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Abusive? Sure. Illegal? Probably Not.

October 10th, 2008 · 2 Comments

Normally, I’d be all over a new wiretap abuse story like piranha on a cow, but I’ve been wiped out sick for a couple days now, so I’m really only just getting to pay any attention to the reports from NSA whistleblowers who describe their practices of recording and transcribing, en masse, the conversations of innocent military personnel, journalists, and aid workers—passing around the juicy bits for their own amusement.

Obviously, this is pretty appalling. But what I haven’t seen many people pointing out, with the exception of one poster at the Heritage blog, is that it was also probably perfectly legal at the time, though I wouldn’t be surprised if it at least violated internal NSA policy.

The key point here is that the conversations they were intercepting appear to have been satellite-phone communications between targets overseas and people back in the U.S.—which I’m assuming would have been classified under FISA as “radio” communications. Now, FISA (even old, pre-gutting FISA) covered radio communications between two parties within the U.S., and it covered international radio communications if the target of the interception was a particular party located in the U.S., requiring a FISA warrant in either case. But a radio intercept where the target was the party overseas? That has always been fair game; they’ve never needed a warrant to conduct that sort of surveillance. If that’s what all these intercepts were, then it’s nothing to do with any secret programs authorized by Bush; that sort of surveillance was already legally unrestricted.

Tags: Privacy and Surveillance



2 responses so far ↓

  • 1 Peter Orvetti // Oct 14, 2008 at 5:05 am

    Of course, legality and propriety are very different things.

  • 2 Julian Sanchez // Oct 14, 2008 at 9:02 am

    Hence the headline.