Civil Liberties

Do You Trust This Man to Protect Your Privacy?

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Yesterday President Bush signed an amendment to the Foreign Intelligence Surveillance Act (FISA) that legalizes the warrantless surveillance that the National Security Agency has been conducting since 2001. The major provisions include:

1) A redefinition of "electronic surveillance," for which a warrant from the Foreign Intelligence Surveillance Court is required, to exclude communications involving at least one person who is outside the United States. That means the NSA not only does not need a warrant to eavesdrop on international communications that happen to be routed through a U.S. switch (which seems like a reasonable tweak to FISA); it also does not need a warrant to eavesdrop on communications between people in the U.S. (including legal residents and American citizens) and people in other countries, provided the party outside the country is suspected of involvement in terrorism. That suspicion need not be vetted (or even rubber-stamped) by anyone outside the executive branch; the attorney general and the director of national intelligence will have the unreviewable authority to approve surveillance.

2) Authorization of administrative directives compelling telecommunications companies to cooperate with surveillance or provide records. A company can appeal such an order to a FISA judge, who can modify or set aside the directive only if he finds it "does not meet the requirements of this section or is otherwise unlawful." The requirements are easily met: The government need only assert that "a significant purpose" of the surveillance is "to obtain foreign intelligence information" and have "reasonable procedures in place" for determining that the information sought "concerns persons reasonably believed to be located outside the United States."

Under the new law, then, the government may eavesdrop on your international phone calls, read your international e-mail, and peruse your phone and Internet records at will, based on nothing more than an untested suspicion that the person with whom you're communicating has some sort of connection to terrorism. In practice, since no court will be reviewing the authorization of surveillance (even after the fact), you have no legally enforceable privacy rights that protect the content of these communications or records. You have to put all your trust in the competence and integrity of the director of national intelligence and the attorney general, a man whom several members of the Senate Judiciary Committee (including the senior Republican) recently accused of deliberately misleading Congress.

Addendum: Here is Orin Kerr's take. He expresses some civil liberties concerns but concludes, "Given that this is a 6-month temporary fix, not a permanent change, I tend to support it." Note that the FISA court review to which he alludes involves the government's general procedures for limiting warrantless monitoring to "surveillance directed at a person reasonably believed to be located outside of the United States," not the evidence that a specific target is involved in terrorism. He characterizes that review as "highly deferential." Kerr also worries about compelling the participation of telecommunications companies without individualized court orders.

At Balkinization, Marty Lederman offers his analysis of the amendment, while Jack Balkin warns that the "Party Without a Spine" is conspiring with the "Party of Fear" to bring us a "National Surveillance State."

A PDF of the bill is available here.

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  1. We’re all suspects now, comrades.

    “A single room for my friend, please.”
    “Yes, sir. Bugged or unbugged?”
    “I think I’d feel happier with a bugged one.”

  2. SPD: that’s one of my absolute favorite Flying Circus episodes.

    “[scene missing]

    wow! what an amazing escape!”

    or, “Pither. As in Brotherhood, with a Pi instead of Bro, and no hood”.

  3. My favorite exchange:

    Pither: Are you… Rear Admiral Dudley de Vere Compton Bart then?

    (Chinese) British Ambassador: No. He died. He have heart attack and fell out of window onto exploding bomb, and was run over in shooting accident. Nasty business. I his susscussor… how you say… succsussor.

  4. Oh my lack of God! It’s Trotsky!

  5. When I lived in The Magic Kingdom all our phones were tapped. We knew it was the Saudis doing it and (at home, at least) we’d drop buzzwords just to tease them. My dad behaved himself while on the phone at work because… well, that’s a long story.

    Now US intelligence (insert statement to the oxymoronic nature of the title here) will be listening in on a bunch of boarding school brats and expatriot wives calling home. What more appropriate use of our tax dollars could there possibly be?

    I must say, These Damned Expat Kids Today will have their work cut out for them. Teasing Saudi intelligence (insert statement to the oxymoronic nature of the title here) is much more fun and probably less dangerous than teasing US intelligence (yada yada yada).

    *balance hands*
    Deportation out of The Magic Kingdom or imprisonment at Guantanamo (or worse)….?

  6. Boy, this Alberto sure is swift with curtailing our old civil rights, isn’t he? To quote Philip J. Fry, “he makes Speedy Gonzales look like Regular Gonzales.”

  7. Once again congress passes a vague expansive bill and will be shocked at how it’s implimented.

  8. “Housey Housey!”

