Perry E. Metzger
Electronic surveillance means (1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by ...
Dear Perry, et al:
I think you're missing the key clue as to what was actually done, and thus why it was done in the manner chosen, and why it is now being defended by the Bush Administration as being legal.
All of the statutes quoted, and every other one of which I am aware, prohibit the INTERCEPTION of the CONTENT of communications.
Nothing presently prohibits the automated processing of the content via software when the content is not captured/intercepted, nor excerpted/preserved for law enforcement's review. A computer system, designed to circumvent the intent but comply with the letter of present law, can legally do what a person cannot.
Furthermore, courts in jurisdictions in which I have worked are presently ruling that with respect to electronic equivalents of conventional PSTN pen register intercepts, all information considered to be 'routing' information rather than CONTENT of electronic communications is fair game, and may not even require a warrant, anywhere, with respect to anyone.
At the very least, there is serious gray area in the lack of clear definition of the electronic communication equivalent to the conventional PSTN pen register.
I suspect that what is actually being intercepted is not content, but rather is data that the administration considers to be network routing information -- e-mail and IP addresses, basically. Maybe domain names of Web sites being visited.
Read more about Carnivore's known capabilities from several years ago with respect to its pen register mode of operation:
http://www.epic.org/privacy/carnivore
Then consider the consequences of the absence of explicit mention of 'electronic communications equivalent of a pen register' or the words 'or network routing information' in any of the statutes you mentioned.
I wouldn't be surprised at all if the administration ultimately argues that the data they intercepted without a warrant, to the extent that ANY data was 'intercepted', was not 'content' that the sender/recipient intended to communicate to/from the other party. Furthermore they could take the position that there is no need for a warrant for 'electronic communication pen registers' as the pen register statutes are cleverly ambiguous and (probably intentionally) antiquated...
Regards,
Jason Coombs
jasonc@science.org
-----Original Message-----
From: "J.A. Terranson"
The National Review Byron York [...] At his news conference this morning, the president explained that he believed the U.S. government had to "be able to act fast" to intercept the "international communications of people with known links to al Qaeda." "Al Qaeda was not a conventional enemy," Bush said. "This new threat required us to think and act differently."
The FISA law already allows taps to go on for 72 hours before a court is informed. That's three days. In three days people can't fill in a form and deliver it to the FISA court? The FISC has approved 15,000 wiretaps and rejected less than ten in its history.
But there's more to the story than that. In 2002, when the president made his decision, there was widespread, bipartisan frustration with the slowness and inefficiency of the bureaucracy involved in seeking warrants from the special intelligence court, known as the FISA court.
It is so inefficient that you don't even have to ask for THREE DAYS. Three days isn't enough time? More to the point, even if the President thinks something is "inefficient", the law is the law. If it says "those who do not seek a FISC warrant go to jail for five years", the President has to obey.
People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court. "It takes days, sometimes weeks, to get the application for FISA together," says one source. "It's not so much that the court doesn't grant them quickly, it's that it takes a long time to get to the court.
Of course, this is in fact untrue. FISA requests are as fast as the Department of Justice and NSA wish them to be. Of course, even if it were true, the law is clear, and the President is not the legislature. The administration had years and years in which to ask Congress to alter the law. It did not do so. It chose to simply solicit the commission of felonies. All these comments about "slowness" and "cumbersomeness" etc. are attempts by the magician to keep your eye away from what he does not want you to see. Do not be distracted. A felony was solicited by the President and committed by employees of the NSA. Do not let them distract you. Keep your eye on the target.
And even though the attorney general has the authority in some cases to undertake surveillance immediately, and then seek an emergency warrant, that process is just as cumbersome as the normal way of doing things.
Actually, the law doesn't say "in some cases". Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that (1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and (2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists; he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance. So it isn't "in some cases" -- it is basically any time the Attorney General decides to rubber stamp it. Again, don't be fooled by the smokescreen. Read the law yourself. See for yourself that the President has disobeyed a criminal statute.
Lawmakers of both parties recognized the problem in the months after the September 11 terrorist attacks. They pointed to the case of Coleen Rowley, the FBI agent who ran up against a number roadblocks in her effort to secure a FISA warrant in the case of Zacarias Moussaoui, the al Qaeda operative who had taken flight training in preparation for the hijackings. Investigators wanted to study the contents of Moussaoui's laptop computer, but the FBI bureaucracy involved in applying for a FISA warrant was stifling, and there were real questions about whether investigators could meet the FISA court's probable-cause standard for granting a warrant.
A fascinating story, except it is on its face false. FISA warrants are for intercepting communications, not for examining laptops: Electronic surveillance means (1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; (2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18; (3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or (4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes. Also, Mr. Moussaoui was not a US person, and the Attorney General can authorized anything he likes without a court order if: [...]there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party[...] As I said, the story in question is completely false on its face. The people who wrote it are counting on you not reading the law, not informing yourself, not knowing what is true and what is not. Do not be fooled. Read the law for yourself. In any case, cumbersome and unpleasant or not, the law is still in force, and the law says that the President of the United States committed a felony and solicited the commission of felonies.
Bush's order, it appears, was an attempt to change that situation. Especially before, and even after, passage of the Patriot Act, the FISA bureaucracy and the agencies that dealt with it were too unwieldy to handle some fast-moving intelligence cases.
There is no "FISA bureaucracy". What is there? There is a court with eleven judges. That's it: The Chief Justice of the United States shall publicly designate 11 district court judges from seven of the United States judicial circuits of whom no fewer than 3 shall reside within 20 miles of the District of Columbia who shall constitute a court which shall have jurisdiction to hear applications for and grant orders approving electronic surveillance anywhere within the United States under the procedures set forth in this chapter[...] That is the "FISA bureaucracy" they speak of. Again, do not be fooled. Do not allow the spin masters to convince you that black is white and white is black. Read the law for yourself, understand for yourself what has happened. http://www.law.cornell.edu/uscode/html/uscode50/usc_sup_01_50_10_36_20_I.htm... Perry _______________________________________________ Antisocial mailing list Antisocial@mfn.org http://lists.mfn.org/mailman/listinfo/antisocial .