FISA: What Isn't Electronic Surveillance? [View All]

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FISA: What Isn't Electronic Surveillance?
By Spencer Ackerman - August 6, 2007, 5:30 PM

Experts are still digesting the revision to the Foreign Intelligence Surveillance Act signed (pdf) by President Bush yesterday, known as the Protect America Act. It's a fairly safe bet, judging by the amount of expert disagreement about the act's provisions, that most members of Congress don't know what they've just passed.

What's clear is that now the Attorney General and the Director of National Intelligence can now obtain the international communications of U.S. citizens or residents without a warrant provided that such surveillance is "reasonably believed" to be "directed at" persons outside the country. The FISA Court's new, restricted role here is to determine -- up to six months after the fact of the surveillance -- that the government's procedures in seeking the primarily-foreign data is not "clearly erroneous." If it isn't, the surveillance goes forward.

One of the most controversial, and little understood, provisions in the bill changes the definition of electronic surveillance -- but not substantively. In short, it takes out from Fourth Amendment protections surveillance of a person "reasonably believed to be located outside of the United States," no matter who that individual communicates with, inside or outside the United States. "This deems certain acts as not electronic surveillance as a legal matter, when they certainly would be surveillance as a factual matter," says Marc Rotenberg of the Electronic Privacy Information Center.

In fact, the legality of collecting such information without a warrant turns entirely on who the government says it's primarily interested in. "If you are talking with somebody overseas, and the government intercepts that communication, it is electronic surveillance if government says they were directing the surveillance at you," says Jim Dempsey, policy director of the Center for Democracy and Technology. That kind of electronic surveillance would require, under FISA, a probable-cause warrant. But the law allows the government to skirt that requirement by shifting the emphasis of its investigation: "It is not electronic surveillance if the government says it's directing the surveillance at a person overseas."

This goes beyond the Terrorist Surveillance Program. As described by President Bush in December 2005, communications monitored by the TSP had to involve, on one end, a known al-Qaeda figure. Now, the subject of surveillance simply has to be "reasonably believed" to have "foreign intelligence information" and be, more likely than not, outside the U.S. "The only thing they can't do is that they can't ask the FBI to go put a tap on your phone to listen to your phone conversations with other people in the U.S.," says Kate Martin of the Center for National Security Studies. "But what they basically do is they scoop up the stream of all calls going in and out of the U.S. ... There's no individualized suspicion, no individualized collection or acquisition" of information.

Entirely without a warrant, the act allows the collection of:

foreign intelligence information from or with the assistance of a communication service provider, custodian, or other person (including any officer, employee, agent, or other specified person of such service provider, custodian, or other person) who has access to communications, either as they are transmitted or as they are stored, or equipment that is being or may be used to transmit or store such communications...

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