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The FISA Amendment – Much Ado About Nothing By: Joseph Klein
FrontPageMagazine.com | Tuesday, August 14, 2007


A controversial amendment to the Foreign Intelligence Surveillance Act of 1978 (FISA) was passed by the Democratic-controlled Congress, just before it took its month-long August recess, and signed by President Bush. The amendment is intended to update the thirty year old law to fit the realities of today’s telecommunications technologies and the type of foreign terrorist enemies whom we are fighting.

Notably, this amendment expires in six months, giving Congress the opportunity to revisit its provisions and work on long-term legislation to modernize FISA after it returns from vacation next month. While Congress is on vacation, however, the terrorists are continuing to pursue their murderous plans 24x7. Terror does not take a holiday. The amendment provides temporary breathing room for the National Security Agency (NSA) to keep up with the terrorists 24x7 and connect the dots in their unfolding plans before they are launched against us.

In fact, the FISA amendment needs little, if any, changes before it becomes permanent. It provides a good model for balancing the government’s need for immediate access to intelligence against individuals’ reasonable expectations of privacy for their international communications.

The most immediate need for the amendment was to clarify that communications between individuals located entirely abroad, which happen to be routed through U.S.-based switches for technological reasons, are outside the scope of FISA’s warrant requirements. This change was relatively non-controversial. However, at the same time, the drafters of the amendment sought to clarify other portions of FISA that were hampering the gathering of foreign intelligence. The most significant of these clarifications – and the one that has caused such consternation among the ACLU, the New York Times and other anti-Bush partisans - is a more explicit authorization for the government to monitor certain international communications without a warrant for an extended period of time, even if one of the participants is an American citizen located in the United States, as long as the monitoring is undertaken for foreign intelligence purposes and is "directed at a person reasonably believed to be located outside of the United States."

The amendment provides that the Director of National Intelligence and the Attorney General may authorize the acquisition of foreign intelligence information in such situations for up to a year without a warrant as long as they have determined, among other things, that “there are reasonable procedures in place for determining that the acquisition of foreign intelligence information under this section concerns persons reasonably believed to be located ouside the United States, and such procedures will be subject to review of the [FISA] Court”. They must certify their determination in writing, under oath, supported by an affidavit of appropriate officials in the national security field.

The FISA amendment contains various procedural safeguards, including transmittal of the certification to the special FISA court “as soon as practicable” and judicial oversight by the FISA court of the government’s determination that its procedures are reasonably designed to ensure that its acquisitions of information are directed at persons reasonably believed to be located outside of the United States. Detailed reports of the program to the Senate and House intelligence committees are also required.

Since the government will be dependent on telephone carriers and internet service providers for much of the information it will be sifting, there is an additional safeguard that provides an opportunity for immediate judicial review. Any carrier that is directed by the Director of National Intelligence and the Attorney General to provide the government with information, facilities or other assistance to accomplish any warrantless search may immediately challenge the legality of the directive by filing a petition with the FISA court. This will have the effect of accelerating the judicial review of specific searches.

Despite all of these safeguards against abusive behavior by the executive branch, the Left’s distrust of the Bush Administration far outweighs its concern about preventing another 9/11 type attack on our homeland. Even the six month experiment approved by Congress is too much for them. The ACLU, for example, calls the temporary amendment the “Police America Act" and claims that it “allows for massive, untargeted collection of international communications without court order or meaningful oversight by either Congress or the courts.” They say that they are “challenging the Bush administration's illegal spying, which violates the Fourth Amendment and other constitutional protections guaranteed to every American.”

This obtuse view of reality reflects a fundamental misunderstanding of today’s global telecommunications technologies, the type of enemy we are facing, and why the changes to FISA are needed to update a law that was written before the advent of global terrorist networks and the widespread use of internet technologies. It would also impose an absolutist interpretation of the scope of the Fourth Amendment’s protections against unreasonable searches and seizures that goes well beyond the type of balancing approach that the courts have used to weigh the government’s legitimate need for flexibility in gathering information against our individual privacy rights.

