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March 17, 2008

Cover Story | Surveillance

Who’s Listening In on You?

By Wilton D. Alston

On February 12, the U.S. Senate

approved, by a 68-29 vote,
espionage legislation that would
expand the government’s authority
to intercept international phone calls
and e-mails and to block lawsuits
against U.S. telecommunications
companies that aided in past spying
efforts. The legislation would
permanently expand the Foreign
Intelligence Surveillance Act of 1978
(FISA). FISA, which has been
amended several times, established
a special court and specific
procedures for gathering both
physical and electronic foreign
intelligence inside the United States.
An Electronic Police State?
To keep Americans safe, says Mike
McConnell, the Director of National Intelligence and erstwhile National Security
Agency spook who has spent much of his recent time promoting this
expansion, government agents must have the ability to intercept electronic
information, including that crossing the Internet, throughout the United States.
(There are those who believe the NSA has been doing that for years, but that is
a debate for another day.) The rationale is the fact that much of the world’s
communication crosses channels in the United States at some point. The
government figures the situation presents a great opportunity to listen in on
communications to and from supposed terrorists who may actually be outside
the United States.
The obvious problem behind such legislation is that allowing such listening in,
particularly without the establishment of probable cause, will likely lead to
abuse. In a bit of cruel irony, this legislation is named “The Protect America
Act.” (No, it’s not you; the Twilight Zone music did just start playing.)
A summary of selected provisions follows, with some explanatory commentary.
The Protect America Act empowers the Attorney General or Director of National
Intelligence (DNI) to authorize, for up to one year, the acquisition of
communications concerning “persons reasonably believed to be outside the
United States” — even if the foreign persons are communicating with citizens
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in the United States — without a warrant, if the Attorney General and DNI
determine that each of five criteria has been met:
• There are reasonable procedures in place for determining that the
communications are from persons reasonably believed to be located
outside the United States;
• The surveillance does not involve solely domestic communications;
• The surveillance involves obtaining the communications data from
or with the assistance of a communications service provider who has
access to communications;
• A significant purpose of the acquisition is to obtain foreign
intelligence information; and
• The dissemination of information gathered on Americans is
“minimized.”
This determination by the Attorney General and DNI must be certified in
writing, under oath, and supported by appropriate affidavits. If immediate
action by the government is required and time does not permit the preparation
of a certification, the Attorney General or DNI can direct the acquisition orally,
with a certification to follow within 72 hours. The certification is then filed with
the FISA Court.
Essentially, based upon an oath (a promise) that what they wish to do is
necessary, the DNI or Attorney General can authorize surveillance upon anyone
they wish, if that surveillance is supposedly directed at someone outside the
United States. That surveillance can continue for a year, and the DNI can
compel communication companies — the telecoms, for instance — to obey his
commands. Perkins Coie’s Internet Case Digest explains:
Once the certification is filed with the FISA Court, the Attorney
General or DNI can direct a provider to undertake or assist in the
undertaking of the acquisition.
If a provider fails to comply with a directive issued by the
Attorney General or DNI, the Attorney General may seek an order
from the FISA Court compelling compliance with the directive.
Failure to obey an order of the FISA Court may be punished as a
contempt of court.
In other words, the Protect America Act allows the DNI to make the telecoms
accomplices in spying on the U.S. public, no matter what the companies may or
may not think about the request, and severely punish them if they do not
comply.
Not only does the act compel the action of the telecoms, it also protects them
from prosecution should their actions be later shown to have been improper. It
further protects the telecoms from actions they took before this act becomes
law! Essentially, the act compels an action and simultaneously removes all
responsibility for that action in one fell swoop.
The White House, operating under the premise that the original FISA legislation
is now out of date, claims that FISA needs changes lest the war on terror be
lost. This is patently false. In fact, the original FISA legislation arguably went
too far in providing opportunity for abuse, as will be detailed. Despite that, the
recent legislation is being offered as yet another means to protect the U.S.
public. Nothing could be further from the truth.
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Returning to the Beginning

