Cui bono?

One of the main rejoinders to my stance on FISA, which is that the government should get warrants whenever US territory is involved, is to say "What's the harm? How could the government use this to spy on innocent Americans?" Just off the top of my head, it seems tailor-made for spying on Arab Americans who organize peacefully to lobby against America's Israel policy. Whatever your position on that policy, this should give you pause . . . since it would make it equally easy to spy on AIPAC tomorrow.

But the real answer is, "What's the harm in getting a warrant from a FISA court?" If the government isn't going to spy on millions of innocent Americans, it really shouldn't be that onerous to pre-clear it with the court.

I don't blog a lot about national security because it just isn't my area of expertise. But my general position is that the government should have as little freedom as possible to do anything, particularly spying on people on American soil. Speaking as someone who lost more friends and acquaintances in the World Trade Center than almost any of my readers, I think there are worse things than terrorism. But it's also not really clear to me how much this helps us fight terrorism. As far as I can tell, the FISA courts are extraordinarily willing to grant the government what it asks for.

Comments

If the government isn't going to spy on millions of innocent Americans, it really shouldn't be that onerous to pre-clear it with the court.

Previously, government wiretapping has been treated considerably differently when there has been an actual wire involved. For things that travel through the air, it's absolutely impossible for intelligence agencies to avoid intercepting all signals, and then filtering through it for what they want and discarding the ones for which they don't have warrants. The government has always (including right after the Church reforms) been allowed to intercept lots of wireless signals traveling outside the US and then discard the ones (within 48 hours) belonging to US persons without outstanding warrants or which happened to be US in origin. The latter is governed by executive orders.

By contrast, signals sent over wires have been different. With old-style phone circuit connections, it was pretty easy for the government to figure out who was calling whom, and to only intercept the signals of particular people. It was also easy to tell if a signal involved a US party on either end. They could tap only the signals of interest, and not touch the others. Hence this has always required warrants in a way that wireless intercepts has not.

What the government has been arguing for a while is that signals sent over packet-switched networks are very different, especially when encryption is involved. The intelligence agencies argue that they cannot intercept such signals without behaving as in the wireless case, by intercepting everything and then throwing away whatever is US person without a warrant. (So, to put it another way, the intelligence agencies have responded to the inherent improvements in privacy that, say, VoIP offers by demanding additional tools that would reduce privacy on net.)

Part of the question is: Does the government need a warrant for only the stuff that it keeps, or would it hypothetically need a warrant for anyone whose data could possibly be intercepted? (The latter could make it technologically impossible to capture particular signals at all, since it would be impossible to tell if a US citizen was one of many people on the same signal until examining it.) If you do allow the government to examine signals enough to figure out who is sending them, and throw away the ones it doesn't have a warrant for, is there a level where the expectation of the percentage of US citizens in the signal being captured is too great to be allowed without a warrant?

The intelligence agencies also wish to make an analogy to customs and border searches; they wish to be able to search signals that leave the country at the border but on US soil.

Posted by John Thacker | March 17, 2008 1:24 PM

And of course the whole thing is muddied because the intelligence agencies don't want to talk about what they do, any details are classified, and people are reduced to arguing over constructions of the terms in the poorly written FISA law. The latter has the result that people who would like to interpret the terms narrowly in practice simultaneously make arguments using the widest possible construction when arguing that the intelligence services already have sufficient power, and vice versa. So we get the civil libertarians arguing that the intelligence services can already legally perform intercepts that the intelligence services claim that they cannot. (Or at least claim that some FISA judges disagree.)

Posted by John Thacker | March 17, 2008 1:31 PM

When I talk about wireless and a reasonable expectation, that's why that, e.g., cellular signals outside the US can be intercepted freely, with the US person calls discarded later (but within 48 hours according to the relevant executive orders), but cellular signals inside the US cannot be intercepted without specific warrants.

Posted by John Thacker | March 17, 2008 1:32 PM

Sorry, but if a guy in Mosul is talking to a guy in Ramadi about where they stashed a kidnapped soldier I think that the government should be able to listen in, and I don't care that the call was routed through Florida. Frankly I think that the government should also just issue a notice that ALL calls to Iraq, Afghanistan, Patistan and Iran are subject to being tapped, and if you don't like it, too bad.

Posted by Mike in NY | March 17, 2008 1:34 PM

It's a brave new world JT, but you have to ask yourself wht the relative good is. Searching through terabytes of data everyday fro specific keywords or patterns is simply forces your quarry to adopt new protocalls, WHILE allowing you to continue looking at everyone else. This seems like the old, "if you're innocent, then why worry?" They have to find better end intelligence, and target things specifically, and for that they should have the warrant. Now, if they have narrow searches going on, based on intelligence, like a keyname or something, then the court should be able to allow a spcific amount of looking for a specific amount of time. But it cannot be always on, all the time. This is too intrusive.

The argument that there is simply too much to look at to be so specific, may or may not be true. If it is true, they need to start thinking other ways about this. It isn't the innocent person's fault that their tech isn't keeping up...

Posted by SwissArmyD | March 17, 2008 1:35 PM

To tie together a couple of the day's themes, Mr. Thacker's post illustrates nicely that journalists can't be trusted to report on this issue (or any other which is somewhat complex), and public debate is . Mr. Thacker is, I believe, an attorney, and thus sensitive to the legal niceties that most bloggers, journalists, and commentors zoom right past. And his discussion of the (very simple, really) technical aspect of the matter is far more detailed than anything you're likely to see in the average editorial, although I could imagine it appearing in an investigative "special report" kind of thing.