The precise language of the Fourth Amendment is as follows: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Supreme Court has recognized that the principal objective of the Fourth Amendment is the protection of privacy against unreasonable governmental intrusion.[1] But whose privacy is entitled to protection and under what circumstances is governmental intrusion “unreasonable”?

The Supreme Court has ruled that the “people” who are covered by the Fourth Amendment’s protection are those persons “who are part of a national community or who have otherwise developed sufficient connection with [the United States] to be considered part of that community.''[2] So non-resident aliens, whether suspected terrorists or not, have no protection under the Fourth Amendment against any search or seizure of their person or their property that occurs outside of the United States.

Even most civil libertarians do not disagree with that interpretation. However, once anyone residing in the United States is even marginally affected, the Left-wingers go ballistic. They insist upon a judicial warrant in virtually all cases where the government intercepts telephone calls and email exchanges between an American, who is comunicating from within the United States, and someone reasonably suspected of having terrorist ties who is communicating from outside of the United States. They are incorrectly applying conventional criminal law thinking to an entirely different situation involving national security.

For searches conducted in the course of ordinary criminal law enforcement, proof of reasonableness would generally require a judicial warrant. But the Supreme Court has ruled that on some occasions warrants are not required where the purpose of the search is justified by special needs beyond the normal need for law enforcement that outweigh the affected person’s reasonable expectations of privacy.[3]

We are subject to thorough warrantless searches of our person and our belongings every time we board an airplane – whether on a domestic or international flight. No particularized suspicion is required to conduct these searches. Despite the inconvenience and the exposure of personal belongings to perfect strangers, most Americans have come to accept this incidental intrusion on their privacy as a necessary fact of life in a world where planes are used by terrorists as weapons of mass murder.

A federal court of appeals held that the government is also permitted to search our computers for contraband or other prohibited items at the airport or wherever we are entering or leaving the country. No warrant – not even any showing of reasonable suspicion - is necessary for such searches of the informational content on the computers. The court said that “[p]articularly in today’s world, national security interests may require uncovering terrorist communications, which are inherently ‘expressive.’”[4]

Instead of persons physically crossing our borders, including Americans returning from trips abroad, the FISA amendment deals with communications originating or terminating here that cross our international borders. Under the procedures established in the amended FISA, there will be far more protections for persons in the United States whose communications being monitored are incidental to NSA’s targets of interest abroad than persons physically crossing our border have with respect to warrantless searches of the information residing on their computers. In other words, the FISA amendment requires a higher standard of proof to justify a warrantless search of the end-to-end communications that cross into or out of the United States than the courts have already permitted of persons physically entering this country.

Communications technology is a significant means by which global terrorist networks plan and put in motion their destructive strategies. However, at the same time, our technological prowess provides us with the means to stay ahead of them. Our technological edge includes data mining - in this case the ability to collect enormous amounts of data from international communications, to spot connections among telephone numbers and internet addresses, key words and other fragments of seemingly unrelated information via computers and to use the results to zero in on suspected terrorists. In other words, the patterns of who communicates with whom, coupled with matching associations of key words, can provide the path for more particularized searches of the communications content of specifically identified individuals, at which time it would be more practical to then obtain a warrant for more intrusive searches of American residents’ communications.

The numbers or addresses assigned to a person for use in communicating on the public network are not that person’s private information. They are assigned for the purpose of enabling the third-party equipment of the carrier to permit the communication to take place. Thus, where NSA is simply gathering intelligence about patterns of communications, there is no reasonable expectation of privacy in the fact that there was a communication involving a person located in the United States or where the communication originated and terminated.

