Time for Democrats to Lead on FISA

The Republicans are scaremongring, but the Democrats are cowering

In defiance of both Ecclesiastes and The Byrds, the waning of the Senate season this week gives civil libertarians cause to dance and reason to mourn. Celebration is in order thanks in large part to the efforts of Sen. Chris Dodd (D-Conn.), whose determination to block an odious amendment to the Foreign Intelligence Surveillance Act (FISA) forced the bill to be tabled until the new year. Jig yields to dirge when you consider that as of late 2007, this is what counts as a major victory for privacy.

The most depressing thing about this triumph is not that it had to be yanked from the jaws of a Democratic majority leader bent on advancing the White House's preferred legislation over a relatively sane alternative. It's not that Sens. Hillary Clinton and Barack Obama offered their colleague support in spirit, but kept their bodies in Iowa. It's not even the prospect of starting the fight anew in January, with fresh grim warnings from the likes of Orrin Hatch (R-Utah) that "we can't even begin to talk about the dangers that will come" should any bill but the president's pass. No, the real reason to reach for a stiff drink is that the dealbreaker, the rallying point for opposition to a potentially vast expansion of executive power to spy on Americans, was the important but ultimately ancillary question of telecom immunity.

Recent press coverage sometimes leaves the impression that the only controversial element of surveillance reform is whether to grant telecommunications providers retroactive immunity against class action suits stemming from their complicity in the National Security Agency's extralegal program of warrantless wiretaps. Many observers believe that the White House's insistence on immunity—backed by a presidential veto threat—is responsible for stalling otherwise viable legislation. "A lot of people would probably support giving the government broader authority if they would decouple that issue from the immunity question," says Michelle Richardson, a legislative consultant for the American Civil Liberties Union, "so they're probably shooting themselves in the foot by forcing it to go forward like this."

Make no mistake, retroactive immunity richly deserves to die an inglorious death, for the very reasons immunity advocates advance in its favor. Allowing civil suits to go forward would lead to the disclosure of more information about the scope of unauthorized domestic spying—based not on an executive calculation of the political advantage to be gained from a leak, but an impartial assessment of the security risk. It would deter telecom firms from "cooperating with law enforcement," when law enforcement agencies are conducting illegal surveillance. That sort of deterrence is, presumably, the whole point of laws forbidding revelation of communications data without a court order. But this seems somewhat less urgent if Congress is prepared to simply eliminate the court order requirement for the very types of wiretaps the NSA is known to have conducted, as the version of FISA reform introduced in the Senate would do. To frame it in Republican-grokkable terms, there's little point in quibbling over an amnesty for illegal immigrants if you're about to implement an open-borders policy.

The focus on immunity is understandable from a public relations perspective. The conflict is relatively easy to explain, and fits comfortably with hardwired partisan attitudes about big corporations. It's another matter entirely to begin untangling the byzantine laws governing America's secretive Foreign Intelligence Surveillance Courts. This was vividly demonstrated recently when, in a Belushian act of protracted slapstick seppuku, Time columnist Joe Klein's last lonely shred of credibility impaled itself on the issue. But the upshot in this case has been, in the words of Electronic Frontier Foundation Legal Director Cindy Cohn, a "huge disconnect between the political debate and what insiders know is going on."

So what is going on? The Bush administration has been striving mightily to persuade Americans that FISA reform—specifically the bill reported out by the Senate Select Committee on Intelligence—has no such drastic consequences. "Help Me Spy on Al Qaeda," sounds Director of National Intelligence Mike McConnell's plaintive cry. "There is such a thing as irrational fear of government" harrumphs Orrin Hatch, denouncing "fear-mongering" on "partisan blogs." On this account, the changes to FISA sought by the White House do little more than reverse a recent, disastrous secret court ruling that required intelligence agencies to file onerous FISA warrant applications before intercepting any communications from American telecom switches, even when both parties to the communication are located overseas. Since such communications have not traditionally been bound by the restrictions imposed on domestic surveillance, FISA "modernization" would simply restore a balance upset by changing technology. And since the Protect America Act, hastily passed in August as a stopgap response to this ruling, is set to expire in February, reform must come quickly or cripple intelligence efforts to keep America safe.

