A Stitch in Haste

As the Bush administration turns up the volume on its despicable lies about the purported implications of the expiration of the insolently named "Protect America Act," it has become necessary to review what is and is not still the law regarding War on Terror eavesdropping.

First and foremost: FISA did not expire, the PAA expired. FISA* has no sunset clause; it is in full force until repealed or amended. Administration apologists have been relentless in propagating this lie.

And what does FISA provide?

1. Foreign-to-foreign communications are not protected from surveillance. That has always the case, and is still the case now.

2. When foreign-to-domestic communications are at issue, the government does not have to wait for a warrant from the Foreign Intelligence Surveillance Court. The government can initiate the wiretap and then seek a retroactive warrant from the FISA Court up to 72 hours later. That was the case before PAA was enacted and is still the case after PAA expired.

So again, when National Intelligence Director Mike McConnell and Attorney General Michael Mukasey insist that

"the delay resulting from this discussion impaired our ability to cover foreign intelligence targets, which resulted in missed intelligence information"

what they are really saying is that they themselves refused to comply with FISA's modest requirement that the government return to seeking retroactive warrants from the FISA Court (which, recall, are approved, literally, over 99.95% of the time).

So explain to me again who is putting Americans at risk here?

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A few reminders, given how brazenly the Bush administration is flat-out lying about the warrantless wiretapping question:

--FISA is not a "Carter-era" law; it is a Bush-era law.

--When Administration officials use the term "terrorist," remember that they are conveniently omitting the words "alleged" or "suspected." This is a subterfuge they also use in another context.

--The original violation of FISA, the "Terrorist Surveillance Program," involved eavesdropping on American citizens on American soil. It defies and defiles every dictionary in the world to label such activities as "foreign intelligence" or "international communications." It was domestic spying, pure and simple.

--The Protect America Act**, meanwhile, is about one thing and one thing only: turning an undemanding, de minimis retroactive FISA warrant requirement into no requirement at all.

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Meanwhile, the program has resumed, which I suppose means that government has also resumed paying its phone bill.

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My old fifty-post chain on the warrantless wiretapping scandal here.

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*Foreign Intelligence Surveillance Act, 50 U.S.C. 1801 et seq.
**Public Law No. 110-55 (PDF - 7 pages).

Most private telephone subscribers may have their own numbers listed in a publicly distributed directory, but I doubt there are any who would be happy to have broadcast to the world a list of the local or long distance numbers they have called. This is not because such a list might in some sense be incriminating, but because it easily could reveal the identities of the persons and the places called, and thus reveal the most intimate details of a person's life.
--Smith v. Maryland (Stewart, J., dissenting)

Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes.
--Smith v. Maryland (Marshall, J., dissenting)

The Wall Street Journal has a feature story today on the federal government's increasing use of data mining (i.e., gathering random information about vast numbers of citizens, without any individualized suspicion of wrongdoing) in the War or Terror:

According to current and former intelligence officials, the [NSA] now monitors huge volumes of records of domestic emails and Internet searches as well as bank transfers, credit-card transactions, travel and telephone records. The NSA receives this so called "transactional" data from other agencies or private companies, and its sophisticated software programs analyze the various transactions for suspicious patterns. Then they spit out leads to be explored by counterterrorism programs across the U.S. government, such as the NSA's own Terrorist Surveillance Program, formed to intercept phone calls and emails between the U.S. and overseas without a judge's approval when a link to al Qaeda is suspected.
...
A number of NSA employees have expressed concerns that the agency may be overstepping its authority by veering into domestic surveillance. And the constitutional question of whether the government can examine such a large array of information without violating an individual's reasonable expectation of privacy "has never really been resolved," said Suzanne Spaulding, a national-security lawyer who has worked for both parties on Capitol Hill.

The article mentions a famous — and atrocious — Supreme Court case from 1979, Smith v. Maryland*. The key holding in that case was that, since a person must "tell the phone company what number she is dialing," she cannot have any reasonable expectation of privacy in that phone number, and that the government can therefore demand that phone number from the phone company without a warrant based upon probable cause.

Stated differently, the Court held, preposterously, that there is no difference between AT&T knowing whom you're calling and the government knowing it.

(This idea that "your utility bills belong to the utility and not to you" is, incidentally, also the basis for "heat lamp warrants": the use by drug warriors of unusually high electricity bills — records obtained without a warrant, of course — as evidence to bring to a judge to obtain a search warrant for the premises.)

Beyond the facial (i.e., telephonic) absurdity of Smith v. Maryland at the time, are the ominous new implications it has for modern electronic communications. To posit that the government can obtain your phone logs is bad enough, but that still does not mean that the government can listen in on your phone calls without a warrant (ignoring for the moment unconstitutional violations of FISA).

But the information contained in, e.g., an email header often contains information that a phone number does not: the name (not just the email address) of the recipient, the subject matter, whether it is a reply or forwarded email, the size and file names of attachments, etc. For the government to simply declare, "We can access that header without a warrant — see Smith v. Maryland," is insolent obliviousness.

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Equally insolent is the notion that "driftnet" surveillance — "get everyone's data and let the computers sort it out" — is somehow not problematic. This is the asinine proposition of, among others, Richard Posner: that "a computer can't violate your rights."

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More thoughts from Threat Level, Deep Links, Concurring Opinions.

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*Smith v. Maryland, 442 U.S. 735 (1979)