Courtesy of The New York Times: “Officials Say U.S. Wiretaps Exceeded Law .” An internal review has determined that since the passage of the FISA Amendments Act last year, there has been systematic “overcollection” of the strictly domestic communications of U.S. persons, for which intelligence agencies are still supposed to seek traditional FISA warrants. For anyone who followed the debate, this should not be remotely surprising.
Following the exposure of the NSA’s extrajudicial surveillance program, recall, we were first told that intercepts simply could not be authorized with the necessary speed and agility under the existing FISA regime. Then the program was, in fact, placed under the existing FISA regime. But this lasted for only a few months before Republicans began leaking word of a top-secret FISA court decision that had supposedly reinterpreted FISA, imposing a blanket obligation to obtain a judicial warrant for the interception of foreign-to-foreign communications that crossed U.S. switches. Anyone who knew the first thing about the FISA statute understood that this could not possibly be true: The statute is complicated, but it is clear enough on this point that there is simply no way to read such a requirement into it. Eventually, a cornered Justice Department official had to admit as much, suggesting that the actual problem was with e-mail and online communications where the locations of sender and receiver could not reliably be determined.
This raised an obvious question about the FISA Amendments Act, which (we were assured) preserved the warrant requirement for strictly domestic communications, with a laxer standard only for intercepts where at least one side was abroad. If the problem is that you’re having trouble telling where communications are coming from and going, how are you going to observe all these nice restrictions? The obvious next ratchet: If location can’t be reliably determined, we have no choice but to apply to all communications the lax standard we’ve already blessed for one-side-foreign exchanges.
Also not terribly surprising, but perhaps especially disturbing, is that the NSA appears to have attempted to wiretap a member of Congress who was on an overseas trip without bothering with a court order. I suggested a little over a year ago that if we examine the history of executive surveillance, we should fear not the indiscriminate wiretapping of innocent private citizens, but the potential for improper information collection about political actors. I’d prefer to have been wrong on that score.