continued...

2. Interception of "foreign to foreign on a U.S. wire" collection was also not ever prohibited by or covered under FISA, so it's quite clear that that popular justification for the need to "modernize" FISA refers not to telephone calls, but instead to the post-FISA emergence of e-mail conducted between foreigners but stored on U.S.-based computer servers (which were covered by default by FISA as stored data because not included in the definition and description of communication methods in "electronic surveillance" under FISA).

David Kris (emphasis added):

FISA has never regulated surveillance of wire or radio communications

transmitted between two parties abroad. For example, if a U.S. citizen travels to Paris and telephones a friend in London, the U.S. government has always been able (as a legal matter) to monitor the call without a warrant under FISA. And that has always been the case regardless of where the government did its monitoring – i.e., even if the call was routed through the United States and wiretapped here.

This is the non-controversial fix/amendment to FISA that is not, by a long shot, the main component of the now-pending bills. And if this is the alleged intelligence "gap" that forced the Protect America Act stampede of Congress last August, that gap has been closed by the PAA and its ongoing (year-long) orders past 2/2/08. Those giant U.S.-based computer servers are no longer subject to the FISA warrant application process when foreign-to-foreign emails are the objective of the government spies and data collectors.

The problem here, however, is that though non-controversial, this provision is not simple to implement, operationally, or via legislative language, because of the difficulty in identifying the geographical location of senders and receivers of e-mail. The way the PAA did it left giant loopholes for unregulated collection of data of Americans, which RESTORE and the Senate Intelligence and Judiciary bills all try to close, to one degree or another. Thus we have this vague "directed at a person reasonably believed to be located outside of the United States" language and the programming procedures to that end, in these bills.

Because of the difficulty of distinguishing foreign from domestic e-mail senders and recipients, simply letting the Executive Branch collect it all, en masse and in secret, without strict FISA court oversight and enforcement of careful minimization procedures to eliminate the data of innocent Americans, is foolhardy and reckless at best, and inefficient, wasteful and grossly unConstitutional at worst.

David Kris:

Finally, and stated more generally, the problem is that foreigners abroad can now communicate inside U.S. cyberspace. This presents a strange constitutional combination of seemingly unprotected persons (foreigners with no ties to the U.S. except an e-mail account with an American ISP) using highly protected facilities (the U.S. servers of the American ISP) to correspond with one another.

3. FISA in 1978 also didn't address one potential future avenue for a gross invasion of our privacy: the possibility that technology might one day allow our government to collect at locations abroad or off-shore in ships, "vaccum cleaner"-style, off wires, our solely internal domestic communications. In other words, though they begin and end in the U.S., these communications may divert overseas enroute and thus become technically exempt from the restrictions of FISA. FISA explicitly forbade such collection of domestic (or international) communications if taken from any wire located in the U.S. (while allowing such non-targeted collection from Americans taken off wires abroad per #1), but didn't address the possibility that today, perhaps, or in the near future, most of our (solely) domestic communications may be accessible off wires abroad from a country (like Israel?) willing to partner with our government in such a knowing and gross violation of our Fourth Amendment right to privacy.

Some of the amendments being proposed (and which were part of the tabled Senate Judiciary Committee bill - thanks again, Harry Reid...), attempt at long last to address the Fourth Amendment concerns of FISA noted in #1 and #4. However, those proposed fixes, which Wyden, Feingold, Schumer, Whitehouse and others have been pushing, seem to be primarily focusing on safeguarding "known" Americans who are deliberately "targeted" for collection by our government [and would require for the first time an individualized FISA court order (rather than just an AG certification) to be so-targeted], instead of dealing with the much, much larger problem of wholesale collection of the data of "unknown" and thus "non-targeted" Americans swept up in international (subject or keyword-type) collection by our government, in increasingly massive sweeps since 1978 due to the explosion in international communications.

Senator Whitehouse's many efforts on the minimization front are aimed at the problems in #2 and #4 and perhaps also at the threat posed by #3 (if any, realistically), and may in fact be homing in on the broader problem of international subject-matter selector sweeps in #1, as well. He is running into resistance from the Executive Branch, though it has agreed that contacts with (the relative handful of) "targeted" Americans - here or abroad - may be minimized with FISA court oversight and enforcement. But the real resistance is to Whitehouse's effort to minimize - with court oversight and enforcement - the collection of data from Americans who are in contact in some way with foreign subjects of surveillance - foreign subjects who generally are swept up en masse on a bulk basis along with many innocent Americans (without warrants or court orders of any kind, whether individual or basket) - and are only later individually identified for further monitoring and surveillance, I presume. I believe the reason for the Executive Branch resistance is pretty clear: Whitehouse may well have his finger on the unfinished business of FISA from 1978, and the NSA and IC under this out of control presidency aren't about to give up powers they've been enjoying for decades, in quite flagrant violation of the Fourth Amendment, but unfortunately never in violation of, or prohibited by FISA.

To be continued...