here on the scope of the TSP have ranged from a few hundred to several thousand numbers being monitored. Even the high side of these estimates are less than a drop in the bucket of all telecommunications.

I am not an expert in the field by any means, but I imagine data mining through voice telecommunications in a myriad of languages and dialects is an extremely processing intensive proposition for surveillance of just thousands of numbers. I am having a very difficult time seeing the scope of this surveillance expanded by a quantum.

You appear to be worried that the government will store the billions of telecommunications in a giant data base and then for some reason look for yours. Assuming that the NSA has this storage and data mining capability, why would they waste the time creating a figurative haystack the size of Mt. Everest simply to look for the needle of your personal telecommunications when they can simply tap into your lines and listen in directly.

BD: Unlike JaO, I do not make a distinction between the synonymous terms "directed" and "targeted." If the surveillance is "directed" at a foreign telephone number, then the NSA can conduct warrantless intelligence gathering of all foreign to foreign or foreign to US calls where that number is at one end.

The law does not require that surveillance be "directed" at a particular phone number or IP address, or an identified person. There is nothing that prevents surveillance of traffic to/from all foreign numbers or addresses at once.


Apart from the commonly understood meaning of "directed?" Even if such an enormous program was technologically possible and desirable, surveilling all international telecommunications going across our borders is not "directed" in any rational understanding of that term.

I see the point you are trying to make. I just disagree that the law can be read that expansively.
 

Another moving part:

The 9th Circuit has scheduled argument on Hepting v. AT&T for Aug. 15. The appeal, by the "volunteer" telecoms and the US, is from Judge Vaughn Walker's denial of their motions to dismiss on, among other grounds, state secrets and standing (http://www.fas.org/sgp/jud/statesec/hepting072006.pdf).

Walker also has the "NSA Telecommunications Records Litigation," in which various state regulators are trying to investigate the telecoms. In those cases he rejected a US motion for summary judgment but reserved on state secrets pending the outcome on appeal in Hepting. (http://www.cand.uscourts.gov/cand/judges.nsf/61fffe74f99516d088256d480060b72d/d4f95e001a4875e7882573220069f656/$FILE/State.Cases.SJ.Order.Final.pdf)

A lot has changed in the public record and the statutory backdrop to these lawsuits. How the defendants do (or expect to do) on appeal (they did quite well in the 6th Circuit) should affect their assessment of options. Walker's Hepting decision does not of course deal with the Protect America Act, but it addresses the voluntary course of action based on an Attorney General certification under 18 USC 2511.
 

Some napkin'n'pencil calculations:

The average consumer makes do with perhaps 600-1000 minutes per month on their cell phones.

That's about 1.7 Gbytes per year assuming an average of around 600 minutes/month (@ G.726 32Kbps ADPCM).

A single CD can record and hold about 700 MBytes (and a DVD at least 6 times that). So a couple of CDs/year per person would do the trick to handle all the cell calls (or less than one DVD-R). I think that's not out of the question for the gummint to afford, somewhere around $50M for media.

I'd guess that landline usage is probably around the same volume.

Saying the gummint can't possibly keep recordings of it all for technical reasons doesn't sound correct.

What about circuit capacity? If the load was even distributed around the clock, that would amount to about 110 Gbps (but the load is not evenly distributed). But that could be handled by only a 100 or so Gigabit Ethernet links (or 10 OC-192s). If peak loads are four times average, multiply by four and you still aren't beyond the technical means of the gummint.

FWIW, though, Internet traffic requirement are probably far above these. Which may explain the push for "filters" such as the Narus STA6400.

Another approach that could be used to reduce bandwidth and storage requirements for Internet traffic would be to not save "publicly available" (and unchanging) data transmissions (such as web pages), but instead just put in a reference. If you don't need to save a copy of a MP3 (or JPEG) each time it's downloaded, you'd save lots on bandwidth.

Cheers,
 

Assuming that the NSA has this storage and data mining capability, why would they waste the time creating a figurative haystack the size of Mt. Everest simply to look for the needle of your personal telecommunications when they can simply tap into your lines and listen in directly.

Because that would require a warrant!

And the fixed cost of building the database once enables not just singling out my communications, but everyone's communications. Once the database is built, the search to isolate anyone's data becomes a trivial IT problem and a has relatively tiny cost.

I just disagree that the law can be read that expansively.

