Wednesday, March 07, 2007

Is the Terrorist Surveillance Program exempt from FISA?

Bit by bit, I'm slowly learning to appreciate the law, and I'm learning how to read it. At times, I actually browse SSRN for pleasure...

For those of you who don't know what the Terrorist Surveillance Program is, go read about it elsewhere. It's old news now.

I read a few parts of the FISA statute this evening, and a couple things jumped out at me. Lets look at 50 U.S.C. § 1801 (f).

“Electronic surveillance” means—

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;


(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States;

From my reading of these 3 parts of section (f), it would seem like:

If the US governement/NSA performs a wiretap in international waters (i.e. splices the undersea fiber-optic cable or copies the satellite signal in space), does so on a wholesale basis (i.e. captures every single communication on that wire, and isn't attempting to target a particular citizen), and does it only for communications where one party is outside the USA, that they would be exempt from FISA.

I'm still rather new to the law here, but this seems like a fairly obvious loophole.

Am I missing something here?

3 comments:

A former (but brief) roommate said...

Both federal AND state agencies are good at this. For example, colleges and universities in Virginia must compile records of all people applying for admission and transmit those records to the Virginia State Police on a regular basis.

You might say "but FERPA doesn't allow this!" However, here is how FERPA defines who is a student:

(6) For the purposes of this section, the term "student" includes any person with
respect to whom an educational agency or institution maintains education records
or personally identifiable information, but does not include a person who has not
been in attendance at such agency or institution.
(20 U.S.C. § 1232g (a)(6).

Pretty sneaky, eh?

Colin said...

Hi I think you mean "e.g." instead of "i.e.".

"i.e." means "that is"

"e.g." means "for example"

Cheers,
Colin.

Anonymous said...

Part of the program that is receiving little attention is the computer surveillance program. This is embedded/backdoored into windows XP and is disguised as part of the Instant Messenging subsystem. It operates on udp ports 1025-1031...and EVERYONE is targetted. If you have a linux or *BSD firewall it is interesting to correlate firewall hits to the above ports to the various governments that use this backdoor and also to the list of NSA IP's listed in this link.
http://cryptome.org/nsa-ip-info.htm