What Does "Concerning" Mean?
This article in Sunday's Washington Post gives some behind the scenes insight into how last week's FISA bill came to be. It's worth reading in its entirety, but this passage in particular caught my eye:
Surveillance under 105B can only be authorized subject to certain conditions, one of which is that "the acquisition does not constitute electronic surveillance." That provision incorporates by reference the FISA's definition of "electronic surveillance," which, thanks to section 105A, pulls back in the "directed at" language.
In other words, at least with respect to the interception of contents of communications, I don't see what is gained by using the word "concerning" in lieu of "directed at."
It's possible, though, that this difference in language is significant with respect to the gathering of non-content information, i.e., information that is not considered "electronic surveillance" under FISA but the collection of which is regulated by other laws.
Perhaps someone more knowledgeable than myself about these matters can weigh in on this?
Other provisions in the White House-backed bill added to the Democrats' discomfort. For instance, a Democratic bill would have authorized warrantless surveillance "directed" at individuals reasonably believed to be outside the United States. But the administration's draft -- and the one passed into law -- permitted collecting data "concerning" people reasonably believed to be outside the country. Democrats said the difference between collection efforts "concerning" foreigners and "directed" at foreigners could be enormous, allowing intelligence officials far greater leeway.With all the focus on section 105A of the bill, which uses the "directed at" language, I hadn't really noticed (or at least appreciated) that section 105B uses instead the phrase "concerning." Section 105B (which authorizes warrantless surveillance under certain conditions) states:
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 . . .I'm not sure what to make of this difference. My first thought was that this might allow warrantless surveillance of purely domestic communications that happen to "concern" people believed to be overseas, i.e., a conversation between my friend and I about Osama bin Laden (or Tony Blair or the Pope, for that matter). But I don't think that's the case.
Surveillance under 105B can only be authorized subject to certain conditions, one of which is that "the acquisition does not constitute electronic surveillance." That provision incorporates by reference the FISA's definition of "electronic surveillance," which, thanks to section 105A, pulls back in the "directed at" language.
In other words, at least with respect to the interception of contents of communications, I don't see what is gained by using the word "concerning" in lieu of "directed at."
It's possible, though, that this difference in language is significant with respect to the gathering of non-content information, i.e., information that is not considered "electronic surveillance" under FISA but the collection of which is regulated by other laws.
Perhaps someone more knowledgeable than myself about these matters can weigh in on this?
posted by A.L. at 11:22 PM
4 Comments:
That is fascinating. Imagine Reporter A in New York makes a contact with some foreign person who may well be a terrorist in Pakistan (or any other country for that matter.) Of course any communication between Reporter A and the "terrorism suspect" would be covered. But wouldn't Reporter A's communications with Reporters B, C, D and Editors A and B regarding the "suspected terrorist" also be covered? Or perhaps all of Reporter A's communications to anyone, anywhere (including anonymous sources) from that time on may be covered since Reporter A might happen to talk about the "terrorism suspect" at any time in the future.
A British friend of mine would call this "about as clear as a jam jar bottom." I guess that sticks with me because it took me a while to figure out what he was talking about - but I like the description anyway.
I'm not an expert on this either, but my sense is "directed at" means they can spy on a designated target, but "concerning" means they can listen to any conversations that reference any target. That allows them to overhear lots of other information that would otherwise be protected. In other words, it permits broad fishing expeditions into conversations between any two people, neither of whom is a target of anything.
That may be required to enable data mining, which necessarily scans massive amounts of information from and about non-targeted people, searching for key words and phrases "concerning" targets, even though the data mining is not specifically "directed at" them. If true, this would be a surreptitious way of legally enabling a different (data mining) secret spy program.
I agree with farrapo. The word "concerning", particularly when interpreted by the Bush DOJ, is much more broad than "directed at".
I assume the Bush team would argue that they could target any electronic communications where there is even the slightest possibility a suspect (or suspect's activities, or an associate, or an associate's activities) would be referenced.
Perhaps we should ask our congresspeople what they intended when voting for a bill with this language. (Seriously!)
Perhaps they can also clarify the intent of some of the other dangerously broadly interpretable language in the bill.
Post a Comment
Links to this post:
Create a Link
<< Home