June 25, 2008

The FISA Compromise, Part 1

Carroll Andrew Morse

Congress and the President seem poised to agree on a revision of the Foreign Intelligence Surveillance Act, the law that sets the terms that American intelligence agencies must follow when gathering electronic intelligence. A major issue that had stalled reform was deciding how to treat foreign nationals outside of the boundaries of the United States who made unexpected contact with someone inside of the United States. Until February, the Federal government had been operating under a bright-line rule; anyone outside of the United States could be surveilled without a warrant, regardless of where the party on the other end of the communication was located.

In revising the law, Congressional Democrats began from a position that surveillance could be conducted in the absence of a court order only when both parties were outside of the United States, but this created foreseeable problems. What would happen when a known terrorist under surveillance unexpectedly contacted someone within the US? Would the intelligence agency be expected to immediately hang up on the call to comply with the law?

Responding reasonably to the possible contingencies, Congressional Dems mellowed their position and have agreed to maintain the one-end-outside rule in close to original (though a more verbose) form. One last time, here's the original exemption

Sec. 105A: 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.
The new section, contained in the bill passed by the House and sent to the Senate, will read…
(a) Authorization- Notwithstanding any other provision of law, upon the issuance of an order in accordance with subsection (i)(3) or a determination under subsection (c)(2), the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.

(b) Limitations- An acquisition authorized under subsection (a)--
(1) may not intentionally target any person known at the time of acquisition to be located in the United States;
(2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;
(3) may not intentionally target a United States person reasonably believed to be located outside the United States;
(4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and
(5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.

A bit of a trade has occurred. Section (3) will limit the surveillance powers of American intelligence agencies to non-United States persons only, whereas the original law extended to United States persons (means citizens or legal residents) outside of the US. On the other hand, section (4) makes clear that the communications of a non-United States person within the United States can be observed (though the terms of surveillance are limited by later provisions in the act) without court approval if he or she is communicating with someone outside of the United States, which wasn't entirely clear in the original. But most importantly, the essential, sensible original rule is preserved: no court order is needed to monitor the communications of non-United States persons communicating to or from foreign soil, and the Steyn paradox is no longer a problem…
If the U.S. government intercepts a call from Islamabad to London about a plot to blow up Big Ben, it can alert the Brits. But, if the U.S. government intercepts a call from Islamabad to New York about a plot to blow up the Chrysler Building, that's entirely unconstitutional and all record of it should be erased.
Following the new law doesn't require an intelligence agency to hang-up when the targets of foreign surveillance unexpectedly contact a party within the US.

2. The bulk of the remainder of the bill is about “minimization” procedures. According to Andrew McCarthy of National Review Online, the price for the reasonable parts of the bill was agreeing to make intelligence agency “minimization” procedures subject to court approval. McCarthy explains the meaning of minimization…

The attorney general and the director of National Intelligence will now have to submit their “targeting” and “minimization” procedures to FISA Court review. The judges will have to be satisfied that foreign surveillance is not a pretext for spying on Americans, and that information incidentally collected on Americans in the course of monitoring aliens is used only for pre-approved intelligence or law-enforcement purposes.
There is a legitimate worry that this trade could be the beginning of laying the groundwork for a rebuilding the “wall of separation” between foreign intelligence gathering and law-enforcement that help contribute to the September 11 attack.

3. The other provision of this bill gaining major attention is the immunity provision for telecommunications companies who have assisted and continue to assist the government with electronic foreign intelligence gathering, which I will explain in Part 2...