Nearly thirty years ago, the Supreme Court held that the government can use devices to record telephone numbers being dialed without a warrant.[5] The Federal Ninth Circuit Court of Appeals (perhaps the most liberal of the nation’s federal courts of appeal) just recently upheld the validity of computer surveillance that enabled the government to learn the to/from addresses of the defendant’s e mail messages, the Internet protocol addresses of the websites that the defendant visited and the total volume of information transmitted to or from his account.[6]

Things get a little more complicated when NSA monitors the content of communications of persons in the United States without a warrant in order to glean key words and other fragments of information and run them through data mining programs. It is more reasonable to expect privacy treatment for the content of one’s underlying messages. However, extracting bits and pieces of content and matching them to other bits and pieces serve the legitimate government purpose of better understanding how suspected terrorists communicate. The government’s access to these disparate bits and pieces of information does not involve the government’s prying into the full discrete package of content of any particular message. Rather, it enables the government’s analysis of the correlations among portions of voluminous and seemingly unrelated messages that involve suspected terrorists or their facilitators communicating from abroad. Again, the FISA amendment requires a much higher degree of justification for a warrantless search than customs officials require to search people at random entering our country – including the information contained on their computers.

Finally, in those instances where NSA determines that it is necessary to intercept or obtain from the carriers the full contents of a particular communication involving a foreign suspected terrorist or co-conspirator for review, persons in this country at the other end of the communication will suffer some loss of privacy – but only for the communications that fit within that narrow category. Aside from still being illegal without a warrant, NSA has neither the resources nor interest in reading all our e-mails or listening in on all of our telephone conversations. The claims made by the ACLU and other Bush haters that they are being spied upon represent nothing more than bogus speculation, as a federal appeals court concluded recently in dismissing the ACLU’s challenge to the NSA electronic surveillance program.[7]

In today’s interconnected world, when we use public network technology to communicate, we necessarily forfeit a modicum of privacy. Every time we choose to visit a website, we are willingly providing businesses and other interested parties, including the government, with information that enables their tracking of our interests and other valuable personal data. The majority of Americans understand that to prevent the network technology we are using for legitimate purposes from being exploited by foreign terrorists to more efficiently plan and carry out another devastating attack on our homeland, we must allow the intelligence experts to do their job even if it means exposing some of our personal information to them in the process. What counts is how they end up using this information. Have any American residents been imprisoned for crimes learned about as a direct result of NSA’s warrantless electronic surveillance? Has the volume of international communications with Americans in the United States declined precipitously since knowledge of the surveillance program became public because people are now afraid of being spied upon? Have American residents lost their jobs, their savings, their right to vote, their right to write or speak as they wish, or their reputations as a result of any information learned about them during NSA’s warrantless electronic surveillance? In other words, where exactly is the crushing harm to our liberties that the ACLU and their fellow left-wingers assert but cannot prove? There is none. The only people whose ‘liberties’ may be truly curtailed are the suspected terrorists and their enablers if they are caught or foiled in time from carrying out their deadly schemes.

The ACLU and their fellow Left-wingers seek to paralyze our government’s ability to head off another terrorist attack on our homeland. In their state of paranoia, they see our own government as the greatest threat to Americans’ freedom. The threat that the Leftists obsess about is largely a figment of their own imaginations. On the other hand, the terrorist threat that the President is concerned about is real and ever-present. Three thousand lives were actually lost on 9/11. A plot to blow up several trans-Atlantic flights from London to the United States that would have killed many more people was actually foiled as a result of good intelligence. The terrorist leaders have announced their intentions to attack America again – with nuclear, chemical or biological weapons if possible.

The FISA amendment is a small price to pay for protection against these real threats to our freedoms and should be made permanent. Anything less will hand the terrorists a carte blanche to attack us again.

Notes:

[1] Warden v. Hayden, 387 U.S. 294, 304 (1967).

[2] United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).

[3] Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990) (sobriety checkpoint program is consistent with the Fourth Amendment); United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (utilized a balancing test in upholding checkpoints for detecting illegal aliens).

[4] United States v. Ickes, 393 F.3d 501 (4th Cir. 2005)

[5] Smith v. Maryland, 442 U.S. 735 (1979)

[6] United States v. Forrester, __ F. 3d __, Slip. Op. 8069 (9th Cir. July 6, 2007)

[7] ACLU v. NSA, __F. 3d__, 2007 WL 1952370 (6th Cir., July 6, 2007)



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