Julian Sanchez header image 2

photos by Lara Shipley

About that Secret Ruling

August 8th, 2007 · 3 Comments

The more I think about it, the more curious I become about the contents of the secret FISA court ruling first reported by the LA Times, which supposedly sparked the sudden need for reform. The article suggests that the ruling had forced intelligence agencies to treat communications between two parties, both overseas, as domestic surveillance (with its attendant oversight requirements) so long as the communication was routed through U.S.-based switches. I won’t say that’s impossible, but it seems awfully implausible.

For one, and while I realize this is not exactly a close legal analysis, it would run contrary to the general spirit of late-20th-century privacy jurisprudence, which has relied on the principle of “people not places”—individuals and their expectations of privacy are what matters, not the particular mechanism by which information is obtained.

More importantly, it may be “recently” that foreign-to-foreign telecom traffic began routinely passing through U.S. switches, but come on, it’s not that recently. Is it really only in 2007 that a court found occasion to rule on whether such intercepts must be treated the same way as domestic ones? And did the famously deferential FISA court really issue a ruling that barred intercepts between foreign parties whose communications passed through the U.S.? On what grounds? The existing language of FISA concerns itself with the identities of the communicating parties, not the locus of interception. What basis would a judge have for suddenly deciding this is relevant? I suppose anything is possible, but my overwhelming instinct is that something else is going on here.

Tags: Privacy and Surveillance



3 responses so far ↓

  • 1 Gordon Lightfoot // Aug 8, 2007 at 10:00 pm

    I don’t know whether this will be useful to you, but I have some familiarity with the problems of this kind of intercept (basically, monitoring cell phone communications through telecom providers), and what I had assumed was that the laws had been rewritten to deal not with foreign communications routed through the US (maybe there was a problem there too, but it couldn’t have been that important), but with communications between, say, a terrorist suspect in Jordan and a US number. The way the laws originally worked, it wasn’t legal to intercept these kinds of communications because US numbers were assumed to be used by US citizens, and US citizens were considered off limits for surveillance. This poses something of a problem though, if you think your job is to prevent, among other things, terrorist attacks on our own soil. This is why the whole concept of “minimization procedures” was invented to begin with, on the premise that US citizens will definitely fall within the surveillance umbrella. There was a relatively cryptic statement made by Rep. Lungren that went like this:

    “It does nothing to tear up the Constitution.
    If an American’s communications are swept up in surveillance of a foreigner, he said, “we go through a process called minimization” and get rid of the records unless there is reason to suspect the American is a threat.”

    I take this as a de facto admission that at least one of the purposes of this bill was to provide an opening for the surveillance of Americans.
    What surprises me is that the Attorney General is the one who determines how to define a “threat” and what the “minimization” procedures are. I personally see how there is a problem with FISA as it stands-I think that if a terrorist is making phone calls to the US, it would be good to follow that trail. But I don’t like the fact that the law was intended to sideline judicial oversight practically altogether.

  • 2 Grant Gould // Aug 9, 2007 at 5:28 am

    My guess (as someone tangentially in the telecom business) is that the big question is when the location of one of the parties can’t be determined within the FISA retroactive-permission window. That is — the US monitors a conversation between party A and party B, knows that A is in Pakistan, but can’t easily or quickly figure out where B is.

    There are plenty of technologies out there — Voice over IP springs to mind, but some wireless network testing devices could also do this and much more cleanly — where a simple inspection of the conversation’s route through the phone network would not be adequate to determine the physical location of one party. As FISA depends on knowing that physical location, this is clearly trouble.

  • 3 Gordon Lightfoot // Aug 9, 2007 at 7:00 am

    I should add that there is a way to get a warrant through FISC in the scenario I outlined, but where I worked, that was never considered. American comms were just chucked out. I had originally assumed the reason for that was that it was just too much of a pain in the ass, or that it didn’t jive with our mandate, but I was never familiar with that end of things, so I couldn’t say for sure what the reasons were, and what I’ve read suggests that FISC is pretty accommodating. I’m honestly at a loss regarding what the point of this new amendment was, outside of reducing judicial oversight. They might be having problems getting permission from judges to do large scale operations-data harvesting type surveillance ops, which it seems can now be authorized by DIRNSA and the Attorney General. But this may just be yet another maneuver by the president to expand executive authority, since that seems to be his favorite pastime.

    I remain puzzled by the Lungren quote. Presumably he was just talking out of his ass. The thing is, what he seems to be suggesting is impossible according to the logic of FISA and the Fourth Amendment. If American communications are “swept up” in surveillance operations, they have to be tossed out. It shouldn’t be possible to do the sort of thing with them that would be necessary to determine whether the American citizens were actually a “threat,” since that is called “surveillance”. So maybe they are getting rid of the material, maybe they aren’t. If they’re using data harvesting systems that are sucking in a lot of American comms, and those comms are getting analyzed for threat content, then I think that would constitute a major privacy issue. Since all this stuff is classified, it’s really hard to know what’s going on, and to what extent American traffic is getting sucked into foreign intelligence operations to begin with.

Leave a Comment