Saturday, June 21, 2008
A Guide to the New FISA Bill, Part I
Are you claiming that the 1978 FISA allowed untargeted (vacuum cleaner style) surveillance of wire communication to/from the U.S. if it was conducted outside the U.S.?
?Today, it appears, the government wants or needs to conduct such surveillance inside the United States, probably because it needs the assistance of the telecommunications providers and their equipment."
Is it not a salient aspect of the consolidated civil cases (currently under stay) that EFF
is arguing, that precisely such domestic surveillance has been going on at least since the splitter technology rooms were set up in San Francisco and elsewhere that basically collected all traffic?
The days when a US Cabinet officer said "Gentlemen do not read each other's mail" have been over since WW2.
There have long been sigint agreements between the USA - the UK - Australia and Canada dating back to the days when the USA needed facilities in places like Hong Kong (to eavesdrop on China), Cyprus, to listen on the Middle East etc.
There was friction between the UK and other EU countries about the more privileged access the UK was perceived to have to the US intelligence take.
The EU Parliament issued a draft report on the Echelon system which concluded that the US perceived it to be in the US interest to pass on commercially sensitive intelligence information to US corporations - eg Boeing in relation to Airbus.
I think in Europe we take it for granted that the USA can listen to whatever we say on the phone or by e-mail whenever it wants to. That may be unfounded, but that's the perception.
But then, we have had to get used to a lot of UK government snooping.
Is there some reason you call the NSA's warrantless wiretapping program the "terrorist surveillance program"? Why prefer a sales slogan to an accurate term?
"I think in Europe we take it for granted that the USA can listen to whatever we say on the phone or by e-mail whenever it wants to. That may be unfounded, but that's the perception."
Mourad raises a point that interests me. To what extent can foreign governments today listen in or intercept US domestic communications and/or US domestic to foreign communications? To what extent is it reasonably anticipated that this will occur in the future? Does this play a role in determining how FISA should be modernized?
This is something I'm interested in as well. I think the answer is tied in with an assumption that I've seen in both the FISA articles so far: it is assumed that the eavesdropping has to take place at the "switches".
If this is the case, then no, foreign governments aren't snooping on my emails to Aunt Betty, as the switches are located in the USA, in locations controlled by the uS Telcos and are secure from foreign snooping -- except in so far as the US Government shares intelligence with those governments.
The situation is significantly different for those in other countries, as the packets tend to get routed through switches in the USA.
I'd like to point out that I think it's incredibly dangerous to allow snooping on the switches, even with safeguards, and that such snooping except in times of dire national emergencies would have horrified previous generations.
Repeal FISA is up and running. Anyone who wants to is welcome to sign up and become a Poster on it. The purpose of the blog is to organize a drive to repeal the FISA laws and all laws that pardon or give immunity from prosecution anyone who has violated the Constitution during the Bush Administration.
That is why we want everyone to be able to Post so they can start a conversation about an idea they have to make this happen.
Stop on by and check it out. By all means leave a comment and sign up to blog with us as we figure out what needs to be done to return our Fourth Amendment Rights and our rule of law.
If you have a blog already and you become a poster we will link to your site.
There are three main arguments for modernizing FISA, only the first of which has been advanced publicly with any force by the Bush Administration. This first argument is that FISA must be modernized because, in the years since 1978, the statute’s regulatory reach has been artificially expanded by the transition from satellite to fiber optic cable for carriage of transoceanic communications. Satellites use radio waves to carry international calls, and FISA does not regulate surveillance of international radio communications to or from the United States (unless the target of the surveillance is a particular, known, U.S. person who is located in the United States). But FISA does regulate surveillance of international wire or cable communications, to or from the United States, when conducted in this country (even if the target is a non-U.S. person). Thus, the government claims, surveillance of international communications that used to be conducted outside of FISA is now subject to the statute because of changing technology. A review of telecommunications history, detailed in my whitepaper, shows this claim to be exaggerated: the transition from satellite to cable was neither as dramatic, nor as unanticipated, as the government argues.
I agree with you that the emphasis on the alleged "radio" nature of the communications in 1978 is a bit of a "exaggerat[ion]". I think that it is in fact a "red herring" (particularly when the supposed changing nature of of the transport medium is used to argue for the need for a change in the laws).
I think that the original distinction between "radio" and "wire" communications had more to do with the nature of the transaction; radio being a one-way "broadcast" with intended listeners maybe listening and maybe not (in some respects more like e-mail) and "wire" communications requiring definite and thus identifiable parties, generally (as with phone conversations) in two-way communication. But 50 USC § 1801(f)(2) and 50 USC § 1801(f)(3) are a bit different in the requirements for the subjects snooped, with FISA restrictions on "radio" snoops applying only if all (intended) participants are within the U.S., while for "wire", FISA applies when any party is in the U.S.
I go into this more here, in comments here, here, and here (comment at 11:18AM).
The idea that we used to be able to snoop phone calls because part of the transport path is carried over radio waves (but not necessarily so), while part of it almost assuredly is done through "wire" transmission, is not a very logical parsing (even if it is handy for those that want to snoop as much as possible through whatever "loophole" they can gin up). Why the luck of the draw (satellite versus underseas cable) should determine whether the conversation can be snooped is beyond me, particularly since the callers have very little or no choice as to what mode of transport is used, so their expectation of privacy should be the same in both cases.
See also discussion here.
If the surveillance in question is unconstitutional, then no law or executive order can make it constitutional, nor strip away constitutional protections such as by limiting liability of an unconstitutional actor.
That is what amendments are for, correct?
Is it true that no law or executive order can make an unconstitutional act into a constitutional act?
Limiting liability in order to minimize the incentive to act in a constitutional manner is also unconstitutional, correct?
So, how can an actor claim reliance on a law that is consitutionally suspect?
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FISA modernization bills have some legal problems. It was never conducted outside USA.
The government is working with the telecommunications providers and using their equipment to help keep this country safe from radical terrorists.
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