All of this should make one wonder what the original FISA legislation, to which
the Protect America Act is but an amendment, was supposed to allow and why.
Basically one can break the whole bill down into a few components, which are:
• A need to gather intelligence arises, generally, from the Federal
Bureau of Investigation (FBI) making the request.
• The target of this intelligence is “a foreign agent” or someone
working for a foreign government, or someone who can reasonably be
assumed to be such.
• A formal request is made to a secret court for a warrant to conduct
this investigation on this foreign agent, although it is possible, in some
circumstances, to conduct months of investigation before the warrant is
requested or granted.
• The court grants (or denies) the warrant and the investigation —
including wire tapping, searches, etc. — is conducted.
FISA was meant to allow needed surveillance while at the same time
safeguarding citizens’ Fourth Amendment protections against unreasonable
searches and seizures. (FISA was enacted after the Nixon Watergate scandal
revealed that Nixon was using presidential authority to surveil his personal
enemies.) That really is about all there is to it. For the record, since the
existence of the court, only two of the thousands of warrants requested have
been denied.
Of course, the definition of “need to gather intelligence” and who is actually a
“foreign agent” are somewhat malleable. Under the original FISA, a foreign
agent could be anyone believed to be working for a foreign government.
Furthermore, the issue of oversight is somewhat specious, since, as will be
mentioned later, the results of the investigation and the conduct of the
investigators are not normally reviewed after the fact. Still, with the existing
FISA legislation there were (supposedly) limits to what and who could be
subject to surveillance.
The original law allowed for a court — the Foreign Intelligence Surveillance
Court (FISC) — to decide if the proper information was being sought under the
proper circumstances. Still, several rather obvious challenges make even this
initial scenario suspect. If the court meets in secret, exactly how can this
“properness” be judged? For example, if the foxes meet weekly to determine if
the hens should be allowed certain rights and privileges, to whom can the hens
complain? If three guys meet in secret to determine if beating up a fourth guy
meets the requirements of law, who can decide if they were wrong? In other
words, the premise of the original legislation was flawed. The premise for the
new, expanded legislation is even more so.
Ends Not Justifying Means
More troubling than even the details of such legislation is the lengths to which
those who wish to justify the need for newer and more expansive power will go
to do so. From a Newsweek article entitled “Spy Master Admits Error,” we find:
Also on September 10, [2007] DNI Mike McConnell testified
before the Senate Committee on Homeland Security and
Governmental Affairs that the Protect America Act had helped
foil a major terror plot in Germany. U.S. intelligence-community
officials questioned the accuracy of McConnell’s testimony and
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urged his office to correct it, which he did in a statement issued

September 12, 2007. Critics cited the incident as an example of
the Bush administration’s exaggerated claims and contradictory
statements about surveillance activities. Counterterrorism
officials familiar with the background of McConnell’s testimony
said they did not believe he made inaccurate statements
intentionally as part of any strategy by the administration to
persuade Congress to make the new eavesdropping law
permanent. Those officials said they believed McConnell gave
the wrong answer because he was overwhelmed with information
and merely mixed up his facts.
So, the spy in charge drastically overstates the usefulness of increasing
surveillance, under oath, and we’re supposed to believe “he was overwhelmed
with information and merely mixed up his facts” or some such? If he is
overwhelmed by the facts just trying to justify the legislation, one has to
wonder what will happen after he obtains even more sweeping power with the
legislation. Surely this is an outtake from Saturday Night Live, and not the
context of serious discussion. But wait, there’s more. From C-Net News Blog,
we find:
Bush also called for retroactive immunity for telecommunications
companies who had cooperated with government surveillance
efforts, saying, “It’s particularly important for Congress to
provide meaningful liability protection to those companies now
facing multibillion-dollar lawsuits only because they are believed
to have assisted in efforts to defend our nation, following the
9/11 attacks.”
Even if one is generally open to letting bygones be bygones, it smacks as
disingenuous to suggest that the telecom providers can be forgiven for
previously breaking the law even before this more expansive, more “forgiving”
set of amendments to FISA was dreamed up. What is being suggested here is
something of a universal mulligan for those who ignored not only the
Constitution but also their responsibilities to their customers’ privacy — a new
law that lowers the bar for infringements to an old law! Nice racket.
When the people who break the law represent the government that ostensibly
made the law, or were acting in collusion with the government to break the
law, one has to be even less inclined to be forgiving. Make no mistake,
however; this is not about forgiveness. This is about hiding the bodies. We get
a solid clue from another Newsweek story entitled “We Hear What You’re
Saying” with:
The telecommunications immunity provision [of the Protect
America Act] has proved especially controversial because it
would effectively shut down more than 40 private lawsuits
alleging that firms including AT&T and Verizon violated the
privacy of American customers by secretly turning information
about their phone calls and e-mails over to U.S. intelligence
agencies without the authorization of the special Foreign
Intelligence Surveillance Court. If the lawsuits were allowed to go
forward, they could become vehicles for a full public examination
of still secret orders and legal rulings that the president and
Justice Department used to justify warrantless eavesdropping on
American citizens after September 11.
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Evidently “full public examination” is exactly what is needed here. Certainly

