FISA and Your E-Mail

By Jeralyn, Section Legislation
Posted on Wed Mar 05, 2008 at 12:36:44 PM EST
Tags: FISA (all tags)

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A FISA compromise is in the works. At a meeting yesterday, sponsored by the American Bar Association, Kenneth Wainstein, assistant attorney general for national security, pointed out something that hasn't gotten wide attention: Foreign to foreign doesn't really mean that when it comes to e-mail.

At the breakfast yesterday, Wainstein highlighted a different problem with the current FISA law than other administration officials have emphasized. Director of National Intelligence Mike McConnell, for example, has repeatedly said FISA should be changed so no warrant is needed to tap a communication that took place entirely outside the United States but happened to pass through the United States.

But in response to a question at the meeting by David Kris, a former federal prosecutor and a FISA expert, Wainstein said FISA's current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States. The real concern, he said, is primarily e-mail, because "essentially you don't know where the recipient is going to be" and so you would not know in advance whether the communication is entirely outside the United States.

Corrente Wire has more. And Raw Story reports the FBI wants the telecoms to get immunity even if they acted in bad faith.

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FISA and Your E-Mail | 10 comments (10 topical)

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The FBI.... (5.00 / 1) (#1)
by desertswine on Wed Mar 05, 2008 at 12:50:20 PM EST

Now there's an outfit you can trust.

It's like Hoover.... (none / 0) (#2)
by kdog on Wed Mar 05, 2008 at 01:06:56 PM EST

never left. Have they ever followed the rules...ever? I doubt it.


He Left? (none / 0) (#4)
by squeaky on Wed Mar 05, 2008 at 01:17:59 PM EST

Nah, I think he is still in the closet, somewhere....


Watching his massive.... (none / 0) (#5)
by kdog on Wed Mar 05, 2008 at 01:36:20 PM EST

stash of confiscated porn for which the rightful owners were imprisoned, no doubt.

It's good to be the king!


: He May Be More Than Just (none / 0) (#6)
by squeaky on Wed Mar 05, 2008 at 01:42:18 PM EST

Watching... The closet is pretty big from what I have heard.

Isn't McConnell being dishonest (none / 0) (#3)
by Joike on Wed Mar 05, 2008 at 01:15:06 PM EST

when he says they need a warrant

"to tap a communication that took place entirely outside the United States but happened to pass through the United States"?

The 4th Amendment only applies to US citizens. Why would the location of a conversation between two non-citizens have any bearing on the Fed's ability to eavesdrop?

This is a serious attempt to legalize the subversion of the 4th amendment and to cover the tracks of the illegal activity of the Bush Administration and the telecoms who were willing "to be patriots in the service of Bush - for a price."

If the 4th Amendment only applies when the government wants it to, then it doesn't exist and the rest of the Constitution is just a collection of nice sounding words.

I can't believe that some Democrats are conspiring to hand a huge victory to an unpopular President on an issue that is a winner for Democrats. What cowards.

: Jeralyn can clear this up, but I believe (none / 0) (#8)
by jawbone on Wed Mar 05, 2008 at 04:48:35 PM EST

the Constitution covers "persons," citizenship not required for some things unless specified.

Another disturbing point (none / 0) (#7)
by standingup on Wed Mar 05, 2008 at 03:22:04 PM EST

is the unchecked power granted to the Attorney General. I am behind on the FISA legislation and this may be old news yet it strikes me as a another dead end for any recourse for violations.

"This is not amnesty," Wainstein said at the meeting. "This is targeted immunity" for companies who meet requirements specified in the Senate bill that include having received an attorney general's certification that their assistance was determined to be lawful.
...
Contrary to current practice, the Senate bill would halt such lawsuits if the attorney general certifies that the assistance provided by the telecom carrier is lawful. The only check on that certification would be a court review as to whether the attorney general "abused" his discretion, which experts said yesterday is the lowest possible standard of judicial review.

So the AG determines what is lawful and the only check on the AG is a review that I fear will be safely left unchecked when the AG uses the "national security" card.

This Reminds Me (none / 0) (#9)
by BDB on Wed Mar 05, 2008 at 05:01:40 PM EST

I've been meaning to put together a post at Corrente on the theory du jour that the telecoms have indemnity agreements with the U.S. government. Might as well put that incredibly boring Appropriations Act and Anti-Deficiency Act training I had to sit through to good use.

Let me also say that I know a lot of government lawyers, including me, who are appalled at the Administration's lawlessness in terms of wiretapping and warrants. Having been trained to follow the Constitution and other statutes and advising our clients to do just that every day (and reporting them when they don't), it's been discouraging to say the least to see those at the highest levels violate these laws and then argue that they can do so with impunity. I can guarantee you that a Grade 11 couldn't get away with any of this crap, I don't see why a President should.

While I'm appalled, I'm no longer surprised. I suspect when the truth comes out in twenty years, it's going to be much worse than anyone imagines.

And for the next President who might be too busy trying to fix the government to conduct extensive investigations into the past, I offer a modest suggestion, simply waive executive privilege and release documents. A lot of the heavy lifting can be done by civil rights attorneys who can refer evidence of specific wrongdoing to their local US Attorney.

Every single email (none / 0) (#10)
by scarshapedstar on Wed Mar 05, 2008 at 09:24:42 PM EST

The feds have been Hoovering up every single email passing through the United States.

Even PPJ's.

Even Wile E Coyote's.

Even if you're emailing your mom, or your wife. It's in the dragnet. You can comfort yourself if you don't think you've been using keywords that the NSA's data mining algorithms won't hit on, but there's no telling who has access to that information - literally, it's classified. You just have to trust that nobody is looking through your private communications, and that if they do, they aren't doing it for kicks or writing down your credit card number or anything. The notion that the NSA has the ability to determine which emails are "terrorist communications" without reading their contents defies not only common sense, but the Uncertainty Principle.

The government is reading your mail. Conservatives used to hold this up as an example of the nightmare of life in the USSR. Now it's come home, comrades.

Four legs good...