An imperfect but serviceable heuristic when evaluating statements of this sort is to suppose that all White House appointees have been recruited from that village, occasionally encountered in logic puzzles, whose inhabitants are all condemned to speak the precise opposite of the truth. While we can't know for sure so long as the courts refuse to release the opinion in question, the idea that the Foreign Intelligence Surveillance Court has abruptly discovered FISA's applicability to purely foreign traffic on U.S. wires is approximately as plausible as the College of Cardinals announcing the elevation of Richard Dawkins to the throne of Saint Peter. An attorney for the Congressional Research Service tasked with assessing the need for FISA "modernization" strained perceptibly to imagine a statutory basis for such a view, finally speculating that "might be argued that the language... might encompass the possibility of reaching some foreign to foreign communications in limited circumstances." Recently, some on the Hill have begun to raise belated doubts about the completeness and veracity of the initial account, noting that the administration does not appear to have appealed this devastating decision before publicly punching the panic button. In any event, this putative problem would be addressed by either a far more moderate bill reported out by the Judiciary Committee or the RESTORE Act passed in the House, both rejected by the White House.

What the administration is actually demanding is a broad new executive power to collect communications between Americans and persons abroad, subject to almost no meaningful supervision by the courts. This is not merely the power to "listen to the bad guys." In fact, there are no references to "bad guys" (a legal term meaning "evildoers") in any of the FISA reform bills—nor, indeed, to terrorism, Islamofascists, or ticking nuclear bombs that will, with apodictic certainty, obliterate Manhattan unless you immediately strangle a puppy. Instead, the Intel Committee's bill would permit the Attorney General and the Director of National Intelligence to "target" persons reasonably believed to be outside the U.S. for surveillance without court approval, and to demand the compliance of telecommunications providers in acquiring the "targeted" communications, including communications with Americans. Nothing in the law requires that either party be a terrorist, suspected terrorist, or remotely connected to terror. It is enough that a "significant purpose" of the eavesdropping be to gather "foreign intelligence," which includes any information relevant to U.S. international relations.

Judicial oversight of this surveillance would be minimal, and essentially meaningless. The Attorney General must develop protocols for "targeting" and "minimization" to be reviewed by the FISA Court. But review of the targeting procedures is to be concerned with their effectiveness at establishing that targets are located abroad. Even here, there may be a loophole: David Kris, until 2003 one of the Justice Department's top national security attorneys, argues that because FISA's definition of "person" includes groups and corporate entities, even acquisition of purely domestic communications might be construed as "targeting" a "foreign" person. Minimization rules, meant to limit the use of information about Americans picked up "incidentally" while "targeting" foreigners, are equally hollow. The FISA Court is empowered to review the rules intelligence agencies follow, but not how well they are followed in practice. And minimization rules are required to allow for the "retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes." Nothing prevents the use in criminal prosecution of an American's conversations about his marijuana garden or his Swiss bank account.

Indeed, nothing prevents intelligence officials from continuing to listen to that American's conversations for that very reason, so long as foreign intelligence was a "significant purpose" of the initial investigation and the American is not "targeted" directly. A provision of the Judiciary Committee's alternative bill would require that a traditional FISA warrant, supported by probable cause, be obtained once monitoring of a U.S. person became a "significant purpose" of collection, but the White House has declared that provision unacceptable.

Courts can intervene if a telecommunication provider chooses to appeal an order to provide access to communications. But this, too, is phantom oversight. The government has shown a willingness to strong-arm recalcitrant telecom firms, creating a powerful incentive not to make waves. And since telecom providers would be both compensated and immunized from legal liability for their compliance, only truly heroic public spiritedness or massive stupidity could motivate invocation of this right.

The threat of such nominally "incidental" collection of Americans' information may not appear significant to advocates of "modernization," who seem to imagine surveillance being carried out on the quaint model of The Lives of Others, on which some sensitive soul occasionally glances up from his Brecht poems to check the alligator clips connected to his target's copper phone line. The Senate legislation would license eavesdropping on a potentially far more massive scale. Here, again, to determine what kind of program the administration contemplates, it's useful to see what legislative alternatives they would reject. A provision in the Judiciary Committee bill specifies that acquisitions of part-foreign, part-domestic conversations would be "limited to communications to which at least one party is a specific individual target who is reasonably believed to be located outside the United States." It might seem, at first blush, that this is precisely what is at issue. But the White House, rather opaquely, declares this restriction "unacceptable because it could hamper U.S. intelligence operations that are currently authorized to be conducted overseas and that could be conducted more effectively from the United States without harming U.S. privacy rights."

This objection is unintelligible unless at least some surveillance is, by some Zen slight of hand, meant to be "targeted" without a "specific target." Legal scholar Orin Kerr speculates that the earlier program invalidated by the FISA Court, said to rely on "innovative" legal theories, involved "anticipatory" warrants specifying broad conditions that would trigger data collection, rather than particular targets. Combining general trigger conditions for communications acquisition with sophisticated realtime filtering technology—and we have at least vague hints of such technology being used from the testimony of AT&T technician Mark Klein and NSA whistleblower Russell Tice—could, at least in principle, yield unchecked, warrantless "vacuum cleaner" collection of truly vast amounts of international communications data.

This is what might be possible within the limits of the Senate bill's language. Yet, paradoxically, amending FISA to include this new category of surveillance could simultaneously remove them from FISA's exclusive purview. For while it may appear that the amendment specifies rules for a specific type of electronic surveillance, it actually stipulates that spying on targets approved by the Attorney General subject to the appropriate procedures ceases to count as electronic surveillance at all, at least for most of FISA's purposes. This is crucial because FISA provides the "exclusive means" by which electronic surveillance may be conducted; by altering that definition, the Senate FISA amendments would simultaneously place these searches within FISA's scope and, potentially, beyond it. While this Escher-like structure is probably fascinating to contemplate while high, it opens the door to a new round of extrajudicial, extrastatutory surveillance programs.

When the Senate reconvenes in January, we can rest assured that President Bush will again threaten doom unless legislation meeting his exacting demands is approved. It is time for Congress to stop allowing itself to be manipulated by such manufactured crises. The Senate should pass legislation that clearly permits unrestricted monitoring of purely foreign traffic, and provides for meaningful oversight of surveillance that "targets" foreigners but snares Americans. If George Bush wants to brandish his veto pen amid dark portents, he should at least be forced to explain why he fears American judges more than Islamist terrorists.

Julian Sanchez is a contributing editor for reason.

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  • ||

    No, the real reason to reach for a stiff drink is that the dealbreaker, the rallying point for opposition to a potentially vast expansion of executive power to spy on Americans, was the important but ultimately ancillary question of telecom immunity.

    In fairness, Russ Feingold has been talking consistently about more than just the telecom immunity.

    He also has been talking about the need for more safeguards on privacy.

    From his piece at TPMCafe:

    Perfectly innocent international communications between Americans in the United States and foreigners overseas, whether by phone or email, are now commonplace. Business people talk with clients or colleagues overseas, students email friends they met while studying abroad, families communicate with loved ones living overseas. Under the broad surveillance authorized by the Intelligence Committee bill, their communications can be swept up. We need to do a better job of imposing limits, safeguards and oversight to protect the privacy of those Americans. The Senate Judiciary Committee bill was a good start, although more needs to be done.

  • ||

    Welcome back, Julian! (if you've been away). Sorry, don't mean to threadjack. Carry on...

  • ||

    This is a great article...Thank God for Chris Dodd or this travesty of a sham of a mockery of a bill would already likely be passed. Now tell me honestly...Where is the constituency that is demanding this??? Even from a crude political calculation it seems like stopping FISA and Telecom Immunity is a good move.

  • Elemenope||

    "Chris Dodd deserves great accolades and warm, effusive praise for his recent actions."

    You know, some say that everything has happened before, and everything will happen again. I'd like to offer into evidence the rebuttal that the sentence above in quotes could not possibly be such an entity. I certainly won't utter it again. Eternal recurrence disproved, continue with you regularly scheduled program.

    What the hell was Reid thinking? What. The. Bloody. Hell? FISA was always an abomination, but it was a controlled, tamed sort of abomination that at least paid enough lip service to due process so that it preserved the notion there should be a process for intelligence collection. The alternative bill was a similar sort of pet abomination, not the raving, spittling, malignant creature that hands out retroactive immunity like candy canes and shreds any sort of resemblance to legal process.

    I heard that Feingold was also in the wings to help out in the case of a filibuster. I've always liked Feingold, and certainly respected him more than Dodd for consistency and occasional adherence to constitutional principles. (Yeah, I know, campaign finance, blah-blah-blah...everyone has a vice) Why isn't he running for the dems? He's got experience, bipartisan respect, beloved in his state, and clear policy objectives (many of which I am sure would cause the Reason crowd to wail, gnash teeth, and rend garments).

    My girlfriend (who is a raving democrat-leftist-former Deaniac) believes that the dems will win the presidency but lose at least one house of Congress (perhaps both), and she uses as evidence *this sort of crap from Reid* but also their failure to use procedural tools to end the War in Iraq; the same procedural tools that Republicans are successfully wielding to push their agenda even while in the minority.

    What's your take?

  • ||

    Where is the constituency that is demanding this?

    The Washington Post, Time Magezine, National Review....

  • ||

    What the hell was Reid thinking?

    Reid is the worst majority leader I have ever seen. He lets McConnell dictate the agenda. He doesn't make the republicans filibuster, instead he quivers at the mere threat of it.
    He honors opposition part holds on legislation while ignoring holds from his own party.

    Even on the FISA debate, he tried to get unanimous consent that "all action will require 60 votes" -- thankfully Dodd refused to go along.

    And then little coward Reid comes out and tries to say the Criss Dodd's obstruction had nothing to do with his tabling of the bill.

  • Elemenope||

    James --

    Yeah, but you forgot the 9/11 song. That siren's call for "we need to sacrifice for our safety or the terr'rists win! 9/11 9/11 9/11"; I think that's how the lyrics go. Well, that song is even now beloved by many otherwise normal, nominally thinking Americans, and that constituency is who the bill panders to.

    I imagine that if each right in the Bill of Rights, Habeas Corpus, and the Exclusionary Rule were put up to a popular vote, very few of our beloved American rights would survive. You know, cause of terror. And child molesters. Don't forget about them. They and the drug pushers are terrorism writ domestic and function the same way, politically.

  • ||

    I find it fascinating that this is the first mention of Dodd's actions on hit n run, this article, which isn't even really hit n run.

    I love that Reason is really worried about the poor s-ball players who used steroids but can barely muster up any staff to actually care about individual rights in the face of overwhelming government/corporation effort/collaboration to strip the populace of any rights.

    Certainly gives those on the left some talking points to indicate that freedom is not actually on the libertarian agenda. What a shame. Or if it is, it is only an afterthought, thank jod that there are a few who still call themselves libertarian, who actually notice these efforts.

  • Kolohe||

    Allowing civil suits to go forward would lead to the disclosure of more information about the scope of unauthorized domestic spying-based not on an executive calculation of the political advantage to be gained from a leak, but an impartial assessment of the security risk

    A quibble with this statement. The players would change, but it would still be political. I do not think large and/or class action suits against large corporations are free of politics.

  • ||

    Lawrence,

    Walk to google. Type "site:reason.com dodd immunity". Learn something before you post untruths.

  • Shannon Love||

    *Sigh*

    I know from experience that this will do no good but I feel I must once again point out that this entire hysteria results a widespread failure to understand modern telecommunications technology.

    Let's lay out some technology facts: (1)There are no longer any wires to tap i.e. no physical relationship exist between the source of any particular electronic communication and the physical infrastructure that transmits it. Laws developed in the 70's for analog phone systems no longer describe the technology used.

    (2)All forms of electronic communication are converted to the same packet format and are sent over the same infrastructure. This means that phones calls, emails, web pages, faxes, etc all get converted to the same form and travel down the same channels.

    (3) There is no technical separation between foreign and domestic communications. Calls between two people in a foreign country are routinely routed through the US. US domestic calls and communications travel through foreign countries.

    (4) To know if you have legal authority to read a communication, you must first capture, assemble and read the packets containing it. In other words, to know if you can read it, you have to read it first.

    (5) In order to trap any particular packets, you must have access to every packet in the network. Since the packets all go by in one stream like message bottles in a river, you have to be able to grab any particular bottle if you want to be able to capture any message whatsoever.

    We face a very real technological limitation: In order to trap any single communication, we have to have physical access to all communications. Period. End of Discussion. The entire domestic spying hysteria is actually the railing against this technological fact.

    I haven't read a single hysterical story about "domestic" spying that addresses any of these technical facts even though they are readily apparent to anyone with even a moderate technical understanding. I am forced to conclude this is intentional ignorance.

  • thoreau||

    Shannon,

    Perhaps you are right, but I wonder why nobody else is making the points that you make. Why aren't any other cheerleaders for an unrestrained executive branch pointing out that technology makes it impossible for the government to protect Americans while obtaining warrants for surveillance?

    Anyway, I respect the Dodd.

  • ||

    Thank you, Chris Dodd.

    Why is he only at 1% in the polls?

  • stuartl||

    To know if you have legal authority to read a communication, you must first capture, assemble and read the packets containing it. In other words, to know if you can read it, you have to read it first.

    But you can capture the start of the stream, just look at the meta data (primarily header info), and then discard it.

    (5) In order to trap any particular packets, you must have access to every packet in the network. Since the packets all go by in one stream like message bottles in a river, you have to be able to grab any particular bottle if you want to be able to capture any message whatsoever.

    Once you know that a stream is not of interest, it is easy to ignore subsequent packets in the stream (yes, you need to sample the header, but can ignore the rest). If a packet is examined in the forest, and only a computer looks at it, is it a wiretap?

    ...every packet in the network.

    Where you are sampling on the network is a key issue. Not every packet goes through every router.

    thoreau, this is obviously way to complicated for either politicians or the media to understand. The early articles on FISA did mention metadata, but it was quickly drowned out with the simpler to understand "warrantless wiretaps."

  • Elemenope||

    Shannon --

    If that is true, and I am by no means technically astute enough to be anything but agnostic on those claims, then the question is not whether it is possible to separate domestic from foreign calls, but rather should the government be capable of doing what it does at all.

    It isn't hysteria if by virtue of technical spec the government is given power it shouldn't have (as opposed to by legislation). If what you say is true, then the present challenge is somewhat analogous to the problems in the early 20th century with snail-mail. We had offices that would open letters and packages, because after all it was impossible to know if there was contraband (like, for example, information about contraception) unless the mail was opened in the first place. Some innocent letter would be opened and read, but hey! the cost of doing business. The police were forced to give up that tool, and life still went on as usual.

    If it is true that the government cannot use this tool without violating the rights of its citizens, then it needs to get rid of the tool. The police, I'm sure, will get along just fine without it. (They bitched about not being able to do their jobs because of a person's right to ask for a lawyer, or not being able to beat a confession out of a suspect, or having to read Miranda rights...and yet, people still get convicted for crimes after all that).

  • stuartl||

    (1)There are no longer any wires to tap i.e. no physical relationship exist between the source of any particular electronic communication and the physical infrastructure that transmits it.

    Shannon, just curious since I've been out of the business for a while, but aren't most calls local to an RBOC still circuit switched?

  • thoreau||

    stuartl-

    I agree, it is too complicated for a non-expert (like, say, me) to understand the details. Still, I'm surprised that we haven't at least seen a dumbed-down version of the technical argument wielded as a cudgel against 4th amendment supporters.

    I find it hard to believe that the only way for the NSA to do its job is to read and record every single bit flowing through those channels. If the phone companies have a way to divide up the information and only send me my phone call but not somebody else's, surely the NSA should have a way to sort out wheat from chaff and only retain information pertaining to a target.

    I'm no telecoms engineer, but the fact that I can't hear anybody else's phone calls tells me that there must be something to this.

  • thoreau||

    If it is true that the government cannot use this tool without violating the rights of its citizens, then it needs to get rid of the tool.

    Don't scare Shannon with the prospect of a government that respects privacy rights.

  • stuartl||

    If what you say is true, then the present challenge is somewhat analogous to the problems in the early 20th century with snail-mail.

    This is a very good analogy. The addresses on a piece of mail are similar to the metadata in a packet header. You can know where it is from and where it is going, just like snail mail. The mailman is of course allowed to look at the addresses. But they cannot look inside the letter or package (unless it is from overseas, in which case I believe customs can look inside packages).

    It is quite possible to only snoop the metadata, and not retain the internal contents of the packet, or only retain enough data temporarily to know that the stream should not be watched. Since all of the packet is copied into memory, if you think of it as a human doing the operation, it appears that you have read the entire contents.

    A human may never be involved, and it may never be possible for a human to know the packet contents if the data is ignored (stored in temporary memory for less than a millisecond), but still a computer has copied the entire contents. Is this a wiretap?

  • Elemenope||

    Is this a wiretap?

    I think them there is one of them new-fangled "Latent Ambiguities" that Lawrence Lessig keeps talking about.

    For my part, I err on the side of 'yes'. But I'm kind of an extremist on this topic.

  • stuartl||

    For my part, I err on the side of 'yes'. But I'm kind of an extremist on this topic.

    I sort of agree, but since long ago we ceded the right to not to have our luggage inspected when returning from overseas, and we accepted that wiretaps on the old phone system were constitutional, I'm not sure if it is consistent with current law.

  • ||

    If it is true that the government cannot use this tool without violating the rights of its citizens, then it needs to get rid of the tool.

    There's something to that.

    Since the government shouldn't be monitoring the communications of anyone unless and until they have been identified as an active threat, I wonder if alternative tools aren't available that can be directed at those individuals without bugging the entire telecom network. Just asking.

  • Big Nanny||

    I know I'm going to sound like Ross Perot here but if there is a burgular in your neighborhood, the first thing you do is lock your doors. I have a hard time accepting any increased spying powers when we still havn't taken control of our borders and ports. That doesn't mean not letting anyone else in, and I am not just talking about our border with Mexico. I just cannot take this threat too seriously when we still have uncontrolled borders.

  • ||

    Maybe Shannon is really Kerry Howley. Big Brother is hear, deal with it.

    Ok, maybe not.

    I would have little problems with the NSA knowing what I was doing if it could only be used against me if I was a REAL danger to the existance of America.

    Shannon is basically making a case, intended or not, that technology has made many our rights moot.

    I guess there are no such thing as unalienable rights after all.

  • ||

    hear = here

    lol

  • ||

    Dodd for Majority Leader!

    Elemenope, the electoral map is just too favorable for the Dems to lost the Senate, and the House has actually been better on these issues.

    Shannon,

    You are correct that advancing technology has rendered the existing law insufficient, and that it needs to be updated.

    You are dead wrong that we should throw out the principle that the government cannot spy on us without a warrant, rather than find creative ways to apply that principle to novel situations.

  • ||

    Of course it would be silly of us to think that the government is interested in restricting it's self for any period of time. For the last 6 years government has been more interested in removing the restrictions that are in place as a result of their past bad behavior.

  • LarryA||

    Just to play Devil's advocate: this bill might add to our privacy.

    I have a feeling that giving agencies broad monitoring powers will result in gross overload. For the foreseable future the amount of data to be filtered will increase much faster than the sophistication of the filters.

    Unfortunately this also means that the intelligence agencies will be unable to find the information needed to prevent another attack. Information they might have discovered if they were more selective about what they made the effort to gather.

  • LarryA||

    "There is such a thing as irrational fear of government" harrumphs Orrin Hatch,

    Possibly, but I can't think of a single example in the 60 years I've been around.

  • thoreau||

    Yeah, the insistence that technology has made it impossible to find a needle without having unrestricted access to every innocent piece of hay in the stack strikes me as completely contrary to our Constitutional principles. It may be that there are some challenges to address in applying Constitutional principles to new technology, but I'd rather retain the principles than toss them out.

  • stuartl||

    Part of the problem is that people do not understand the technology. Having a computer look at every single packet is NOT spying.

    For instance, if your employer has any sense they have a firewall protecting their network. That firewall looks at every single packet coming into and going out of their network. Packets of a certain kind will be blocked by the firewall (such as an incoming UDP packet that is not established as part of an RTP stream). Those packets are identified by the firewall looking at the header (metadata) of every single packet.

    Does that mean that your employer is spying on you? Of course not. Using a firewall does not imply that a human is looking at the contents of a packet.

    Another example, both my ISP and my e-mail provider have virus and spam filters. They trigger off of certain addresses and characteristics of the e-mail to block spam and viruses. The spam filters look at every single incoming e-mail. Is my ISP or e-mail provider spying on me? Again the answer is no, because a human is not looking.

    Similarly, if the government asks a company to build a device that will only look for phone calls that meet specific criteria, say from a list of phone numbers, even though that equipment may be monitoring every single packet, only those packets that meet the criteria are captured. Even though every packet is monitored, the government is only spying on the specific calls, because a human never has the opportunity to see the data that does not match the criteria.

    This doesn't mean the government couldn't abuse what calls it listens to, but does mean that Shannon Love's suggestion that the government is spying on every call when it examines every packet is wrong.

  • ||

    It strikes me as quite naive to look to either wing of the Ruling Party to roll back a power that the government has usurped. The best we can hope for from the Democrats is some lip-service against FISA, but you know damned well that if they get the white house this time, they'll abuse it just like Clinton abused IRS records.

    -jcr

  • src||

    stuartl: I have to admit not understanding the technology, but your explanation raises a pretty strange dilemma. The government has access, potentially, to all the packets, but should be legally required to only spy on certain calls. How could you ever keep some overzealous spook from deciding to look at data he has no warrant for? He already has it, he's just supposed to avert his eyes. This seems hard to enforce.

    If you open a letter, or literally wiretap a phone line, you can be sent to court because there's physical evidence you broke in. But if the crime consists in merely seeing the call, couldn't the government just deny anyone ever peeked?

  • stuartl||

    src,

    How do you keep an overzealous spook from violating any law? Hopefully somebody talks and exposes the violations. The technology is not the problem. The government can and does abuse its power, but this situation is not really that different from any other. Somehow J. Edgar Hoover had tapes of calls by Martin Luther King. I suspect that the FBI also illegally opened letters and resealed them.

    To be useful, the equipment would be designed to keep records of all calls that it monitors. When the call was placed, both phone numbers, the recording itself, etc. It is not a different situation from an old fashioned wiretap, where a call is routed to recording and/or listening equipment. The only physical evidence was the recording of the call and the records associated with it.

    FWIW, I am only speculating on how such equipment would be built, I have no direct experience with this kind of monitoring.

  • stuartl||

    Also, it would not be a case of "averting their eyes," instead it would be actively telling the system the calls you want to capture. Collecting all of the voice on an active backbone line would require huge amounts of storage (for a single call it is roughly 60 kbytes/minute for heavily compressed data).

  • ||

    """Part of the problem is that people do not understand the technology. Having a computer look at every single packet is NOT spying. """

    Part of the problem is that people don't understand the problem.

    Spying doesn't really cover the attempt to catalog important elements of one's life. The real question is do we want an all knowing, all seeing government. It goes way beyond spying.

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