[Kris]: In theory, therefore, the dispute centers on international communications to or from the United States. In practice, however, it extends further because of the difficulty of determining the location of parties to a communication.

I think the difficulties in determining location are overstated (and in part, due to a desire to use this alleged difficulty as warrant to snoop on all communication even if the location and/or identity of the parties to a specific conversation can be easily determined). While there may be cases where location is ambiguous or cannot be precisely determined, when it can be determined, shouldn't that be taken into account? If, for instance, a land line is called within the United States, it's not hard to determine that it is such, and to halt or discard the recording of the conversation. FWIW, this is what is done similarly when a target of a Title III surveillance calls his lawyer; such conversations are privileged, and the snoops are obliged to stop listening as soon as they find this out.

But the proposed changes in the law don't require this; instead they say "well, because we don't know if the person's in the U.S., let's allow it all....."

Cheers,

Arlo: “I love this guy. Dr. Paul is the only candidate I know of who would have signed the Constitution of The United States had he been there.

That's why Paul is a "loon".

[Kris]: Today, I think the central operational problem in foreign intelligence surveillance is the difficulty of determining, at least in real time, the location of communicating parties who do not wish to be found. This problem stems in large part from changes in telecommunications technology and globalization, including the advent of web-based and other Internet-based communications, mobile communications devices, packetswitched networks, and increased international travel.

As I said, in many if not most cases, it is not "difficult[]". Many of you, I'm sure, have noted ads that pop up even when you're on the road, talking about weather or services in your current neck of the woods. The access ISP's IP range gives a geographical location in most cases; I can also look to see where the people that have visited my web site are coming from, and even the organisations (such as the gummint) when they come to take a peek. Granted, there is some range of ability to frustrate such locational placement, but for the most part, it works.

As for mobile devices, all of the U.S. is now required to provide LBS (location based services) at least for E-911 (emergency) calls, and the E-911 regulations that enforce this also require that location query ability also be given to LEAs for law enforcement purposes.

I don't understand why "increased international travel" would affect the way the law should work.

Cheers,

[Kris]: A thorough understanding of the programs, technologies, and operations of the Intelligence Community at that time was obviously necessary and utilized by those drafting FISA to craft this key "electronic surveillance" definition and its silent exceptions. One key Congressional witness put it like this, in 1978 (as quoted by David Kris in his paper):...

Just because the NSA or the intelligence community wanted to slip in arguable "loopholes" that would allow them a couple more bites of the apple doesn't mean that such were in fact the intent of the lawmakers that voted on it, or of the law.

Cheers,

Pow wow, what a disturbing mess we have here. A supreme court justice said, and I'm drawing from imperfect memory, something to the effect of, "It is unlikely that the government will not continue to find new ways of spying on its citizens, and therefore the fourth amendment must be interpreted as broadly as possible to account for new technologies."

Does someone more scholarly than I know that quote? It was Frankfurter or Brandeis, I think, and had to do with early recording devices. It stuck in my mind for its prescience, and commonsense clarity.

What seems to be missing here, sadly, is people simply reading the constitution, and understanding what the 4th amendment was designed to prevent, and applying it accordingly.

Others have posted here, and I emphatically agree, that FISA itself is unAmerican, and barely dragged us an inch up the slippery slope down which we've been sliding, not just now, but forever.

The government has been defying its charter since it was established, and at the risk of sounding snotty and churlish, these egregious depredations did NOT stop Sept. 11, or anything else. Nor will they in the future. Despotism is always about internal enemies, and in its singular obsession, invariably ignores real threats. And why not? When it fails, and something bad happens, that in itself enables more despotism.

Heads they win, tails we lose.

Depressing, but hardly a surprise.

"Does it make sense to say you need a warrant to spy on one person, but no warrant to spy on everyone?" - Arne L.

Good question...

You should send your comments along to David Kris (if you haven't already), to sound him out about them - the oddity of the "all intended recipients" language and the 1978 vagaries of phone call routing, etc., are persuasive arguments to me, but I'm not familiar enough with the state of the technology or the details of surveillance operations at that time to be a good judge. [I do think that the 1970s Congress did an exceptionally good job of carefully and thoughtfully crafting FISA, over a period of years, which is one reason why the reckless attempts to secretively and carelessly change it by today's Congress are so sickening to watch.]

Kris doesn't have the technology background he'd probably prefer to have to back him up in analyzing the drafting of FISA, and of course he's muzzled a fair bit because of the classified nature of what he does know.

I think he'd appreciate hearing your perspective [and I think he'd concur with your concluding paragraph, based on his comments about his FISA research, as is].

Frankfurter and Brandeis -- of blessed memory -- pretty much wrote the book on commonsense clarity, at least when it comes to the law, and particularly constitutional law. I wouldn't be at all surprised if they'd foreseen the pissant gauleiters of today.

I also agree with you about FISA. Glenn may respect it because it is, after all, the law, but I've always thought of it as The Court of Star Chamber myself, complete with kangaroo bas-reliefs, I don't doubt, to update the stars of the original.

Free men submit to such nonsense only under duress, and never without feeling diminished. (If you're there, aycharaych, consider this another unsolicited vote on your behalf.)