I swore I wouldn't post about the FISA update again, but when you gotta...
Earlier, I linked to this diary entry by a Kos poster named drational, even though I thought his overall point was dubious. He has noted the Democratic disunity created by the FISA argument, and he suspects that Rove engineered the whole thing as part of a master scheme.
My initial reaction: This theory is sheer paranoia. No need to blame a malign outside agency for intra-party problems. Progressive purists have always created problems like this, long before Karl Rove got into politics.
But the more I look at the actual text of the law -- and I keep urging you folks to look at it, and you keep refusing to do so -- the more it becomes clear: It's all a ruse.
I beg you people. Open your minds a bit. Just for a minute, as an intellectual exercise. Try to break free of the thought patterns to which you have become accustomed -- and do not presume to predict where I am going with this until I have gotten there. All I am asking is that you consider a new thought.
First: People who have never read the Act keep spreading the rumor that it allows Alberto Gonzales to listen in on all electronic communications without a warrant. That is simply not true. Virtually everyone, left or right, who has read the law will confirm this point.
But many people remain psychologically addicted to the myth. It's the left-wing version of "Saddam was responsible for 9/11."
Second: As I've mentioned twice -- and as a reader helpfully noted yet again -- the American intelligence community has a special relationship with the Brits. (And with the Aussies and the Canadians.) If our spooks want to eavesdrop on domestic groups, they simply trade information with the U.K.'s equivalent of the NSA.
There was no need to update FISA if domestic spying was the objective. So why did they update FISA?
Third: What many commentators (including "experts") have told you is in the law simply is not there.
The media has whipped up an hysterical reaction over an "update" that really updates very little, and which does not function as advertised.
Yes, I identified several problems with the FISA update in earlier posts. But to be truthful, those issues were, for the most part, already present in the 1978 legislation. A Democratic Congress sure did let us down -- three decades ago.
Yes, the new law does permit warrant-free eavesdropping on foreign-domestic conversations. But guess what? So did the 1978 law. (Read it carefully; that's why the miminization procedures were put in there.)
Yes, the update gives Gonzales the ability to initiate warrant-free wiretaps. But guess what? So did the 1978 law.
A hundred bloggers or more have told you that the law allows the AG to "data mine" foreign-to-domestic communications. But the update specifies that all warrantless wiretapping shall undergo the minimization procedures designed to protect the identities of people on the domestic end. Those same procedures were enacted in 1978, in order to keep FISA in line with the Fourth Amendment. Nothing has changed.
A hundred bloggers have said that this update violates the Fourth Amendment. Perhaps -- but only to the degree that the 1978 law did.
I have said that the minimization procedures should be more stringently worded, and updated in light of new technologies. But. Those same procedures existed in the 1978 law. Nothing has changed. If this update had never come to pass, the problem would be exactly the same!
Or take section 105A of the update. Lots of folks have breathlessly proclaimed (as did Balkinization) that this is the section that "simply exempts a huge amount of international communications from FISA altogether."
Oh really? Let's have a look:
"Sec. 105A. Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States."
A hundred bloggers used these words as their excuse to do the Chicken Little routine, and none of them took the obvious step of looking up the definition of electronic surveillance under section 101(f) -- originally 1801(f).
Here it is. I know that you lazy buggers won't read it, but I wish to hell that you would. Because if you did, you would learn something rather jaw-dropping:
As of 1978, the definition of "electronic surveillance" did not apply to persons outside the United States. The wording is absolutely clear and unmistakable. (I won't reprint the relevant section because it is lengthy, but you can click on the link and see for yourself.)
So the section of the law that supposedly gives Gonzales all these horrifying new powers turns out to be an innocuous and unneeded restatement of the original law!
Others, including Balkinization, think that the definition of "foreign intelligence information" is too broad. I agree. But that definition is in the original law. Nothing has changed!
As far as I can see, the update makes only one major change. The original law specified that the AG had to get a warrant to eavesdrop on terrorists overseas. Now he doesn't. (The 1978 law was directed at spy-vs-spy stuff: CIA vs. KGB.)
Newsflash: The Constitution of the United States does not extend to non-U.S persons. No foreigner has Fourth Amendment rights.
