FISA: What Isn’t Electronic Surveillance?

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…

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.”