FISA Compromise?

by publius

Via Steve Benen and TPM, I see that the administration has signaled a willingness to compromise on FISA. For this, we can thank House Democrats and the election of 2006. Although I’ve been frustrated at times with the Democratic majority, it’s important to give credit when credit’s due. If we’re going to critique them for lacking a spine, we should praise them when they cross over into the Vertebrata subphylum as well. Obviously, this battle ain’t over, but it’s looking more favorable than it did a few months ago.

But what really interested me about these posts was Kiel’s report that the Democrats are floating more limited versions of immunity:

Some Dems are floating “a pared-back version of immunity,” such as limiting immunity to certain aspects of the program or capping possible damages.

Frankly, I think limited immunity isn’t a bad idea, if it’s negotiated correctly. In particular, it’s important to keep an eye on the larger strategic picture. The Dems’ motto should be “money for information,” and any negotiated compromise should be consistent with that larger goal.

In other words, I really don’t care about making telecom companies pay billions in damages. What I do care about is learning more about the program. The purpose of the litigation – for me – is to ensure expansive discovery so that we can learn about government lawbreaking and hold the proper parties accountable – either legally or, more likely, politically.

Believe me, I have no love for Big Telecom. But I’d rather see those billions going into things like network infrastructure (yes, Verizon sucks, but it is laying a lot of fiber right now). Besides, the government may have already agreed to indemnify them anyway (see Kevin Drum for more on this). If damages are the goal, it’s likely either a pointless or wasteful exercise.

An objection to my argument, though, is that punishing companies ensures that they won’t cooperate with lawbreaking in the future. That’s true, but it loses sight of the larger picture by focusing on tactics rather than strategy. We don’t just want to end telecom surveillance. We want to end the mindset that led us to telecom surveillance – i.e., blatant disregard for the law and civil liberties. There are a million ways to break the law that don’t require commandeering private companies. The more effective strategy to protect our civil liberties is to instill fear and respect in the minds of government officials. We need to go to the root of the problem, expose it, and take appropriate action.

The problem with going to the mat on telecom damages, however, is that it arguably undermines the larger strategic goal to gain information. If, by contrast, Dems give a bit on the damages front, it increases the ability to gain information, which is the real prize. For instance, if the telecom companies are no longer on the hook for billions (e.g., by substituting the government as the defendant), then they’ll have much less interest in keeping “hot” documents privileged. Sure, the administration will fight disclosure during discovery, but the administration may look very different in a few months. For now, the key is to keep the litigation going so that discovery can continue. The worst case scenario is that wholesale immunity gets passed today (which, once passed, would require 60 Senate votes to undo). In that instance, all discovery shuts down and we learn nothing for decades.

The same arguments apply even if the telecom companies are already off the hook pursuant to some sort of indemnification agreement. Even here, the “money for information” compromise still helps. The administration’s argument, remember, has been based primarily on the supposed harms that telecom companies will endure. Punishing them, we’re told, means they won’t cooperate anymore. This is all largely bull, but it’s still the administration’s public argument of choice. If the Dems counter by publicly agreeing to remove damages in exchange for guaranteed access to information, it cuts the legs out from the administration’s argument.

For these reasons, I think the Specter-Whitehouse “substitution” bill is not a bad idea at all. For those unfamiliar, the bill would allow plaintiffs to substitute the government as the defendant, thus dismissing the telecom defendants. The key, though, is that the bill ensures that plaintiffs retain full discovery rights – i.e., they can serve discovery requests on the dismissed telecom companies (see p.9 of the bill – pdf). It secures information while reducing the incentives of the telecom companies to fight disclosure (and believe me, removing that well-trained, battle-tested army of lobbyists would help the cause and grow the subphylum so to speak).

But even if you have problems with the Specter bill, and even if you want the telecom companies to pay something, I think the larger point stands. Information is the key. I fear that a critical mass of House Dems will eventually back some sort of compromise. Assuming they do, the Dems would be smart to strategically scale back exposure to damages while ensuring the right to full discovery remains intact.

In short, negotiate -- but negotiate intelligently with an eye to strategy.

Comments

[Jon]

Spoke like a prosecutor - give Ma Bell a pass if she rolls over on Uncle. I like it.

Nice to see that Pelosi knows how to crack the whip. I know what the limitations are like in the Senate, but it's no excuse for throwing up hands and conceding without a fight, and I'd love to see Harry sent back to Searchlight and replaced with somebody with a little more Ric Flair in their game.

(come on, you're from my part of the world, you'll get that...)

[dmbeaster]

Does the Specter Bill abrogate the State's Secrets defense? I skimmed it and did not see anything on the point, but it may be in there. If not, substituting the government as a defendant does no good as it can refuse discovery based on that doctrine.

As for "compromise" from this White House? It won't happen.

[Sean M. Brooks]

The trouble with Publius' comments is that he said not a word about the REASON why the governtment sometimes HAS to use phones and internet connections to obtain data. That is, keeping track of possible terrorist movemeents. In other words, tracking both terrorist "ops" and their money flows. The purpose of the FISA act was to enable the relevant gov't agencies to do in a manner least likely to do harm to civil rights.

