FISA: What Isn't Electronic Surveillance?

[babylonsister]

http://www.tpmmuckraker.com/archives/003872.php

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...

more...

http://www.tpmmuckraker.com/archives/003872.php

[Fiendish Thingy]

1. um, listening with a glass against a wall? They still need a warrant for that, right? n/t

[lonestarnot]

3. WoW sig line harsh.

But true.

[Generator]

5. Can I ask is there some specific

memorial that the candle avatar is for? I've been wondering.

[lonestarnot]

6. Yes it is a loaner from ... damn I have to think who, but

keeping it burning until the war is over.

[Ghost in the Machine]

7. I made it as an avatar and gave it as a gift to any DUer who wanted it

Feel free to save it and use it, or you can hotlink to it from my server

(right click > save image as > ) if you want to put it on your computer and load it up to photobucket or somewhere.

Or you can right click> properties> then copy & paste the url, hotlinking to my server...

On edit: I made it as a candlelight vigil until all of our troops are home. Until this war ends, my candle stays lit, and I appreciate everyone who has used it so far.

PEACE!

Ghost

[lonestarnot]

8. I was getting to it Ghostie. I had to wait for p.m. response from another kind DUer for

your screen name as I am getting senile. :hug:

[Ghost in the Machine]

9. :-)

It's all good... I have brain slips every day.. :hug:

[Kutjara]

2. Enough loopholes to drive a team of horses through.

The drafter(s) of the bill were much cleverer than the "representatives" who voted on it. Or at least they have a much better understanding of the nature of modern telecommunications. By couching so much of the bill in "reasonableness" terms, they have enabled the most egregious abuses imaginable. Let's look at one example.

Imagine I send an email from my web-based email account to the web-based account of a friend. Imagine, further, I live in Los Angeles and she lives in Miami. Either of our web-mail providers could (and probably do) route our mail through multiple mailservers, some of which could be overseas. That's one of the glories of offshore outsourcing, see? It's not just cheaper to hire people in developing countries, it's cheaper to site infrastructure there too.

So, to return to the example, imagine Agent Mike is sitting at his desk, probably thinking about what freedoms he wants to strip from his fellow Americans next or torturing a kitten or something, when his computer emits a beep, telling him that somebody, somewhere has sent an email overseas. Sure enough, I've sent one from my LA apartment, and it dutifully wings it's way to Vancouver (or Bangalore or Mexico City), before zipping back onto US soil and landing in my friend's inbox in Miami.

Wow! Now Agent Mike has two people to investigate. Me, for sending a communication overseas, and my friend for receiving a communication from overseas. Wow! Agent Mike sure is going to be busy investigating us! Of course, when the FISA "court" gets around to looking at this communication (among the billions of others that followed similar offshore routes), I'm sure they'll say "no Agent Mike, see, this was a purely domestic correspondence. So forget everything you read this past half-year."

Of course, we'll never know if the FISA court will say this at all.

[zabet]

4. We are being watched and listened to on the

net due to the simple fact it is world wide,
and a furriner outside the 'homeland' may be
logged on to DU. :tinfoilhat: