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

Thanks for backstopping me.

I just got a letter from a interesting young gentleman who did an internship on our Blueberry Hill Vegetable Farm a few years ago...

Billy W. now attends NYC's Columbia University.

Billy has his own web~site... www.talktome.org/...

I'll go there to see what he's up to...I'm sure it's good.

I do have faith in the creative upcoming next generation.

I'm okay, but I did spend the day at the hospital irking a priest? heh.

It is a interesting world. There are good and compassionate people who despise the cursed GOPS. fakes are fakes. fakes are fakes. fakes are creeps. fakes secrete yuck bile. fakes are 'um real disgusting freaks! Peeps. 'um bad bacteria. 'um rot onions. Do something beautiful and original. Git GOPS ...

place chewing GUM,

in mole hole paths.

It makes the grubs,

stop burrowing holes.

chewing GUM kills moles!

'Um ground Pest will die in days.

aoplogies~I'll go to www.talktome.com

Assuming that the folks that crafted the law had any particular intent is sometimes fraught with error. Lawmakers can write bad law, confusing law, inconsistent law, and law that -- on its face -- does not do what was intended. Trying to extrapolate into circumstances not specifically covered or originally contemplated by the law or into areas of ambiguity is difficult. That being said, this is a pretty good summation of 50 USC § 1801(f)(2-4):

1. "Vacuum cleaner," non-targeted foreign intelligence collection of communications data by our government, including communications retrieved based on watchlist subject-matter keywords or phrases as selectors, rather than based on personal identity selectors, including such communications generated and received by American citizens in America, was never prohibited under FISA so long as the communications were intercepted - if on wire - abroad, or - if in the air (radio and satellite transmissions) - intercepted either at home or abroad (unless the radio waves generated domestically were not intended to be publicly accessible and not intended to reach anyone beyond our borders or unless the radio wave interception was targeting a particular, known individual).

But what is not quite so clear is whether the folks that wrote it envisioned a massive "Vacuum cleaner" sniff that grabbed everything, from which the specifics of an individual could be sifted out just as surely as if that one person had been specifically targeted. Does it make sense to say you need a warrant to spy on one person, but no warrant to spy on everyone? (assuming you have that capability; this question may not have occurred to the writers as they perhaps didn't think that everyone's conversation could be "Hoovered" up....

I'm not sure I agree with the supposition of a lot of people that "radio" communications was meant to apply to telephone conversations of which one leg was transmitted via radio waves. Much is made by proponents of a FISA "upgrade" concerning the shift from "radio" to cable (primarily optical) media and the resulting difficulties in tapping such offshore.

I think instead that "wire" communications probably meant to most people thinking about it in 1978 the kind of point-to-point "between-parties" communication inherent in a telephone call. That such communications may be carried in one leg over microwaves domestically doesn't change the essential anture of the communications. That it might go partly via satellite over radio waves (as perhaps a majority did for international calls) back in the '70s doesn't change the fact that at least part of the conversation back then took place over wires (from subscriber to switch office, at the very least), and doesn't that make this a "wire" communication? Why should the level of protection vary for a person in the U.S. based on the vagaries of how his call was routed (a factor a person had little control over)?

Another telling reason for considering the "radio" provisions to not encompass telephone conversations was the language in this provision: "if both the sender and all intended recipients are located within the United States...", which seems to emphasise the broadcast nature of this provision. I think this provision covered such things as HAM transmissions, etc., of a broadcast nature, so that there was one sender and multiple recipients. And it is well known that the NSA monitored such radio communications of all kinds (see Bamford's books, or take a bike trip a couple miles south of me here on the Pacific coast, where there's a white building with barbed wire, a sign saying "Global Wireless", and about 2 dozen radio antennae of various sizes [and frequency response] capable of picking up a substantial portion of the HF wireless spectrum; they aren't just big football fans...).

I think they really intended for the separate portions of § 1801(f) to cover different types of communication, rather than just the vagaries of the media subject to interception.

I think the distinction between locus of intercept (allowing more freedom when done outside the U.S.) had more to do with the idea (at that time) that such interceptions would be less likely to be of domestic subjects and particularly of purely domestic calls. When put together with the prohibition on warrantless targeting of "U.S. persons within the U.S.", the provisions all taken together provided a fair amout of protection for people in the U.S., whether specifically targetted or just grabbed vicariously by dint of being of an international nature.

Cheers,