Adnoto, of what use is that? Can't you stick to your argument. Why demean yourself with insults like that? Why are you so angry at yourself that you resort to such childish communication? Gordon will not fall for that nonsense, and neither will I. Good night.

Of course, I wish the ACLU and the EFF the best in their lawsuits against the new FISA law. Let's hope the cases don't come before ex-Federalist Society hacks. These bastards think the President's above the law, remember.

Precisely:

Try this analogy: The distinction between intending to listen to one party or another of a conversation is like saying that you're intending to watch one or the other of two teams playing each other in a baseball game; that may well be your intention, but you're going to have to watch both to fulfill it. And now compare warrants to tickets to the stadium: saying that the government has to have a warrant [only] when intentionally "wiretap[ping]" a [known] U.S. person's phone is like saying that I have to buy a ticket to see a Yankees game only if I intend to watch the Yankees. If I'm smart [or the Bush administration], of course, I'm always going to claim that I'm actually at the stadium to watch the other team. And because we're talking about intentions, no one can argue with me (i.e., with the government). - rhetoric teacher

The only hurdle to clear before such 'ballgame-style' spying is implemented is FISC approval of a general 'reasonably-believed-to-focus-on-foreigners' software-designed program for collection of private communications from (unknown-to-FISC) intercept locations. The need for an individualized FISA warrant - never mind post-collection minimization of warrantless data from what may or may not be anonymous Americans - is not triggered unless and until "the purpose" of the collection of the data is to spy on a particular American (and thus not on that American's foreign correspondent). Only then is an American considered a "target" under the new FAA. And not until a specific American in America is such a sole "target" of collection is an individualized probable cause warrant from the FISA Court required by the new FAA.

Language in the House bill that would have defined a particular American as a "target" of such collection and recording whenever "a significant purpose" of such surveillance is to learn what the American is saying was stripped out of the new FAA:

A FISA order should be required in those instances where there is a particular, known person in the United States at the other end of the foreign target's call in whom the Government has a significant interest such that a significant purpose of the surveillance has become to acquire that person's communications. This protection has been stripped from H.R. 6304.

-snip-

H.R. 6304 permits minimal court oversight. The Foreign Intelligence Surveillance Court (FISA Court) only reviews general procedures for targeting and minimizing the use of information that is collected. Under these circumstances, the court may not know, what or where will actually be tapped. - Sheila Jackson-Lee

http://letters.salon.com/6658d541a01688192443edf4d36cf09f/author/index91.html

Yet, at the same time, for the targets of acquisition "reasonably believed" to be foreign, only "a significant purpose" of the year-long collection program needs to be to obtain "foreign intelligence information." Which raises the inescapable question of what the other purpose(s) for collecting from targets "reasonably believed" to be abroad (even if frequently in communication with Americans) might be...

Here's another analogy: Think of the general-order-authorized data collection that the new FAA law authorizes as an iceberg. The supposed, claimed aim of the law's new spying authority can be considered equivalent to the part of the iceberg we see above the surface of the water. And all the rest of the hidden iceberg lurking beneath the surface represents the "incidental" collection of anonymous American communications captured by technology as it intercepts the data that transits our borders during the government's particularized-warrant-free, basically-FISA-exempt spying on the part of the iceberg that we can see rising into the air (i.e., the part "reasonably believed to be located outside the United States" regardless of whom those foreign parties may be "incidentally" in communication with 'beneath the surface').

cboldt, commenting at Balkinization, rightly notes that Kit Bond stated Tuesday that, although the new bill doesn't officially change FISA's definition of "electronic surveillance" the way the PAA did, the FAA's new Title VII of FISA effectively does the same thing (to get around individualized warrants), just not in the same "upfront" way that the PAA did:

Third, as a part of our compromise with the House Democrats, we agreed to replace our version of what we call a carve-out from the definition of electronic surveillance with their definition of a carve-out which they call construction. Operationally, there is no difference between the two approaches, but we think our approach is more forthright with the American people because we put our carve-out right up front instead of burying it several chapters later in title VII of FISA as they wanted to do. - Kit Bond

http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2008_record&page=S6395&position=all

If we still have independent judges on the FISA Court (as 2007's ruling(s) would appear to indicate that we do), I really don't see how the Fourth Amendment isn't implicated by this sweeping new foreign-domestic spying collection on U.S. soil, such that it forces their hand, blocking implementation and forcing appeals. Of course, as noted, the remedy provided by Congressional petty tyrants should the court find a Fourth Amendment violation is for the government to continue collection anyway for at least a couple of months during the pendency of the appeal.

Aside to Arne - I thought Marty Lederman hit the nail on the head in his latest post - http://balkin.blogspot.com/2008/07/privacy-protective-components-of-new.html - and I thought Julian Sanchez in the comments was spot-on too, but I noticed that you disagreed with both of them to some extent [you interpret the foreign-to-unknown technical problem differently, I gather, though I don't grasp your full argument]. As to email, you assert that there's a technical fix, that doesn't require a change in the law, but I don't understand the import of locating email users via a "POP3" ISP email server as opposed to just 'an' email server. Are there always three servers (POP3 on each end) between two email correspondents?