I still think the update is bad law. But the more I look at it -- and by this point, I can't keep my eyes off of it -- all of the real problems go back to the original FISA legislation, which should never have hit the books. The entire Act needs a top-to-bottom rewrite.
In short: The major media have lied to you about the sweeping changes brought about by this law. The right-wing media have lied to you. The progressive media have lied to you. They've all conspired to make you think that the text of this law says something other than what it does.
You've been hoodwinked, bamboozled, led astray, run amok.
Thousands of people have become emotionally wedded to a fake scenario: The week-kneed Dems sold us out. They allowed Alberto Gonzales to tap all of our phones and read our email without a warrant. That's the story you people love, and you're sticking to it, regardless of the facts.
Was this situation brought about intentionally? Have we been played? Does the "ruse" theory explain the odd behavior of DNI McConnell in the formulation of S1927?
Could drational's "paranoid" thesis actually have merit?
Just look at the 600-plus comments to his post left by a horde of Dem-hating dullards and dimwits. NONE of them bothered to read the law, and therefore they could not follow his argument. Nearly every single one of his readers missed the point of his piece, even though he wrote in easily comprehensible English.
And I know damn well that many of you are so wedded to the fake scenario -- so wedded to your misplaced outrage -- that you will misunderstand the thesis that I have here tried to present.
Have I stupidly misinterpreted what the law says? If you can prove that I've read this text incorrectly, I will happily apologize and publish what you have to say. I would love -- love -- to print a truly informed rebuttal. BUT YOU MUST SHOW SOME EVIDENCE THAT YOU'VE READ THE DAMNED LAW!
"You" means you. Quoting someone else doesn't cut the mustard. Let's have no excuses for laziness. I am just as busy as any of you people are, and I hate legal language, yet I've managed to plough through the thing. Once again: Your homework is here and here. You can't understand the amendments without reading the original.
16 comments:
We're constantly being played by the Right wing noise machine Joseph and everyone, Roverer knows how to divide us...talk about the Repukes eating their own...ha!
We have people on our side(?) now that are actually thinking about voting for a Ronald Reagan admirer over the most liberal person that has ever been the head of congress since Wallace was VP in the 40's ?, all I can say is good luck, we're going to need it...wow
Flo
...and more people should read John Masheks "The Architect's House Tumbles Down" and "Democrats' Best Move Is to Let Gonzales Stay".
Just more rational thoughts from the irrational beltway.
http://www.usnews.com/blogs/mashek/2007/08/10/the-architects-house-tumbles-down.html?s_cid=rss:the-architects-house-tumbles-down.html
God damnit, here's the tiny url for the link above...sorry
http://tinyurl.com/358fgn
Flo, I am really grateful for your comment, or comments.
The situation is bizarre. Over on Buzzflash just now, I got called a "Republican Mole" because I remain a Democratic partisan.
No, seriously. That's how insane our times have become.
http://www.buzzflash.com/articles/contributors/1227#comment-7379
In my reply, I quote what you said just now. Nancy really is the most liberal person ever to hold that office, so naturally, all good progressives despise her. And they want her replaced by Cindy Sheehan, who is a right-winger.
I think only Cheney's lawyers would call Henry Wallace a congressional leader. That said, I think it was interesting for you to mention him. I always thought he was the archetypical progressive purist jerk. On a practical level, what did his third party run accomplish in 1948? He nearly gave the White House to the GOP, and he made holdover New Dealers look soft on Communism during the rise of McCarthy. And his embrace of Nicholas Roerich exemplifies the linkage between political extremism and New Age woo-woo thought.
That said...
I would really love it if someone out there would show some signs of having read the law. Seriously. I'd pay you ten bucks a paragraph, if I had the dough.
I don't want people to agree with me -- I would love it if someone said, "Cannon, your interpretation of that law is all wet, and here's why..." Just as long as someone out there has actually READ the thing!
Anyone...?
Hello...?
Would it help if I said please?
Normally just lurk, but thought you might appreciate that's it is 4am and you've got me plowing through the blasted FISA. Don't know if I agree with your conclusions yet, but you are right that there is no substitute for reading something for yourself.
I'll TRY to read it tonight Joseph.
My example of Wallace was as close as I could get to Pelosi (notice the connection, soft on communism, soft on terror is what the right wing is trying to nail us on then and now...anything to divert the public attention from what their real intentions are, to break down the middle class IMO) ;>)
Flo
Joseph says..
There was no need to update FISA if domestic spying was the objective. So why did they update FISA?
If it is true that the intell agencies are swapping information with us (and on us), as they snoop..I am not certain that that information would hold up in our courts since it comes through overseas channels..so the domestic agencies need domestic laws to gather information that will stand up in court.
After Hitler tried to takeover Germany with a putsch, (armed rebellion)) and failed and was imprisoned..wherupone he wrote Mein Kampf. While imprisoned, he decided that he could only succeed if he went through the system legally..so he changed straegies and set about to legislate himself into the dictatorship he hungered for. After setting afire the Reichstag and blaming the molems..I mean the Communists, he established his long envisioned police state and went to work clamping down on all dissidents, freemasons, communists, labor leaders, jews, and dwarfs, swamis, pseudo occultists, (his secret society of course was immune for the SS dark arts to monopolize the ethers and brain cells of the nation.
So why the mini history lesson about almost ancient history? Well the Hitlerites that are currently stealing the furniture in our nations capitol, are his offspring and long ago unrolled Hitler's blueprints cause they work so well.
In other words the old fashioned tried and true bologna tactic that Hitler used so successfully in Germany
(thin slices followed by thin slices until finally the whole loaf is finished before the masses wake up from their lethargic slumber)
So now the Supremes are in place..most of the legislators are bought out and the military is howling at the moon and hungry for blood as they don their war helmets redesigned to imitate the nazi helmets of the days of yore..Teutonic Knights on the march again.
Where is Gandalf?
Although our last anonymous poster went off into Weirdsville, his initial point is actually quite good:
"If it is true that the intell agencies are swapping information with us (and on us), as they snoop..I am not certain that that information would hold up in our courts since it comes through overseas channels..so the domestic agencies need domestic laws to gather information that will stand up in court."
Maybe. But with the FISA route, you still cannot legally proceed against anyone within the country unless you get a court order. The minimization rules from 1978 are clear on that.
"no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained."
The exception, of course, occurs in a case of imminent bodily harm or death to any person. We've discussed that before.
So: If Ned in Nebraska tells Frank in Finland something that hints at a plot to counterfeit money, then under the minimization procedures of FISA (1978 as well as 2007), the AG must get a warrant to proceed further against Ned. Otherwise, none of the info will stand up in court.
If a "friendly" intelligence agency warns us about what Ned is up to, that too is cause enough for a warrant. Or so I should think.
So again I ask: What need of new FISA rules, if domestic spying is the point of the thing?
(Before you answer, remember: The commenter talked about action through the courts, and my response was directed toward that issue.)
Newsflash: The Constitution of the United States does not extend to non-U.S persons. No foreigner has Fourth Amendment rights
That's not true.
From this findlaw article by a UCLA professor of international law:
http://writ.news.findlaw.com/commentary/20030409_raustiala.html
Geography and the Law: A Primer
The connection between geography and the law is something few of us think about, though our legal system is replete with implicit assumptions about territory.
For most of our history, the prevailing belief was that U.S. law did not have any force outside the U.S.. Indeed, in 1891 the Supreme Court held that the Bill of Rights did not apply at all when the U.S. government acted against citizens abroad.
Courts of this period also ruled that U.S. statutes did not apply outside our borders. At the same time, however, we maintained special courts abroad for our citizens in countries that were deemed "uncivilized," such as China. Until 1943, the U.S. even had a special District Court for China, which answered to the U.S. Court of Appeals for the Ninth Circuit.
......
The Uneven Erosion of Territoriality
During the Twentieth Century, the view that U.S. law stopped at the water's edge eroded. Courts started to enforce domestic statutes extraterritorially, especially in regulatory areas such as antitrust. As the world economy grew interconnected, the notion that U.S. law was limited to U.S. territory began to seem archaic.
.....