Most of these sorts of discussions are conducted by people who have no idea what the actual issues are; the reason they have no idea is because they read newspaper articles and watch TV reports which don't discuss the real issues. Instead, they offer sound bites from advocacy groups and politicians. Thus the bizarre obsession with library records in the PATRIOT Act.

What is to be done, I have no idea, other than to read blogs with comment sections populated with actual issue experts.

Posted by Rob Lyman | March 17, 2008 1:44 PM

That should be "...and public debate is therefore distorted."

Damn insurance agents returning my calls!

Posted by Rob Lyman | March 17, 2008 1:47 PM

The first critical step in the process of "connecting the dots" is collecting the dots. The higher percentage of the total dots you collect, the greater the chances that you will be able to connect them before the fact, rather than after. The greater extent to which the dots collected by separate collectors are shared with other collectors, the greater the chances that the dots will be connected before the fact, rather than after.

Posted by Ed Reid | March 17, 2008 1:51 PM

In addition to what John Thacker says there are additional problems. Because of the design of the internet almost any traffic that uses it as it's backbone (i.e. Packet Switched Networks) travel through the US thus making even foreign surveillance impossible using Megan's rules. Additionally say one of the backbone routers go down in Asia. That traffic may end up routed through the US, and the what was a legal surveillance operation is now illegal.

Posted by Chad | March 17, 2008 2:30 PM

As I understand it, the only objection to using the FISA court is that it takes a relatively long time to go through the process. Even the internal process to authorize a warrantless search takes 4-6 hours; the internal process to be ready to go to the FISA court can take up to 24 hours. When speed is of the essence, the FISA process is simply too unwieldy. When speed is not of the essence, going through the FISA court is not too onerous.

For those people who point out that there is an "after-the-fact" process for obtaining FISA approval, let me point out that the internal process is still unwieldy, simply because the bureaucrats want to make sure that the after-the-fact warrant will be approved before they sign off on it. As well they should, but people who have never worked in a bureaucracy constantly underestimate how much time and effort is involved in simply getting things done.

Posted by Rex | March 17, 2008 3:30 PM

Just off the top of my head, it seems tailor-made for spying on Arab Americans who organize peacefully to lobby against America's Israel policy.

Since we are solely talking about surveillance of cross-border communications, I don't see how this applies.

I am coming to the conclusion that Megan doesn't even seem to understand the scope of the FISA proposal. I mean, how on earth would she come up with this example may apply, where she doesn't address the cross-border element at all?

Posted by Al | March 17, 2008 4:50 PM

Just off the top of my head, it seems tailor-made for spying on Arab Americans who organize peacefully to lobby against America's Israel policy.

Since we are solely talking about surveillance of cross-border communications, I don't see how this applies.

I am coming to the conclusion that Megan doesn't even seem to understand the scope of the FISA proposal. I mean, how on earth would she come up with this example may apply, where she doesn't address the cross-border element at all?

Well it could apply if any member of this hypothetical group of Arabs or AIPAC was communicating with a known or suspected terrorist who was talking to them from outside the United States. Some might consider that a feature not a bug.

Posted by Thorley Winston | March 17, 2008 7:13 PM

Ed Reid,

Yes, imagine if we'd had enough dots to connect on 9/10! Oh wait, we did. Maybe the dot-gathering phase is not the problem.

Posted by CTD | March 17, 2008 7:29 PM

My major objection to FISA is that it involves the judicial branch in a matter traditionally not considered a judicial matter -- foreign intelligence surveillance. National security matters are not criminal matters, they are policy matters.

Accordingly, the proper act is for Congress to replace the judicial branch FISA courts with a set of administrative law courts, required to make reports to Congress, and with appointments to the administrative law courts requiring Senate confirmation. That would keep national security matters under the aegis of the policy-making branches, instead of improperly involving the courts.

Posted by Oildrilling Lunatic | March 18, 2008 1:29 AM

"Sorry, but if a guy in Mosul is talking to a guy in Ramadi about where they stashed a kidnapped soldier I think that the government should be able to listen in, and I don't care that the call was routed through Florida."

When the House Intelligence Committee heard testimony on how the search for those that were kidnapped was delayed 10 hours to get legal authority for a wiretap, one of the Democrats (I think it was Reyes but can't remember for sure) said that they should have simply ignored the law in this case, assuming that the communications weren't going through the US.

In other words, rather than fix the law, politicians want to put the burden on the people involved. Their solution is that the military and administration should simply break the law when such actions are needed to protect all of us, and then the opposing party can nail them for it later. The Democrats want to have it both ways - they can claim that nothing that happens is their fault, because a true patriot would have broken the law to protect people and thus the law was not the real problem; and whenever the law is broken, they can selectively prosecute and persecute the people that fell into their trap.

Posted by Ann | March 18, 2008 9:11 AM

CTD,

"Yes, imagine if we'd had enough dots to connect on 9/10! Oh wait, we did. Maybe the dot-gathering phase is not the problem."

Perhaps you have forgotten the now-fallen "Gorelick Wall", which effectively separated sub-sets of the collected dots among agencies.

Also, it is far easier to connect the dots after the fact, as the congressional intelligence committees and others had the opportunity to do.

My point, which you chose not only to ignore but also to obfuscate, was that the likelihood of avoiding another 9/11 improves with more intelligence and better coordination.

Perhaps you'd rather just spend the "peace dividend" again, until the next time. My guess is there would still be enough dots available after the fact to figure out what happened.

Posted by Ed Reid | March 18, 2008 9:30 AM