there are those who would suggest that one has to break a few eggs — eggs
being a euphemism for privacy rights — to assure the safety of the U.S. public,
but this justification, aside from presenting a false choice, only takes into
account a small part of why such surveillance is bad.
You Can’t Get There From Here
The fact of the matter is this: the unaccountable surveillance is unlikely to
thwart terrorist activity because there is simply too great a volume of
information. Breaking eggs when one still won’t get an omelet is just not that
smart. There is no scenario under which one is very likely to catch terrorists by
examining the routine communications of the U.S. public, or the
communications that could be to or from someone in the United States, unless
it occurs via dumb luck. The reason: too little signal and too much noise.
It is like finding a tan piece of hay in a gigantic stack of yellow hay — a stack of
hay that gets renewed each day. Norwegian professor Floyd Rudmin, using a
mathematical construct to determine probability called Bayes’ Theorem,
concluded:
The probability that people are terrorists given that NSA’s
system of surveillance identifies them as terrorists is only
p=0.2308, which is far from one and well below flipping a coin.
NSA’s domestic monitoring of everyone’s email and phone calls
is useless for finding terrorists.
Simply put, monitoring every phone call, every e-mail message, and every
instant message flowing through America will not result in a reasonable
reduction of the risk of terrorist attacks. Unless there are a lot more terrorists in
the United States than even the most pessimistic estimates would suggest,
increased monitoring will result in little else but loss of privacy and increased
expense. (It would also result in a veritable cornucopia of business for security
firms and technology providers, all paid for with taxpayer money.) Not to
mention that, assuming the terrorists aren’t complete morons, they can simply
and easily bypass the electronic surveillance altogether by resorting to old-
fashioned spy gadgets like packages containing microdots.
Finding a terrorist with either the old rules or the expanded rules is less
effective than just randomly stopping cars and flipping a coin. Given that level
of discrimination, it would seem all the more important to have a feedback
mechanism in place to correct for errors. Certainly if searches and/or warrants
are obtained improperly or lead to abuse, those infringed upon and those who
might later be infringed upon deserve to know about it. The original structure
of the FISA, and the recurring theme in every attempt to widen its reach, is in
direct contradiction to any such feedback mechanism. The Electronic Privacy
Information Center clarifies the existing law:
The records and files of the cases are sealed and may not be
revealed even to persons whose prosecutions are based on
evidence obtained under FISA warrants (except to a limited
degree set by district judges’ rulings on motions to suppress).
There is no provision for the return of executed warrants to the
FISC, for certification that the surveillance was conducted
according to the warrant and its “minimization” requirements, or
for inventory of items taken pursuant to a FISA warrant.
[Emphasis added.]
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Having a secret court make a secret ruling about probable cause is one thing,
but having no mechanism to determine if the ensuing action — action taken by
those who obtained the warrant — was appropriate makes the whole process
rather, well, needless. If one asks for authorization to do one thing, but does
another, and is never asked to verify if what he did was done pursuant to the
previous instructions, he might as well not have asked in the first place.
Presidential aspirant Ron Paul has noticed the shaky ground upon which this
legislation is based. He stated on the floor of Congress:
We must remember that the original Foreign Intelligence
Surveillance Act was passed in 1978 as a result of the U.S.
Senate investigations into the federal government’s illegal
spying on American citizens. Its purpose was to prevent the
abuse of power from occurring in the future by establishing
guidelines and prescribing oversight to the process. It was
designed to protect citizens, not the government. The effect
seems to have been opposite of what was intended. These
recent attempts to “upgrade” FISA do not appear to be designed
to enhance protection of our civil liberties, but to make it easier
for the government to spy on us!
Different Question, Same Answer
Indeed. The original FISA legislation was passed to prevent abuse, not allow for
more of it. One can only wonder if FISA curtailed any substantive abuse. It is
doubtful. Examining the justifications for allowing even more sweeping power,
one can’t help but come to this conclusion: the Protect America Act is intended
to reduce the ability of the original FISA legislation to preclude abuse.
Apparently even the minor limits imposed by the original FISA still put a cramp
in the style of abusers everywhere! Talk about irony.
In his little-known (and currently unpublished) masterpiece, “The Theory of
Anarcho-Capitalism and its Libertarian Opponents,” the late Per Christian
Malloch says:
Constitutions, bills of rights, statements of principle, party
platforms, and all other Guarantees can never be more than self-
imposed restrictions which cease to affect the people who run a
government the instant they cease to believe in their rightness,
or as soon as it is clear that the people will not punish the
government for ignoring them.
It seems clear that any protections supposedly provided by the FISA (or the
FISC) long ago ceased to restrict anyone or protect the U.S. public. And that is
assuming — rather naively — that they ever restricted any behavior.
Despite that irony, Bush and his minions seek to push the abuse envelope even
further. DNI McConnell and his compatriots seem determined to give the
phrase, “Can you hear me now?” a whole new meaning. If they succeed, no
one should feel any safer, because they won’t be.
To send an editable online letter to your U.S. representative opposing the
House version of legislation expanding FISA, go to
http://capwiz.com/jbs/issues/?style=D and click on “Help House Defy Bush on
Secret Surveillance Law!” under “Legislative Alerts and Updates.”
Wilton D. Alston, a libertarian activist and writer, is a principal research
scientist working in the field of transportation safety