The year 1957 marked a watershed in our conception of legal geography. That year, the Supreme Court's decision in Reid v. Covert expressly overturned the rule that the Bill of Rights did not apply abroad, calling it a relic from another era. Reid declared that "when the Government reaches out to punish a citizen who is abroad, the shield [of] the Bill of Rights...should not be stripped away just because he happens to be in another land."
Technically, the Court's holding was limited to citizens alone. Nevertheless, some of the language in Reid is so sweeping that it strongly suggests an extension to non-citizens. They, too, are protected by the Constitution when they confront the U.S. government within the U.S.; why should its protections be stripped away when they confront the U.S. government abroad, just because they "happen to be in another land?"
Thus, it is not too surprising that, in an unusual case in 1979, U.S. v. Tiede, a U.S. court in occupied Berlin built on Reid's logic, holding that even non-citizens abroad possessed constitutional rights.
The Upshot of Mixed Precedents on the Constitution's Reach
In short, the role of territory in our legal system is unclear, or at least inconsistent.
On the one hand, the basic powers granted by the Constitution are unaffected by geography. Many statutes are routinely applied to conduct abroad. And citizens are clearly protected by the Bill of Rights wherever they go in the world.
On the other hand, while the holdings of Insular Cases have been limited, their basic principle--that territories ruled by the U.S. are constitutionally distinct from the U.S. itself--has not changed. In 1990, the Supreme Court expressly reaffirmed this principle in U.S. v. Verdugo-Urquidez, on the way to ruling that the Fourth Amendment did not apply to a search by U.S. government agents of a non-citizen's property in Mexico.
The Odah decision discussed above - denying the writ of habeas corpus to those on Guantanamo - continues this line of thought. According to this logic, non-citizens abroad lack any constitutional rights, even when they confront the U.S. government there. However, they continue to enjoy constitutional rights within U.S. borders, even when here illegally.
Future Directions: What Will Happen with the Extraterritorial Constitution?
Despite the musty origins of much of the doctrine I have described, the issue of the geographical reach of the Constitution is not arcane. In a globalizing world, the U.S. frequently acts abroad. FBI agents interrogate suspects in Africa; U.S. drug officers collaborate with colleagues in Mexico; and antitrust officials prosecute cartels in Europe. As the war on terror makes clear, the U.S. will act abroad--even rule abroad--when necessary.
The increasing prevalence of these situations ought to make us rethink the constitutional significance of territory. In particular, the notion that the U.S.--which prides itself on the rule of law--can act unfettered by any constitutional consideration simply because it acts extraterritorially is in tension with the core principles of limited government that our nation was founded upon.
Rethinking the role of territory in the law is not easy, but a few considerations are germane.
Some issues are relatively straightforward. U.S. rule in Puerto Rico or the Virgin Islands is effectively indefinite. Given this, it is clearly unjust to treat these areas differently simply because they are outside the territorial boundaries of the 50 states. The Constitution should apply fully and completely wherever the U.S. is sovereign.
Law enforcement presents harder questions. Should the FBI provide Miranda warnings when it interrogates criminal suspects abroad? Recently, in the case of U.S. v. Bin Laden, a federal court said it must. (The defendants involved in the ruling did not include Osama Bin Laden, as the case name might suggest; rather, they were two alleged participants in bombings of U.S. embassies in Kenya and East Africa.)
While the government argued that the obligation to provide such warnings would hobble law enforcement, the court found otherwise. Its ruling, in my view, was reasonable. In general, and where practicable, foreign citizens whom we subject to the coercive force of our criminal law ought to receive the basic protection of our constitution, with respect to the rights of criminal suspects and defendants, as well.
The War on Terror: Do Combatants Have Any Constitutional Rights?
What if, however, the U.S. pursues suspected terrorists abroad not as criminals. but rather as combatants? In that instance, must it still honor their constitutional rights?
A war paradigm rather than a criminal justice paradigm provides a very different set of legal rules. Within the U.S., courts have upheld, albeit with much controversy, treatment for "enemy combatants" - specifically, indefinite detention without access to an attorney that would be unconstitutional in a criminal prosecution. (Joanne Mariner's column on the case of Yaser Hamdi explains the issue in greater detail.)
...............