If I were an NSA officer, I would have no hesitation is swearing an affidavit summarizing the facts that way. ("The surveillance of each communication in question is directed at a person reasonably believed to be located outside of the United States.") To make that statement, I am not required to know any person's identity. I merely must believe that somebody overseas is likely to be the sender or receiver of each message.

Remember Gen. Hayden's motto: "My spikes will have chalk on them."

I also have no doubt that this administration's lawyers would bless this reading of the new law. There is no court to tell them otherwise.

Shorter talking points: Don't worry, the government couldn't possibly have computers big enough to do this, and would not want to do what the new law its lawyers just wrote says it can do. Besides, this administration's lawyers would never read a law "expansively."

Wrong, wrong and hilariously wrong.
 

arne:

JaO and my disagreement is not about storage capability, but rather the processing capability necessary to get accurate voice recognition for the world's different different languages, dialects and slang to conduct real time data mining for just key phrases and high value targets in all international communications coming in and out of the US.

Do you have the knowledge to make a napkin calculation of that?
 

For the record, I never said anything about voice recognition technology, which is pretty leading-edge stuff. I do think the NSA probably employs some of the best minds in that field, and we dont really know what they can do.

My simple example of the reverse-targeting methodology required to isolate my communications depends only on such things as phone numbers and IP addresses, which can be searched by conventional and mature database technologies.
 

"Pack your grip
Takin' you on a trip
Ain't no seats
All we got's dancin' feet

Leave you worries behind..."


Every time I call one of these infernal IVR machines and try to give my account number, I'm forced to press the "0" key (if one's available -- lotsa luck...) to talk to a real person to get the information in. "Let's see if I got that right ... did you say 'yes'?" haunts my dreams at night after such sessions.

Every time I tell my V/R Navi "suspend guidance", it comes back with "showing Italian restaurants..."

I got no worries. ;-)

Cheers,
 

What about circuit capacity? If the load was even distributed around the clock, that would amount to about 110 Gbps (but the load is not evenly distributed). But that could be handled by only a 100 or so Gigabit Ethernet links (or 10 OC-192s). If peak loads are four times average, multiply by four and you still aren't beyond the technical means of the gummint.
Similar estimating indicates that the gummint doesn't use enough anywhere near enough electricity at its known high-security sites to do high quality speech-to-text on all these calls. Hence the need for metadata mining/analysis. (Are satellite infrared images censored?)

In WW2 the Germans knew that it was possible to break Enigma with a building full of machinery (and some smarts). They just didn't think anybody would actually do it, and keep the accomplishment hidden from them.
 

What about circuit capacity? If the load was even distributed around the clock, that would amount to about 110 Gbps (but the load is not evenly distributed). But that could be handled by only a 100 or so Gigabit Ethernet links (or 10 OC-192s). If peak loads are four times average, multiply by four and you still aren't beyond the technical means of the gummint.
Similar estimating indicates that the gummint doesn't use enough anywhere near enough electricity at its known high-security sites to do high quality speech-to-text on all these calls. Hence the need for metadata mining/analysis. (Are satellite infrared images censored?)

In WW2 the Germans knew that it was possible to break Enigma with a building full of machinery (and some smarts). They just didn't think anybody would actually do it, and keep the accomplishment hidden from them.
 

Doesn't the discussion about NSA listening to everybody miss the point? That being that, with this bill, the government can listen to anybody, provided the AG will certify the target of the surveillance is a person overseas.

Tempting as it might be to imagine that the NSA has hardware and software that could do contextual identification of keywords in verbal messages, this is still just a bit beyond current technology.

We should remember that the bill was written by the WH, it presumably was written to explicitly enable what they want to do, to be the ability to obtain all the messages and conversations "directed," at a "person outside the US".

This does not require voice recognition. To do it efficiently, given the way people can change cell phones, it likely does require something like the "narus" boxes supposedly tapped into AT&T.
 

Spencer Ackerman at TPM Muckraker links to a motion the ACLU filed yesterday asking the FISA court to unseal, after redaction, its January 10, 2007 order approving the TSP, any subsequent orders (including the one rumored to have vacated the earlier one), and any related government briefs.

The motion rests on public policy considerations (the need for debate before extending the PAA and for public knowledge about the scope of surveillance), the administration's selective disclosure of the order, and judicial openness arguments (noting previously published FISC opinions).

In the alternative, they move that the court order or ask the executive to declassify.

Speaking of the PAA, the ACLU says "the law's implications are dramatic." If this thread gives any indication of how the law would actually be used, they ain't seen nothin' yet -- and may never. But I wish them luck.
 

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