Telco immunity is the icing, not the cake
Last month, the House of Representatives passed the FISA Amendments Act of 2008, Congress’ latest response to President Bush’s requests for expanded wiretapping authority. The Democratic leader, seemingly determined to avoid real debate on the proposal, scheduled a final vote a day after the bill was introduced in the House. Considered by Democratic leaders as a “subversion,” it has been unanimously supported by House Republicans and opposed by a majority of Democrats.
The 114-page bill was rushed through the House so quickly that there was no real time to discuss its many complex provisions. This may explain why the telecom immunity provision has received so much attention in the media: it is much easier to explain to readers who are not familiar with the intricacies of surveillance law than other provisions. But as important as the immunity issue is, the law also makes several anticipated changes to surveillance law that will affect our privacy rights for years to come.
Essentially, the new law greatly expands the government’s ability to wiretap without meaningful judicial oversight, by rewriting “oversight” so the feds can drag their feet on obtaining warrants more often. It also gives the Feds unprecedented new latitude in selecting eavesdropping targets, latitude that can be used to collect information on non-terrorist activities like P2P copyright infringement and online gambling. In short, the FISA Amendments Act of 2008 opened loopholes so large that the feds could drive a truck loaded with civil liberties purloined through it. So the telecom vaccine is just smoke; let’s see the fire.
The importance of judicial review
The most important question in the FISA debate is whether judicial oversight is required when the government spies on international communications that originate on American soil. FISA does not simply limit spying on foreign communications, but under current law, the government must obtain court approval to tap a phone line or cable in the United States, even if the end of the communication is abroad. An application for a FISA warrant must specify the person or organization being targeted and present evidence that the target is an “agent of a foreign power,” such as the Chinese government or Al Qaeda.
The Bush administration has objected to these restrictions, insisting that the president has the authority to interrogate suspected terrorists without court supervision. Director of National Intelligence Mike McConnell argued that the FISA process is too onerous and hinders the intelligence community’s efforts to spy on terrorists.
Civil libertarians disagree, noting that FISA sets a lower bar for surveillance approval than the process for obtaining ordinary criminal warrants. And in emergency cases, FISA allows the government to begin spying immediately and seek warrants after the fact. More importantly, civil liberties groups insist that without judicial oversight, there is no way to know whether the government is respecting any limits established by Congress.
See, for example, the case of National Security Letters, the administrative documents the Patriot Act allows the FBI to issue without court oversight. A federal audit last year found hundreds of cases in which the FBI had issued NSLs without even following the consent rules of the Patriot Act. Civil libertarians warn that similar cuts are inevitable if the NSA is allowed to select eavesdropping targets without judicial review.
There are no individual licenses for international calls
When it comes to judicial oversight of domestic-to-international calls, the legislation passed by the House last month is an unequivocal victory for the White House and a defeat for civil liberties. The law establishes a new process whereby the Attorney General and the Director of National Intelligence can sign off on “warrants” of surveillance programs “targeting persons believed to be outside the United States.” The government is required to submit an “affidavit” to the FISA court describing the surveillance plan and the “mitigation” techniques that will be used to avoid intercepting the mass communications of Americans. However, the government is not required to “identify the specific facilities, sites, premises, or property” where the recall will take place. Specific eavesdropping goals will be at the NSA’s discretion and reviewed by a judge. Furthermore, judicial review of government “warranties” is more limited than the review afforded in FISA applications. The judge was only allowed to confirm that the warrant “contains all the required elements,” that the targeting procedures are “reasonably designed” to target foreigners, and that mitigating procedures have been established.
Essentially, there seems to be no limit to the amount of “orders” the government can issue. So, for example, a single “order” could cover the interception of all international traffic passing through AT&T’s San Francisco headquarters, with complex software algorithms determining which communications are retained for the examination of human analysts. Without a list of specific goals, and without a background in computer programming, the judge is unlikely to be able to evaluate whether such software is well “targeted” at foreigners.
The House bill also extends the deadline for reviewing surveillance services, potentially allowing the government to begin a hearing and then drag out a judicial review for months. Under existing law, the government must obtain judicial approval within 72 hours of the start of an emergency phone call. In contrast, the judicial review of “certificates” can take as long as four months. After it begins eavesdropping, the government has one week to submit its “certificate” to the FISA court, which has 30 days to review the application. If the judge finds problems with the warrant, the government can continue to listen for another 30 days before being required to comply with the order. And the government can buy it still more time by filing an appeal with the FISA Court of Review. The appeals court can take up to 60 days to make its decision, and will often allow the government to continue filing throughout the judicial review process. This means that in many cases, the government will have ended its spying operations long before the courts reach a decision on its legality.
There is no “target” America
The Act provides modestly enhanced protections for American citizens living overseas. The “permits” described in the previous section are available only when they “target” non-American citizens or legal residents. When the target of an eavesdropping program is an American, the government must satisfy more stringent requirements, including the traditional requirement that the target be an “agent of a foreign power.” The treatment must also be stopped within seven days if judicial approval is not forthcoming.
This section is a modest restriction on the government’s pretrial hearing powers. Traditionally, FISA does not regulate eavesdropping activities abroad, even if they target American citizens. Under the new law, the government will need court approval to “target” Americans overseas, especially when surveillance is conducted overseas.
However, as a practical matter, the enforcement of American privacy rights may prove very limited. The government may not “target” Americans under the broad “authorizations” discussed in the previous section, and in some cases the government may say the information it collects about Americans is part of “reduction” procedures. required, but the government will retain significant latitude in determining what information is withheld. The paradoxical result is that broad wiretapping orders can be validated more easily than narrow ones. For example, the government cannot “authorize” a single “target” of the international communications of a San Francisco resident. However, he could “authorize” a dragnet surveillance program that intercepts the international communications of all San Francisco residents under the pretense of “targeting” any foreign terrorists who might happen to be communicating with San Francisco residents. .
This is especially troubling when we remember that in 2002, the Foreign Intelligence Surveillance Court arise that FISA does not prohibit coordination between foreign intelligence agencies and domestic law enforcement. That suggests the FBI could ask the NSA to adjust its filters to prevent evidence of Internet gambling, copyright infringement, or other ordinary crimes. Americans whose communications are intercepted cannot be “targets” of surveillance, but the House rule only requires that gathering foreign intelligence be “a substantial purpose” of the wiretapping programs. If the terrorist surveillance program also catches Americans making profit or violating copyright law, that’s even better!