Risen’s State of War Preview

Orin Kerr gives us an advance look at James Risen’s State of War : The Secret History of the C.I.A. and the Bush Administration.

Reading over this part of Risen’s book, it seems that most of the new surveillance program was not about domestic surveillance at all; most of it was about the surveillance of entirely international calls and e-mails that just happened to be routed through U.S. networks in the course of delivery. According to Risen, the program typically monitored about 7,000 individuals overseas at any given time, as compared to about about 500 people who were located in the United States. From an operational perspective, then, the big difference between prior NSA practices and the new program was that the NSA was using a back door into domestic privider switches in the U.S. to monitor communications that were mostly foreign to foreign.

Kerr then judges that FISA was not violated because,

[M]onitoring communications both sent to and received by individuals located outside the United States is not prohibited by FISA. This surveillance is technically domestic — it occurs within the United States — but it does not involve monitoring “a person in the United States.” So if I’m understanding things correctly — always a big “if” when you post after 2 am — most of the program did not violate FISA.

Kerr than commits the Farber Fallacy:

Now here’s the part I can’t quite figure out. If most of the program dealt with international calls, and didn’t violate FISA, why would the program be designed so that it also tapped the calls of 500 or so people in the United States? If the communications tapped were wire communications, then tapping those communications inside the United States seems to clearly violate FISA under 1801(f)(2). So it seems like there are two possibilities: either the communications were wire communications and the designers of the program thought that the 500 people tapped in the U.S. were of sufficient importance (potential terrorists cells, etc.) that they didn’t want to cabin the program to deal exclusively with foreign-to-foreign calls, or else the communications were electronic communications and perhaps the monitoring didn’t violate FISA. (Can anyone else tell based on Risen’s excerpt whether the communications were wire or radio? Maybe it’s just late, but I’m not sure.)

This is the NSA, not the FBA. They don’t do wiretapping. The communications were certainly electronic. My non-expert reading of FISA is that it is about electronic surveillance generically, not wiretapping in particular. From the definition section:

(f) “Electronic surveillance” means—
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

The plain wording would seem to cover data mining. It would be a very odd technical reading of the statute to say that it would exclude, say, cellular phone or VOIP conversations because there are technically no “wires” involved.

FILED UNDER: General
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. FredW says:

    VOIP would be convered since it definately goes by wire (as TCP/IP packets). So would most cell calls ince they go by land line between my cell tower and your cell tower. If we use the same provider and are in the same cell then maybe it wouldn’t apply but even then I wouldn’t be surprised it the call first went (via wire) to a switch somewhere.