  9. How did a Democratic Majority allow such a BILL to exists in 1st place ???

    Someone plz explain. R these the people I voted for 2 stop the war and the errosion of civil liberties ??

  10. iirc correctly the power expires after 6 months.

    What is the point of abusing rights for 6 months?

  11. cuz they’re just a jack in the box…

  12. I have to ask… Alice, R U submitting ur comments via txt msg? I feel as though I’m reading comments from a 12 year-old.

  13. What is the point of abusing rights for 6 months?

    Hmm… because terrorism will be defeated by then?

    Probably, some lawmakers think that a sunset clause is an acceptable substitute for a spine, but the cynical part of me says that what will happen is proponents of this bill will say, “See? You gave it a trial run and the country didn’t collapse under the weight of alleged civil rights abuses. So there’s no reason you shouldn’t reauthorize it (and make it permanent, this time).”

  14. Alice,their the same folks that gave us the wars on drugs and drinking[not drunk] driving.

  15. Bronwyn – “Alice” is actually a 43 year old, slightly overweight agent with a two day stubble trolling as “Alice” in efforts to see who will email people overseas about this “Alice” who posts hier and elsewhere.

    Then, with the gathering evidence against the eavesdropee, “Alice” will reveal himself as the said 43 year old, slightly overweight agent with a two day stubble who was trolling as “Alice” in efforts to see who emails people overseas about “Alice” who posts hier and elsewhere.

    Afterwards, this 43 year old agent (who is slightly overweight and still listens to “Boston” and has a two day stubble) will move on to the next assignment.

  16. Okay,

    So they give the executive 120 days to come up with procedures for approval for an act that sunsets after 180 days. Seems like a 120 day license to do whatever the fuck they want.

  17. still listens to “Boston”

    More Than a Feeling that you are being watched?

  18. Note that the FISA court review to which he alludes involves the government’s general procedures for limiting warrantless monitoring to “surveillance directed at a person reasonably believed to be located outside of the United States,” not the evidence that a specific target is involved in terrorism.

    That’s because the government doesn’t need to meet any sort of standard at all to authorize surveillance overseas.

    This is a tricky issue. My reflexive response is to oppose any expansion of surveillance, but it’s not at all obvious to me that the presence of one person in the country means that the rules for domestic, rather than foreign, surveillance (ie, judicial warrants) apply to listening in on that conversation.

  19. Thx VM,

    great memory…However, I’d like 2 think that i’m almost in good shape…but i am trolling and have a two day old stubble…and i won’t b 43 until august 25th…lol

  20. If enough people insert into their international e-mails words like “target” and “package”, sentences that seem to include codewords, and phrases like “peace be upon him” and “thanks be to god” the NSA’s data mining computers will have the digital equivalent of a stroke.

    “Dear Jane,

    “The weather here is sunny. Thanks be to god, the package is ready to be delivered to the target and we plan to visit the lake soon. Our brother, peace be upon him, should be able to come with us.

    “Yours,

    “Philip”

    Translation …

    “Dear Jane,

    “The weather here is sunny. I have boxed up your books and will ship them to you. I’ll drop them off at the post office on the way to our house on the lake. My brother James has recovered from his depression and will be coming with us.

    “Yours,

    “Philip”

    On second thought, if enough people do this it will probably become illegal to compose or send electronic communications that confuse the NSA’s computers.

  21. On second thought, if enough people do this it will probably become illegal to compose or send electronic communications that confuse the NSA’s computers.

    Opening up a market for a software company to develop word processing software that only allows approved phrases, and sends a copy directly to the NSA…?

  22. For “pre-approval,” of course.

  23. “Dear Jane,

    I bought a package of Anthrax CD at the local Target. They are the bomb!

    Gotta go… someone’s knocking very, very loudly at my front door.

    Love,

    Philip”

  24. The commenters above (peace be upon them!) have delivered an excellent package of humor. They are Da Bomb!

  25. Approved “NSA Safe” by Symantec SIES (Safe International Email Software.

    Anthrax recorded the best Joe jackson cover … ever.

    No codewords are included in this message.

  26. See, when I was just a sweet young thing all I thought to say was, “did you get the plutonium from our Iranian contacts?”

    Which goes to show you what I knew when I was 12. I should’ve said TO… TO our Iranian contacts.

    Blast!