The upshot of this piece is that Joe's position was once correct, but it has now been outdated by decades of contradicting federal court precedents.
And, please, let us try to remember the original purpose of the FISA law. The 'spies' that we were trying to detect domestically were normally foreign intelligence operatives ASSIGNED TO DIPLOMATIC POSTS, ENJOYING DIPLOMATIC IMMUNITY FROM ALL PROSECUTION. The most that we would do upon suspicion or even proof of espionage was to demand they leave this country.
Therefore, FISA-approved investigations were NOT to develop criminal prosecution cases, but rather to counter spying efforts from persons who could not have prosecutions brought against them in the first place-- deportation as persona non grata would be the only remedy available.
Over time, FISA warrant requests became misused, with lying representations made to that court for purposes of using the more lax standards appropriate to intelligence investigations for actual criminal investigations. The FISA court eventually took notice, and rejected the few that they ever rejected on the basis of bad faith by the federal prosecutors. As the standard slid, so too did the DOJ use the enhanced Patriot Act powers for routine criminal matters not involving terrorism, in contradiction to the many assurances prior to the act and after that they would restrict their enhanced powers to terrorism suspects only.
However, as the plain language of the Constitution refers to 'persons' and not only 'citizens' (although they specify citizens plainly enough when called for, as in eligibility for elective office), foreigners in this country surely do have the same Constitutional rights under the 4th amendment, and even in this terror-hysteria-driven environment, the court ruled that non-citizens in a foreign land have even MIRANDA RIGHTS.
sofla
Joseph says..
Although our last anonymous poster went off into Weirdsville, his initial point is actually quite good:
Joseph please (please) explain what is weird about that post so I can tailor it to the specifics needed for the less imaginative..or less studied. I of course realize that the n word (Nazi) is way politically nicorrect..but..it is still true and factual.
The less politically "Incorrect" term, that is now almost acceptable, (only in the past couple years) is fascists which is a polite term describing the corporate state which we have been citizens of for many years now.
The advanced stage of fascism is Nazi- ism where the faceless members of multinational cartels, corporations, oligarchs, bankers, and the super rich create the charismatic and heroic figures that are worshipped by the masses based on racial distinctions and nominal superpowers like absolute control over the media and the brains of the masses. Right?
Here is how the NY Times editorial today characterizes the changes in FISA put through by the most recent law:
Just before rushing off to their vacations, and campaign fund-raising, both houses tried to fix an anachronism in the 1978 Foreign Intelligence Surveillance Act, which requires the government to get a warrant to eavesdrop on conversations and e-mail messages if one of the people communicating is inside the United States. The court that enforces the law concluded recently that warrants also are required to intercept messages if the people are outside the United States, but their communications are routed through data exchanges here.
The House and Senate had sensible bills trying to fix that Internet-age problem, which did not exist in 1978. But that wasn’t enough for Mr. Bush and his aides, who whipped up their usual brew of fear to kill off those bills. Then they cowed the Democrats into passing a bill giving Mr. Bush powers that go beyond even the illegal wiretapping he has been doing since the 9/11 attacks.
The new measure eviscerates the protections of FISA, allowing the attorney general to decide when to eavesdrop — without a warrant — on any telephone call or e-mail message, so long as one of the people communicating is “reasonably believed” to be outside the country. The courts have no real power over such operations.
[unquote]
That summarizes the issue, and describes the untoward and additional powers that AG Gonzales has indeed been granted beyond the status quo ante in the law: he and he alone, without meaningful judicial review, can determine who is 'reasonably believed to be' in a foreign land, and therefore, subject to a warrantless wiretap. This would suggest we are entirely at the mercy of the good faith of the AG, and this administration, without the shield of law or judicial oversight.
sofla
sofla, as Winston Churchill once said (I'm doing this from memory) "I am always willing to learn, even if I do not always like being taught." Thank you so much for the citation of that FindLaw article, and for your own comments. This is precisely the sort of informed response we need.
If I understand you properly, the U.S. v. Verdugo-Urquidez would seem most applicable to the FISA controversy. At that would indicate that foreigners do to have Fourth Amendment rights. But I must admit that based on the history you have given me, the whole question of the Constitution and geography is more complex than one would at first presume.
