It Keeps Getting Worse

The other day I wrote a post entitled "Why the new FISA bill is worse than you think." The title of this post really should be "Why the new FISA bill is worse than I thought."

The focus of my previous posts has been on the interaction between section 105A of the new bill--which redefines "electronic surveillance"--and the other provisions of FISA. I wrote:

By carving out a large category of surveillance activities from the definition of “electronic surveillance,” the bill effectively exempts such surveillance from FISA altogether. And while the bill purports to establish conditions and procedures for conducting warrantless surveillance, these requirements are effectively optional and, in any case, there is no penalty in the statute for disobeying them.

I stand by all that. I think the procedures laid out in section 105B are, for all intents and purposes, optional. They only come into play if the executive branch chooses to invoke them.

But the more I look at the scope of the authority granted under 105B, the more I can see why the government would want to invoke it. Above and beyond any concerns related to the FISA framework itself, 105B appears to authorize the circumvention of a number of other laws and thereby significantly increase the government's ability to secure information from private parties.

I first raised this concern in a comment over on one of Marty Lederman's posts, and it started a discussion that Just an Observer and Marty have now expanded upon significantly.

Before I get to that, though, let me take a step back and explain what I'm talking about. Here's the key language from section 105B:

Notwithstanding any other law, the Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States . . .

Now, as I explained yesterday, 105B only applies when the acquisition at issue does not involve "electronic surveillance." So, with respect to the interception of contents of communications, 105B does not allow for any warrantless surveillance above and beyond what 105A allows (i.e. anything "directed at" someone outside the U.S.).

But what 105B does do is provide the government with the authority to collect, without warrants, just about any non-content information, so long as it "concerns" people believed to be located outside of the country.

That's significant because FISA is not the only law that requires the government to seek warrants. There are a number of other laws (such as the Communications Act, the Stored Communications Act, and the Pen Register Statute) that either require the government to get a warrant before collecting information or bar the custodians of that information from turning it over absent a court order.

But 105B's provisions apply "notwithstanding any other law," meaning that once invoked, this authority trumps all other statutes. As Marty observes, "perhaps the evisceration of FISA is the least of it."

Moreover, there is also a lot of information out there in the hands of people or organizations who are under no obligation to provide it to the government absent a court order. But under 105B, the "communications service provider, custodian, or other person" in possession of the information must turn it over. Cooperation is compulsory. To quote Marty once again, "the compulsory service provisions do appear to vastly increase the ability of the NSA to enlist the service of many private parties to obtain information that once would have been difficult or impossible for NSA to acquire, thereby dramatically increasing the breadth of NSA surveillance as a practical matter."

Just an Observer puts it this way:

105B is a powerful new government tool for warrantless surveillance directed at a whole new set of platforms where compulsory process is needed. It is vastly easier to issue an administrative "directive" under 105B than to get a court order. The recipients of such directives can be the legion of ISPs, email hosts such as employers, colleges, etc., and the fragmented Internet hosting industry in general.

105B all by itself is national security letters on steroids, the equivalent of administrative warrants allowing direct-connect, real-time acquisition of a universe of data that never was part of the TSP.

Of course you'd never know any of this if all you did was read the paper and watch the news. And I'm not convinced that even a fraction of the members of Congress who voted for this bill understand what it actually does or how it interacts with other provisions of FISA or other laws. Both 105A and 105B appear to vastly alter the pre-existing legal landscape in ways that dramatically increase the ability of the NSA to surveil and collect information about Americans. To put it bluntly, I find sections 105A and 105B of this bill to be significantly more troubling than any provision contained in the Patriot Act. And the Patriot Act was passed by a Republican-controlled Congress in the immediate aftermath of 9/11. How ironic that the real blow to civil liberties would come from a Democratic-controlled Congress six terror-free years later.