    VM n Alice (p.b.u.y.)… ROFLMAO!!!!111!!eleventyone!!
    srsly

    y’all rock my world

  27. The Dems caved to the administration again? Say it ain’t so, joe!

    I guess we just need to elect 70% Democrat majorities in both houses of Congress and a Democratic president to make sure this doesn’t happen.

  28. Actually, crimethink, they punted. Did you miss the bit about the 6-month sunset?

    Maybe you should wait until we actually see what Congress does before mouthing off about what Congress did.

  29. I guess we just need to elect 70% Democrat majorities in both houses of Congress and a Democratic president to make sure this doesn’t happen.

    Yeah, the president who sent this bill to Congress and has been hammering away in the press, insisting that they pass something before they recess – which party was he drom again?

    You’re exactly right – a 70% Democratic majority and a Democratic president would have prevented this from happening. So get those yard signs up.

  30. Great haircut; he and Jack Edwards should exchange beauty tips.

  31. Actually, crimethink, they punted. Did you miss the bit about the 6-month sunset?

    Punted? Yeah, right. More like another fumble. Does anyone believe this will not be extended in six months? What, are the Dems going to suddenly grow a pair by then? You’re grasping at some pretty flimsy straws there to avoid the unpleasant reality that the Dems, despite their campaign rhetoric, can’t stand up to Bush on anything. Oh wait, I forgot – they’re really going to take a firm stand against the administration over the Justice Dept. attorney firings… Apparently they couldn’t find a more inconsequential issue.

  32. They just put in the six month sunset to make the Congresscritters more comfortable about voting for the bill. They cay say “hey, its only six months!”

    Of course any good libertarian knows once that government starts a program, it rarely stops.

  33. Approved “NSA Safe” by Symantec SIES (Safe International Email Software….

    A division of Bin Ladin Software Inc., Peshawar, Baghdad, Mahwah, NJ.

  34. joe, don’t even try to make excuses for your team. Not this time. Admit that they failed.

  35. Will you idiots get a little perspective?

    There are people TRYING TO KILL YOU and you’re ridiculing every attempt to keep them from succeeding.

    This isn’t a TV show. The people who die today don’t appear next week on another network.

    Yes, there are problems with the policies and proposals, but few of them are bad from one end to the other.

    What we need to do is support the good parts and fight the bad parts, but this requires some actual THOUGHT, and all I’m seeing from you people is REFLEX.

    Start using your brain as something more than a counterweight for your butt.

  36. Yeah crimethink, stop “mouthing off” so much. Otherwise my good friend joe will have to give you another finger wag.

  37. What drives me absolutely bonkers about the Democrats is that they will contort themselves into knots so the Republicans won’t call them pussies on national defense type issues. Like the Republicans are ever not going to call the Democrats pussies on national defense type issues.

  38. I think J Golden Rockwell just suggested that we all have large butts, seeing as how we require such large brains for counterweights.

    I’m flattered and, at the same time, offended by the remark.

    Just sayin’

    Is anybody gonna sing Baby Got Back cuz I’m not gonna do it.

  39. Is J Golden Rockwell just another J-name troll like Juanita / Jane? It’s hard to keep up with them all.

    There are people TRYING TO KILL YOU and you’re ridiculing every attempt to keep them from succeeding.

    I mean, tell me that doesn’t sound like a classic Juanitism.

  40. If this concerned Russia, the headline would be “Putin Backslides on Democracy”.

  41. joe, don’t even try to make excuses for your team. Not this time. Admit that they failed.

    Well, I did technically tell him to “say it ain’t so”, so I guess it’s my fault.

  42. Bronwyn: The size of your brain isn’t the issue, and I am in no way trying to claim that you are unintelligent. The problem is the way you use that brain, like using a diamond for a doorstop.

    Brian: Nope. I’ve never used a different name on here. But instead of attacking the messenger, how about trying to comprehend the message?

  43. Start using your brain as something more than a counterweight for your butt.

    I am in no way trying to claim that you are unintelligent. The problem is the way you use that brain, like using a diamond for a doorstop.

    But instead of attacking the messenger, how about trying to comprehend the message?

    Hmmm? It is usually not worth spending too much time trying to comprehend the message of someone who would write the first two sentences, much less someone who would follow up those gems with the, rather unintentionally ironic, third. But then, perhaps I am confusing arrogance dripping with derisive condescension and “attacking the messenger”.

    At any rate, I think we comprehend what message there is just fine – we simply see it as the nonsense it is. Yes, there are some people TRYING TO KILL US, but we recognize that, first, the government had all the tools it needed to effectively deal with those people well before 9/11. And second, the chances of any of us being killed by one of those evil-doers who are TRYING TO KILL US ranks somewhere between dying in a commercial airplane crash and toppling a vending machine on yourself trying to get that stuck bag of CornNuts, meaning that any attempt to ratchet up the government’s ability to spy on individuals, without even nominal judicial oversight, ought quite rightly to be met with reflexive dismissal.

    We’ve already given this plenty of thought, despite your patronizing implication of the contrary, and absent some new and compelling evidence of dire necessity, we don’t need to re-think the fundamental issue every time the Bush administration (with the help of the spinelessly complicit Democrats) claims the need for ever broader and more sweeping surveillance powers.

  44. You’re exactly right – a 70% Democratic majority and a Democratic president would have prevented this from happening. So get those yard signs up.

    Are you intending to be ironic?

    It wasn’t that long ago that the parties’ roles were reversed, with Clinton engaging in broad surveillance techniques, and the Republicans screaming bloody murder about violations of their Constitutional rights. I’m sure it won’t be long before another Democrat is in the White House, and all of you are defending his warrantless searches, and the Freepers will once again become the defenders of the Constition and limited government.

    Partisanship is apparently so much easier on the mind than holding an informed opinion.

  45. Brian Courts wrote:

    Start using your brain as something more than a counterweight for your butt.

    I am in no way trying to claim that you are unintelligent. The problem is the way you use that brain, like using a diamond for a doorstop.

    But instead of attacking the messenger, how about trying to comprehend the message?
    ===

    Hmmm? It is usually not worth spending too much time trying to comprehend the message of someone who would write the first two sentences, much less someone who would follow up those gems with the, rather unintentionally ironic, third. But then, perhaps I am confusing arrogance dripping with derisive condescension and “attacking the messenger”.

    At any rate, I think we comprehend what message there is just fine – we simply see it as the nonsense it is. Yes, there are some people TRYING TO KILL US, but we recognize that, first, the government had all the tools it needed to effectively deal with those people well before 9/11. And second, the chances of any of us being killed by one of those evil-doers who are TRYING TO KILL US ranks somewhere between dying in a commercial airplane crash and toppling a vending machine on yourself trying to get that stuck bag of CornNuts, meaning that any attempt to ratchet up the government’s ability to spy on individuals, without even nominal judicial oversight, ought quite rightly to be met with reflexive dismissal.

    We’ve already given this plenty of thought, despite your patronizing implication of the contrary, and absent some new and compelling evidence of dire necessity, we don’t need to re-think the fundamental issue every time the Bush administration (with the help of the spinelessly complicit Democrats) claims the need for ever broader and more sweeping surveillance powers.

    Yes, the government had the tools, but no sense of urgency. Now there are some with the sense of urgency, while many more are backbiting, trying to score points.

    Some of the tools that the government had were the wrong tools, like trying to clean a kitchen sink with a hammer. Some of the tools that they are trying to get now are the wrong tools, and we can use the same example.

    However, in the middle there, some of those new tools are the right ones. When dealing with our Elect Officials, like with any other child, you have to help them figure out the right tool from the wrong tool. But when you just jump all over them for not being able to figure it out for themselves, they stop trying and just take the whole toolbox, because they can, and they’ll try to figure out how things work later.

    Yes, statistically your chances of dying from terrorist action is low. But there are people doing their best to increase those chances. We can’t count on their incompetence to last forever, and turning the other cheek just gives them somewhere else to bite.

    If we are going to win, we are going to have to accept a few changes. Changes are going to happen. It’s our job — yours and mine — to make those changes the RIGHT ones, and the only way to do that is to get our Elect Officials to look at what they are doing.

    They’re NOT going to do that when we come across as fanatics who reflexively attack everything they say or do. They will just shut us out and do as they damn well please.

    But when we pat them on the head for the good things, they are more likely to listen when we point out the bad things in their plan.

    This is too serious a business to let them marginalize us.

  46. You ride in a CAR!?! Are you CRAZY?
    You cross BRIDGES!?! Are you STUPID?
    You LEAVE THE HOUSE!?! Are you OUT OF YOUR MIND!?!

    Someone, please, please protect me from all the bad things in the world! HEEEEELLLPP!!!!

    – J Golden Rockwell, cowering in fear for 2007.

  47. In all seriousness, is there a Right to Privacy granted to us in the Constitution?

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