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A Specific Problem

July 11th, 2008 · No Comments

Since the previous post is long and a little technical, I want to pull out one point more succinctly. When Congress amended FISA in the years after 9/11 to allow for “roving” wiretaps, they made some other balancing changes in the law. In particular, since FISA orders can be granted based on a description of a target whose name is not known, Congress added the word “specific”—a FISA application must contain a description of the “specific” target. And they did this because once you let the tap “rove”—once you let intelligence agencies determine on the fly what phone or email or computer the target is using today—there’s the worry that the tap can “rove” to any communication channel being used by anyone meeting the description. Hence “specific,” meaning “you’ve got be talking about some particular person or group, not just stipulating the general characteristics that make anyone subject to surveillance.”  Congress recognized this as a potential problem, and made a point of inserting that word in 2006, to address it.

The very same legislators crafted the FISA amendments that have just been signed into law. Presumably, they all remembered inserting the word “specific” just two years earlier, and they remembered the reason why. The new FISA amendments do not contain that word.  Why?

Tags: Law · Privacy and Surveillance