continued...

David Kris (emphasis added):

And [Congress] made clear [in 1978] that the gaps in FISA eschewing regulation of NSA SIGINT collection "should not be viewed as congressional authorization for such activities as they affect the privacy interests of Americans." In the end, of course, the gaps were not filled. One reason appears to be that the subsequent surveillance legislation became entangled in the doomed effort to establish legislative charters for the Intelligence Community. Another reason, of course, may be that some of the gaps were closed by the very technological and other operational developments that the government now cites in support of the PAA and the FAA.

This seems to be where Senator Whitehouse is aiming with his helpful and insightful minimization amendment(s) (though he illogically seems to be calling it "incidental" collection on innocent Americans), and why the Executive Branch is resisting:

Thus, under the [Senate Intelligence Committee bill] as much as under the PAA, the government can (in some circumstances) conduct surveillance that "targets" (or is "directed at") al Qaeda, which is located outside the United States, on the telephone line or e-mail account of an American citizen located in the United States [without obtaining an individualized FISA court order]. - David Kris (emphasis added)

To work effectively, such minimization would have to occur in tandem with the known, actual primary subject or subjects (if any) or purpose of the foreign intelligence surveillance sweeps, which are being conducted without a warrant and beyond FISA's reach because not "targeted" on any American per se, though many innocent Americans are definitely being surveilled and collected upon in practice (in their international phone calls and in their e-mail) despite not being defined or identified as individual "targets," and the overall amount of data being handled in these sweeps is "massive" (to quote DNI McConnell).

If targeting is to be described in terms of purpose, the sensible conclusion is that the identity of the target depends on the government's "primary" purpose. The RESTORE Act seems consistent with that. - David Kris

4. Finally there's the wide-ranging process of "link analysis" using telephone company phone calling records and propietary software to analyze connections among callers, using only some version of identifying number connected to individuals, which allows the government (and its contractors) to look, via a gigantic computerized fishing expedition, for "suspicious patterns" among callers who may only later be selected out to drill down for individual name identity and subsequent traditional "targeting" for surveillance. Where and how this process fits in with the other methods of surveillance, I'm not exactly sure - but the House has stated that it intends for this process to be legalized by RESTORE, although on the face of it it seems to violate the original technical provisions of FISA and to violate Fourth Amendment protections, if the analysis includes the records of calls of Americans in America, which House-cited news articles suggest it does, on a massive scale, in a huge domestic phone-call database controlled by the FBI and/or the NSA:

Http://www.rules.house.gov/110/text/110_hr3773rpt_judiciary.pdf

[See Footnote #27]

That massive link analysis database program may be the so-called "Terrorist Surveillance Program" so touted by this administration, and it probably stands separate and apart from the collection of (presumed-foreign) stored e-mail from U.S.-based servers (the 'foreign to foreign on a U.S. wire' issue), and apart from the ongoing interception abroad of the international communications of innocent Americans (which has been continuous since FISA was enacted, and may now even include our purely internal domestic communications if today's technology makes that possible).

As the linked House Judiciary Committee report states, only after this computerized link analysis finds a suspicious pattern involving an American phone number, would the RESTORE Act "[require a FISA court] warrant once a substantial purpose of the acquisition is to acquire the communications of a United States person." In short, only when one is finally "targeted" - meaning that a "substantial purpose" of government surveillance of a particular, identified American's domestic and international phone calls is to acquire them for foreign intelligence purposes - do our Fourth Amendment protections from unreasonable search and seizure by our government, without an individualized warrant from a court, finally come back into being.

This overview of FISA doesn't of course address any other blatant, clear-cut violation(s) of the terms of FISA, and thus the Fourth Amendment, which may have taken place, such as seems to be occurring via the NSA splitter that's siphoning off a streaming copy of the data transiting AT&T's digital network in San Francisco (and elsewhere), which may be providing the data for the TSP's link analysis, and perhaps for the sort of non-domestic foreign intelligence surveillance as permitted by FISA, per #1, off wire if intercepted abroad, in addition to who knows what other schemes which have yet to be unearthed by patriotic and principled whistleblowers.

Http://www.brookings.edu/~/media/Files/rc/papers/2007/1115_nationalsecurity_kris/1115_nationalsecurity_kris.pdf