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On Tap

The New York Times calls it an "unnecessary and dangerous expansion of President Bush's powers" and warns that it will "allow the government to intercept, without a warrant, every communication into or out of any country, including the United States." My former colleagues at The Washington Post call it "reckless" and fret that "the government will now be free to intercept any communications believed to be from outside the United States (including from Americans overseas) that involve 'foreign intelligence'--not just terrorism. ... Instead of having the Foreign Intelligence Surveillance Act court ensure that surveillance is being done properly, with monitoring of Americans minimized, that job would be up to the attorney general and the director of national intelligence." Both papers blasted congressional Democrats for bowing to pressure from the administration and passing such an unacceptable law. And House Speaker Nancy Pelosi is indicating that Congress will revisit the provision, which sunsets in six months in any event, when it returns from its break.

Allow me a note of dissent--and defense of the Democrats who voted for the change.

Without knowing facts that remain stubbornly classified, I cannot assess whether the new changes to FISA are wise or not as long-term policy. They do not, however, seem outrageous to me; nor does the Democratic decision to give them to the president on a short-term basis. What's more, to consider beyond the pale this sort of wiretapping with no oversight from the courts of communications between targets overseas and Americans at home, you'd have to be outraged at much more than the new law's changes to the FISA. You'd have to be outraged at the FISA itself. Indeed, all of the horrors the Times and Post fear in the new law were permitted by the original one it supposedly gutted.

"Hang on," I hear you cry. "Wasn't the 1978 FISA a restraint on government surveillance power? Didn't it put a court between the spooks and their targets? And doesn't this law remove that court in vast numbers of cases?" Yes to all. But the story, at least as regards overseas communications, is a lot more complicated than that.

The 1978 law was intended to regulate domestic wiretapping, not overseas collection. Its mind-numbing definition of "electronic surveillance" requiring approval by the secret court it set up hinged simultaneously on the technical modes of interception the government used, the geographical location in which the spooks tapped the lines, and the location of the target of the surveillance. Roughly speaking, here's how it worked:

If the surveillance target was physically within the United States, the law covered his communications irrespective of what means the government used to intercept them. If the target was abroad, however, the situation changed markedly--even if he was calling someone in the United States. If the government sought to acquire the communication by tapping a wire line domestically, the communication was subject to FISA. On the other hand, if the agency tapped the line abroad, the communication was exempt from FISA. In other words, as long as the government focused on targets overseas using operations overseas, FISA had nothing whatever to say about the matter. The mechanism protecting Americans whose communications got scooped up in that situation was not judicial review of the surveillance but more general prohibitions against retaining information on Americans that do not constitute legitimate foreign intelligence.

The rules were even more permissive with respect to radio communications--which included many phone calls bounced off of satellites. In that situation, if the target was abroad, FISA did not apply even if the physical interception took place domestically. Congress wrote the law this way specifically to exempt from its coverage the National Security Agency's practice of vacuuming up without warrants as much radio traffic as it could get. In other words, the original FISA would have allowed exactly what the Post and Times criticize the new law for doing--provided either that the NSA tapped a physical wire outside of the sovereign territory of the United States or captured only radio signals.

At the time Congress passed FISA, satellite communications carried the bulk of overseas calls (exactly how much is disputed). With the advent of fiber-optic cables, a lot of the traffic has migrated to wire. So the technical assumption of the original FISA's exemption is now out of date. What's more, the hard geographical distinction between domestic and foreign surveillance has eroded as well. Intelligence agencies no longer necessarily know with any certainty where their target is. A cell phone with a foreign number could easily turn out to be in the United States. And then there's the fact that a substantial percentage of all telecommunications traffic worldwide now passes through American cable, meaning that overseas-to-overseas calls and e-mails can be intercepted using domestic collection. All of this made something of a mess out of the old law--a mess in which a large volume of communications never intended to be covered by FISA became subject to its requirements.

The guts of the new law reside in a single sentence: "Nothing in the definition of electronic surveillance ... shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States."

On its face, this sentence does two things. First, it eliminates the difference between wire and radio communications. If the NSA is now trying to vacuum up the entire stream of data flowing into the United States and subjecting it to a giant data-mining operation, as has been reported, it no longer matters whether the agency is accomplishing this by physically tapping fiber-optic lines outside of the territorial confines of the country or at facilities on its shore. For purposes of the law, it also no longer matters whether the signal comes in over cables or from a satellite. Because of the way technological shifts have brought ever-more communications under the FISA, this change may indeed greatly increase the volume of communications acquirable without a warrant. But it's hard to see any real civil liberties significance in letting the NSA do with wire communications what it has always been able to do with radio communications. Do you even know which technology carries your overseas calls?

The second change is a relaxation of the strict geographical requirements of FISA. To avoid going to the FISA court, the government no longer needs to know its target is abroad. It need merely reasonably believe as much. This change does have civil liberties consequences. It will presumably increase the amount of surveillance of people who are more likely than not to be outside of the country but who may turn out to be here after all. I'm not at all sure, however, that this relaxation is a bad idea. The more mobile communications become, the more paralyzing a firm geographic rule might be. Sometimes, you know a terrorist's phone number or e-mail address before you can pinpoint his location with certainty. If you reasonably believe he's not here, should you really have to get a court order before checking out what he's saying and to whom?

To know whether the new law represents a strong long-term policy response to the technological changes now challenging FISA, I would have to know a lot more about the NSA's surveillance technologies both in the 1970s and now than is public. I would want to know also how the NSA interprets phrases like "reasonably believed to be located outside of the United States" and how it means to handle situations in which such people turn out, notwithstanding the agency's reasonable belief, to be running around Cleveland.

But for whatever it's worth, had I been a Democrat on Capitol Hill, I would not have opposed this change as a six-month interim step while I studied such questions. And I would not have felt that I had sold out, surrendered, or caved in by giving the intelligence community what it says it needs while giving myself the time to decide if I agreed.

By Benjamin Wittes