Settling the FISA Dispute – Objectively

I’ve debated heavily whether or not I should blog on this topic, particularly as it has entered the political arena where I wish to stay out of. Yet I can no longer stand on the sidelines as news stories, blogs, and websites continue to show the propensity to inaccurately portray the issue (sites such as media matters, USA Today, and the New York Times) dividing people’s opinions on the matter along party lines. This issue has been grossly misrepresented in the media and blogosphere, and I hope this entry will rectify the disinformation. All of these false accusations and allegations by both sides stem from one erroneous assertion: that the Protect America Act (PAA) revised the Foreign Intelligence Surveillance Act of 1978 (FISA) to expand the government’s authority to eavesdrop on Americans’ domestic-to-foreign communications without a warrant. This is absolutely false. The following is an objective look at the FISA debate. I do not address the issue of granting immunity to telecommunication companies who responded to lawful requests by the government.

Before 1978, the Federal Bureau of Investigation and the National Security Agency were tapping the phones of U.S. citizens–people like Dr. Martin Luther King, protesters of the Vietnam War, etc.–based on the logic that the U.S. government was authorized to tap the telephone of foreign powers or agents of a foreign power. So the system was being abused. In 1978, FISA was established to prescribe the procedures for the physical and electronic surveillance and collection of “foreign intelligence information” between or among “foreign powers” on territory under United States control. The Act was amended by the USA PATRIOT Act of 2001 to include non-state actors who inherently are not directly supported by a foreign government. As designed, the law protects the U.S. from foreign/terrorist security threats as well as the civil liberties of persons located in the U.S. Essentially, the law said “if you conduct surveillance in the United States, you’ve got to get a warrant from a special FISA court.”

The law was never designed to require a warrant to conduct surveillance against a foreign target outside the United States. This is where the problem arose. FISA contained provisions tied to specific communication technologies–wire. At that time, there was no Internet and no cell phones–global communication was done through (wireless) satellite relay. Since the Act’s passage, telecommunications technology has significantly changed. Now approximately 90% of the world communication is on fiber optic cables (wire), which will very likely pass through the U.S., which requires a warrant under the law. Thus, the Intelligence Community has been bringing cases before the FISA court for which it was never designed. The newly created Office of the Director of National Intelligence (ODNI), which was established after 9/11 to coordinate the activities of the 16 agencies of the intelligence community, recognized this problem. The Director, Michael McConnell, brought this issue to Congress in 2007, and led effort to amend the Act, which was subsequently accomplished through the Protect America Act (PAA) of 2007. This law allowed wiretapping without a warrant when the target of surveillance is a “foreign intelligence target” located outside the United States, but, in a compromise with Democrats, contained a sunset provision for the new Act.

So, regardless of the mudslinging back and forth, a warrant is still required if surveillance is to be conducted against a U.S. person, period.

See Also:

1. http://www.dni.gov/press_releases/20070802_release.pdf
2. http://fas.org/irp/news/2007/04/doj041307.pdf

 

Re: Some ideas on oversight

I really liked one of Michael Tangi’s recent blogs “Some ideas on oversight,” where he says to “move as much of the IC out of DC as you can as fast as you can. Get people out of the shadow of the political circus tents and they’re less likely to pay attention or feel influenced by it all. Bonus: you radically jack up the resilience of the community to attack, infrastructure failure, or other disaster.”

Moving the IC out of DC would not only reduce the political pressures so influential in DC and make the community more reslient to attack, but it would also greatly expand the pool of potential new employees who may not be willing or able to work in DC. The information-age makes flattening out our physical locations achievable. Physical location should no longer be the primary organization principle. Geat idea. (I believe Chris Rasmussen of NGA has expressed this idea before as well)