One of the things we keep hearing from the apologists for the FISA bill that just passed is that it provides wonderful new protections for Americans abroad. I’m not so sure. (See update—I jumped the gun slightly here.) I’ve run this by some ACLU attorneys I know, who are studying the bill to attempt to determine whether my suspicion is well-founded, but let me draw your attention to the specific language at issue:
The Foreign Intelligence Surveillance Court shall have jurisdiction to review an application and to enter an order approving the targeting of a United States person reasonably believed to be located outside the United States to acquire foreign intelligence information, if the acquisition constitutes electronic surveillance or the acquisition of stored electronic communications or stored electronic data that requires an order under this Act, and such acquisition is conducted within the United States.
Emphasis mine. What’s important to bear in mind here is that “electronic surveillance,” for purposes of FISA, does not actually mean anything we’d colloquially think of as electronic surveillance. It covers only specific kinds of interecepts that fall under one of the statute’s complex overlapping definitions. Under those definitions, interception of a wire communication between two parties, both of whom are known to be outside the U.S., is not electronic surveillance. Interception of a radio communication is not electronic surveillance even when one party is in the U.S., provided it’s the person abroad who’s the target. And this is true whether the interception takes place abroad or at a U.S. telecom hub.
What does that mean? Well, if I’m reading this right, it means that surveillance of U.S. persons abroad requires court authorization only when the intel agencies are intercepting communications that would have been covered under the old definitions—which is to say, for instance, a wire communication from a person overseas to someone at home. But that kind of communication would have required a full-fledged FISA warrant under the old rules, not because the U.S. person abroad was protected, but because their interlocutor at home was protected. Which is to say, the only “new” protections provided would be for surveillance that was already protected (albeit for slightly different statutory reasons) under the old rules. Meaning that U.S. persons abroad wouldn’t have any rights under this bill that they didn’t effectively have before.
Needless to say, I’m not a lawyer, and I’m not sure my interpretation here is correct. On the other hand, the lawyer I spoke to didn’t think it was obviously wrong either. Anyone out there (with relevant expertise) have thoughts on this?
Update: Whoops, no, this is sort of weird, but there’s a separate section governing “other acquisitions” that also appears to require an order. I’m not sure why it’s done quite this way, but it looks like there’s broader coverage than I initially thought on the basis of the previous passage.
That said, coverage here is still limited to “intentional targeting.” That is, it would appear that they can still be sweeping up, in bulk, all traffic passing through the U.S. known to be foreign-to-foreign, regardless of who the parties to the communications are.