Thread: The new FISA compromise: it's worse than you think

The new FISA compromise: it's worse than you think

Telco immunity is the icing, not the cake

Touted by Democratic leaders as a "compromise," it was supported almost unanimously by House Republicans and opposed by a majority of Democrats.

The 114-page bill was pushed through the House so quickly that there was no real time to debate 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 not familiar with the intricacies of surveillance law than the other provisions. But as important as the immunity issue is, the legislation also makes many prospective changes to surveillance law that will profoundly impact our privacy rights for years to come.

Specifically, the new legislation dramatically expands the government's ability to wiretap without meaningful judicial oversight, by redefining "oversight" so that the feds can drag their feet on getting authorization almost indefinitely. It also gives the feds unprecedented new latitude in selecting eavesdropping targets, latitude that could be used to collect information on non-terrorist-related activities like P2P copyright infringement and online gambling. In short, the FISA Amendments Act of 2008 opens up loopholes so large that the feds could drive a truck loaded down with purloined civil liberties through it. So the telecom immunity stuff is just the smoke; let's take a look at the fire.

The importance of judicial scrutiny

The most fundamental question in the FISA debate is whether judicial oversight will be required when the government spies on international communications originating on American soil. FISA has never limited spying on purely foreign communications, but under current law, the government must obtain court approval to tap a phone line or fiber optic cable in the United States, even if the other 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 chafed at these restrictions, insisting that the president has the inherent authority to eavesdrop on suspected terrorists without court oversight. Director of National Intelligence Mike McConnell argues that that the FISA process is so cumbersome that it impedes the intelligence community's efforts to spy on terrorists.


No individual warrants for international calls

When it comes to judicial oversight of domestic-to-foreign calls, the legislation the House passed last month is an unambiguous victory for the White House and a defeat for civil libertarians. The legislation establishes a new procedure whereby the Attorney General and the Director of National Intelligence can sign off on "authorizations" of surveillance programs "targeting people reasonably believed to be located outside the United States." The government is required to submit a "certification" to the FISA court describing the surveillance plan and the "minimization" procedures that will be used to avoid intercepting too many communications of American citizens. However, the government is not required to "identify the specific facilities, places, premises, or property" at which the eavesdropping will occur. The specific eavesdropping targets will be at the NSA's discretion and unreviewed by a judge. Moreover, the judge's review of the government's "certification" is much more limited than the scrutiny now given to FISA applications. The judge is permitted only to confirm that the certification "contains all the required elements," that the targeting procedures are "reasonably designed" to target foreigners, and that minimization procedures have been established.

Crucially, there appears to be no limit to the breadth of "authorizations" the government might issue. So, for example, a single "authorization" might cover the interception of all international traffic passing through AT&T's San Francisco facility, with complex software algorithms deciding which communications are retained for the examination of human analysts. Without a list of specific targets, and without a background in computer programming, a judge is unlikely to be able to evaluate whether such software is properly "targeted" at foreigners.

The House legislation also drastically extends the timeline for reviewing surveillance activities, potentially allowing the government to commence eavesdropping and then drag out judicial review for months. Under existing law, the government must obtain judicial approval within 72 hours of the start of emergency wiretapping. In contrast, the judicial review of "certifications" can stretch out as long as four months.

No "targeting" Americans

The paradoxical consequence is that broader wiretapping orders may be approved more easily than narrower ones. For example, the government could not unilaterally "authorize" the "targeting" of a particular San Francisco resident's international communications. However, it could "authorize" a dragnet surveillance program that intercepted the international communications of all San Francisco residents under the pretext that it was "targeting" any foreign terrorists who might happen to communicate with San Francisco residents.

This is particularly troubling when we remember that in 2002, the Foreign Intelligence Surveillance Court of Review held that FISA does not prohibit coordination between foreign intelligence gathering and domestic law enforcement. That suggests that the FBI could ask the NSA to tailor its filters to intercept evidence of Internet gambling, copyright infringement, or other ordinary crimes. The Americans whose communications were turned over could not be the "target" of the surveillance, but the House legislation requires only that foreign intelligence gathering be "a significant purpose" of eavesdropping programs. If a terrorist surveillance program also catches American citizens who are gambling or infringing copyright law, that's even better!

Democratic leaders have worked hard to portray the legislation as a compromise, but close examination of its provisions suggests that it is an unvarnished victory for President Bush and his allies in Congress. The legislation eliminates meaningful judicial oversight of eavesdropping between Americans citizen and foreigners located overseas and effectively legalizes dragnet surveillance of domestic-to-foreign traffic. It stretches out the judicial review process so much that the government will in many cases be able to complete its surveillance activities before the courts finish deciding on its legality. And Democratic leaders have capitulated on the immunity question, agreeing to language that would almost certainly lead to retroactive immunity for lawbreaking telecom companies.

Many supporters of Barack Obama were dismayed last month when he announced that he would support the legislation. Indeed, more than 20,000 have joined a group on his campaign website urging him to reject the bill; the group is now the largest on his website. But thus far, Obama has maintained his support for the bill.

Last week, an Obama surrogate insisted that "with FISA expiring," the bill was the best Democrats could hope to get. The only problem is that FISA isn't expiring. It was enacted in 1978 and is not scheduled to sunset. The Protect America Act did expire in March, but given that the Bush administration managed to prevent terrorist attacks under FISA for almost six years until last summer's passage of the Protect America Act, it's hard to be too alarmed about living under FISA again for the final six months of Pres. Bush's term.

The Democrats' capitulation is particularly puzzling because, as we've pointed out before, the Democrats' firm stance on FISA this Spring turned out to be a political asset, not a liability. When House Democrats called Pres. Bush's bluff and allowed the Protect America Act to expire in March, it got a wave of positive coverage from the media, which pointed out that the PAA's expiration would have little effect on the government's ability to spy on terrorists. Now that Democratic leaders are switching sides yet again, we've seen the re-emergence of unflattering coverage focusing on the Democrats' weakness on national security issues and lack of party unity. Protecting civil liberties ought to be a matter of principle, but even if Democratic leaders are unmoved by civil liberties concerns, one might have expected them to stand up to the White House based on purely political motivations.

Civil libertarians' last stand against expanded government surveillance will occur in the Senate, in a vote that is expected to occur this week. So far, the determined opposition of a small group of Senators led by Chris Dodd and Russ Feingold has managed to stall the legislation for a couple of weeks. Dodd has signaled that he will continue using every weapon at his disposal to stop the legislation. But with Democratic leaders lining up in support of the bill, Dodd and Feingold face an uphill battle.

Disgusting, we've been sold down a river, and Obama expects Americans to believe that this crap is a "compromise."

Mother fuckers.