Now, as you know, I did originally state that -- regardless of what the Constitution says -- the FISA law should be more restrictive on the type of foreigner who can be targeted. It all comes down to the question of what constitutes "foreign intelligence information," which receives a special definition in the statute. It needs tightening -- and (this is my larger point) has needed tightening since 1978.
There is also the question of international treaty. Even if you toss out Geneva -- which I say we cannot -- we are, if nothing else, signatory the United Nations Universal Declaration of Human Rights.
Gitmo, which you cite, is in direct contravention to articles 5, 9 and 10 of that noble declaration.
But does any part of it apply to FISA? Here it is...
http://www.un.org/Overview/rights.html
And bingo -- Article 12 reads:
"No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."
So how do we square the espionage apparatus of this nation -- and of other nations -- with that article? I don't see how!
As for your other points:
You are right that in the old days of CIA-v-KGB, spies generally used diplomatic cover. But there have always been those who operated NOC -- Valerie Plame, for example. And the FISA law does outline the steps needed to build a courtroom-quality case.
In your second post, unfortunately, you go off track.
I really think the reportage by the New York Times and the Washington Post caused all the problems here. I am surprised that people who hold those journals in some suspicion nevertheless prefer to accept what they have to say about the law, as opposed to reading the law for themselves.
Did you take Judy Miller at face value? How do you really know that you aren't being "Millered" in this case?
"The new measure eviscerates the protections of FISA, allowing the attorney general to decide when to eavesdrop — without a warrant — on any telephone call or e-mail message, so long as one of the people communicating is “reasonably believed” to be outside the country. The courts have no real power over such operations."
My point was that this problem of foreign-domestic communications -- and it is indeed a problem -- was inherent in the original law. The technology has changed, but the fundamental issue remains the same, and the (arguably inadequate) solution to it remains the same.
If you get all your info from the NYT, you won't know that.
The NYT makes no reference to minimization. I keep on telling you about that, and you keep on refusing to look at it, no matter how many times I link to it.
Here's a simple test to determine whether a post on FISA is worth reading: Use your browser's word search function to see if the word "minimization" appears. If not, ignore it.
And frankly, sofla, a smart person like you should know better. What matters is the text of the law, not the NYT's misleading summary.
There was a movie back in the 1980s -- I can't recall the name -- in which a teacher goes crazy and forces his students at gunpoint to do the reading which they won't do under any other circumstances. I'm beginning to feel that way.
sofla, please answer a simple question honestly. Why won't you read the law?
I'm not going to hold a gun to your head. But if you were in town, I'd buy you a really great burrito if you answered my plea to read the thing.
First, let me say that I did read the law. Thank you Joseph for the easy link and the encouragement to do so.
Before reading the law, I wondered if the need to update FISA has anything to do with domestic spying at all. After reading it, I'm convinced that American citizens are simply being used to cast a wider net.
The number and range of threats against the US has increased exponentially, thanks to our invasion of Iraq and mind-numbing, unconditional support of Israel.
The number of "high value targets" has likewise increased, and includes those who would seek to undermine our financial markets on a massive scale.
Eavesdropping on international conversations between US citizens and their relatives or associates in, say Israel, Iran, China, Australia, or Pakistan could conceivably yield an incidental finding or two. These may be all we have left, which is why so much of this "debate" was actually decided in private, and they only thing we got to witness was the end result on C-Span.
Our acute vulnerability at this point in history is something that neither the neocons nor the Democrats will publicly acknowledge. However, it would explain a lot. It's actually quite scary, as a lot of things are these days, because so much is left for speculation and blind trust.
Kim in PA
The legal framework is not the key point here: the practical effects are. In real terms there were already sufficient powers to track and prosecute terrorists anywhere. The changes in the legislation empower extensive surveillance of US citizens. It's not the cases that go to court that are of concern here, it's the ones involving domestic political control which are unrelated to the monitoring of criminal activities. Gonzales taps US citizens for party political reasons and mostly doesn't get caught (since no-one hears about it). Occasionally a case becomes public and at that point Gonzales needs plausible deniability. He gets that in the current legislation. Why do you think Bush forced this bill? Does anyone, anywhere believe it will bring even one terrorist to justice?
