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...
That's a very broad provision, and, again, experts disagree about from whom such "foreign intelligence information" can be acquired. "Could break into your house and rummage around? Probably not," says a senior congressional source. "The more likely abuse here is to use their physical search authority and pen registers or trap-and-trace" -- i.e., devices that monitor outgoing and incoming calls from and to a particularly phone number -- "to get into databases and monitor your internet usage, like your internet history, or your email."
Most experts seem to think that the likeliest interpretation of this provision is that the DNI and the Attorney General can demand information from your phone company or your Internet Service Provider without a warrant, provided that they say that the information they're seeking is "concerning" a foreign-based investigation. "We're talking about them going to Verizon, AOL or Google, and saying, 'Here's the authority by the DNI required for you to comply,'" says Rotenberg. "This is about ISPs. That's where the action is." No wonder President Bush said that he wants liability protection from lawsuits against communication companies -- or, as he put it, "those who are alleged to have assisted our Nation following the attacks of September 11, 2001." (See Balkinization for more on that elegant locution.)
Says the Congressional source, "It's up to Google to decide whether to contest that request." That is, you don't know if your overseas communication information has been requested by the government, so you don't have legal standing to bring suit against the government. Instead, your phone company or ISP has to decide whether to challenge the basis of the request. According to the New York Times, some telecoms already feel uncomfortable with the new surveillance requirements.
Democratic Congressional aides said Sunday that some telecommunications company officials had told Congressional leaders that they were unhappy with that provision in the bill and might challenge the new law in court. The aides said the telecommunications companies had told lawmakers that they would rather have a court-approved warrant ordering them to comply.
So telecoms may now be the ones we look to to bolster civil liberties, even as the President wants to exempt them from liability for complying -- allegedly! -- with warrantless surveillance before it was explicitly authorized by Congress. Rarely has more hinged on a company living up to the maxim, "Don't Be Evil."