No, anon, the legal framework IS the issue here. I came to talk about the text of a law. That is the purpose of this series of posts. The US Code will -- god willing -- long outlast this presidency.
The issue of whether Gonzalez has spied on political opponents is separate.
As you know, I have suggested (but not stated) elsewhere that he may have done just that in 2004. I think that such an abuse may be at the heart of the "race to the hospital" story.
But let's get real. Such activity is legal in NO variation of the FISA law.
And one of the things that continues to piss me off is the continuation of the myth that the 2007 update allows the AG to eavesdrop on anyone, anywhere, for any reason. It just isn't true, yet people keep saying it.
This assertion is, as I have said before, the left-wing version of the "Saddam caused 911" meme.
First of all, I'd like to issue an invitation to everyone debating this legislation here and elsewhere to consider its implications with respect to at least some stuff OTHER THAN telephone conversations and e-mailed text.
Because it obviously has some. And if (and I do emphatically mean "if") I understand the legal definition of "electronic communications" outside of FISA, which is where the new legislation puts it, it means, inter alia, everything that is either transmitted or stored digitally by any company in any way, at any time, with the sole exception of the electronic transfer of funds.
In short, potentially any damn thing contained in the data or metadata of any activity that generates a transmitted/stored digital record, which is almost all human activity other than biological. The assumption that the aim of the legislation is limited to enabling more and better wiretapping excludes a whole lot of potential uses and abuses, therefore. I'm just saying.
Also....Is there any precedent for what constitutes a legal basis for forming a reasonable belief that something outside the United States is in play with regard to electronic communications? The criteria are not defined by anything I have read so far, and I have been reading quite a bit of criminal code. I'd very much like to know, because if, absent precedent, it's up, say, the FBI to make that call, it's legitimately part of their mandate to push the standard down as far as they can.
Which is distressing, because other than the AG and his crack senior staff, I can't imagine who else's call it could possibly be, or even who could successfully claim any standing to challenge its unknown meaning. I guess that it's arguably unconstitutionally vague. But by the same token, the material requirements for developing a case in which that argument would stike a judge as significant are systemically unavailable to just about everyone who might be inclined to try.*
Which, to me at least, is an exponentially more ginormous threat than any debate over whose phone can be tapped. The virtual terrain over which from all along the watchtower Special Agents from the counterintelligence division keep their view is so vast that if you don't know how their reasonable beliefs are formed, you can't know if your reasonable expectations of privacy are still reasonable.
I'd also really, really like to hear from someone who could speak with authority to what's definitely new, irrespective of whether the law is, in any meaningful way. From where I stand, which is in the Plaza of Total Ignorance, it seems that the standard governing the process whereby the hamsters that move electronic communications through the series of tubes from a place that might be outside the United States to the attention of Senator Ted Stevens (Big Trouble-AK) is a series of protocols called SS#7.
Based on the authority of being fluent in English in general, if not very confident about what precisely the hell a protocol is in this context, my feeble understanding is that under this system, the address code indicating the origin of all internet and cell phone traffic in the United States appears as "international" by default.
I have no idea what that actually connotes to someone who understands it. But it strikes me as at least plausible that Special Agent John Doe is about as well-informed in this area as I am.
So.
Is there any statute or guideline that clearly states that when he sees a print-out of meta-data showing that the electronic communication in question originated from an address coded "international," it is (or is not) reasonable for him to believe it came from outside of the United States?
That's not a rhetorical question. I haven't finished looking into every nook and cranny of every piece of common law that might address it yet. And I might not recognize one if I found it. But I definitely haven't seen an obvious answer so far.
Does anyone know?
*If you didn't fall asleep 700 words before reaching this asterisk, please join me in stipulating that I can't rule out the possibility that in some alternate dimension such an argument is being made right now by a disincarnate version of the late Mel Belli. Primarily because it's a comforting thought, albeit one that is totally (as it were) immaterial to whatever fresh statutory hell is in effect on this plane of existence. It's also a joke. So please be gentle. Because, you know, I reasonably believe in its value as humor, having no basis in reason other than what seems funny to me. It's not like it's a constitutional issue, or anything.
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