Sincerely, Sean M. Brooks

[Hartmut]

A legal question: Could Bush just pardon the telcoms or is his power limited to individual persons?

[MNPundit]

You know, this argument made a lot of sense to me until I remembered.

The most important thing about the Majority is Subpoena power.

Uh huh.

How's that going for you Nancy?

Thought so.

[CS]

The telecoms always had protection because the US government ordered the work done. The only person to sue would be the US government. Allowing people to sue the US government is Specter playing games with the US government.

The telecoms would not cooperate with the US government unless they were ordered. They always asked for the order. Now, if they have a choice, the answer is to not cooperate and take the order to court. The company would go out of business for bad management unless it fought the order.

[ThatLeftTurnInABQ]

This strikes me as being similar to a conventional situation where prosecutors are offering a coconspirator immunity and/or reduced charges in return for witness testimony, with the unusual twist that negotiating the details of their plea bargain is greatly complicated by the problem that one of the negotiators on the govt. side was a party to the conspiracy under investigation and in fact is really the principle target of the investigation, so the negotiations are guaranteed to be carried out in bad faith.

It seems to me that this approach is likely to fall apart at some point, so what is plan B if this doesn't work?

If the net result is that this is really a political rather than a legal case, is there not some way that this matter can be better handled via a congressional investigation (with public redaction of the details which would legitimately be covered under the state secrets doctrine) and hearings (both public and in-camera), rather than via the courts, so long as the testimony given is still under oath and subject to perjury charges if given falsely?

If Harry Truman could investigate war-profiteering without endangering national security, why is it so hard to investigate this matter without exposing information too sensitive to be released?

Does not Congress already have sufficient leverage over the telecomm's (e.g., by threatening to hold hostage legislation of interest to them) to compel their testimony under grant of immunity even without the cooperation of the DOJ (to enforce subpoenas), if only the House would summon the political will to use it?

And if that political will is missing, isn't this going to end badly in the courts as well?

[Redhand]

I see that the administration has signaled a willingness to compromise on FISA.

As for "compromise" from this White House? It won't happen.

That's pretty much the way I see it too. The Bush Administration doesn't know the meaning of the word.

[Ginger Yellow]

Does the substitution bill raise constitutional questions? I've no idea myself, but it would be a disaster to "compromise" on immunity, let the telephone companies off the hook, and then have the Supremes tell us we can't even prosecute the government.

[OCSteve]

We don’t just want to end telecom surveillance…

Personally I just want to see an end to illegal telecom surveillance, certainly not all telecom surveillance…

[Ugh]

OT - looks like they finally released the long-secret John Yoo memo.

[Slartibartfast]

The purpose of the FISA act was to enable the relevant gov't agencies to do in a manner least likely to do harm to civil rights.

The problem is that FISA was written in an age where the entire context of electronic surveillance was fundamentally different. Discussion of wiretapping in the context of current communication is nearly as obsolete as would be limiting the discussion of warfare to spears and slings. It's not that wiretapping isn't ever an appropriate descriptor, it's that it's only an appropriate descriptor in the context of surveillance emplaced at the sending or receiving end of a call.

At points in between, you cannot listen in on the conversations of interest without recording all of them, because you don't have time to identify which of the information packets are the ones you want without opening them all. I don't know that an ex post facto warrant for every piece of information passing through the node being surveilled has ever been attempted. Certainly the list of names, or the list of source/destination addresses, would be huge.

That's my understanding of the nature of the problem, anyway. If anyone knows differently, please chime in.

[felix culpa]

an end to illegal telecom surveillance, certainly not all telecom surveillance…

Just as well, hey? Surveillance after all is the new black, and it can only metastisise. How many street cameras in NYC and London?

Having trouble following CS and LeftTurn, but probably because the coffee hasn’t kicked in. If the flaws of reasoning are real I’m sure they’ll be challenged and clarified, so I’ll hold fire since I’ve only got wet matches at the moment.
Nonetheless, I’m with Publius. The real crooks and bullies in this case are in Intelligence and Justice and they are the ones who should be brought to trial. Granted that will take a while to happen, but the framework must be clear and solid. The next Department of Justice will have its hands full, and the sharper their tools the easier it will be to cut through the mountain of crap.
Parenthetically the trends in surveillance would be an excellent topic for some future post.
Looking forward to this thread.

[low-tech cyclist]

If the purpose of suing the telecoms is discovery - to gain info about government surveillance - but the real culprits were/are within the government, then what will we get out of suing the telecoms that we wouldn't get from a Democrat in the White House?

[hairshirthedonist]

...hold the proper parties accountable – either legally or, more likely, politically.

The problem with this is that too many people simply don't care. They have the mindset that, since they haven't done anything wrong, and the government is only after terrorists, whatever surveillance the government undertook is okay. Too many people trust the government with powers that the American system was designed to check. They don't get it.

[Mis En Place]

The problem is that FISA was written in an age where the entire context of electronic surveillance was fundamentally different.

This is something of a red herring. FISA anticipates the collection of unintentionally acquired information. The problem is the ultimate disposition of this info.

The spirit of FISA seems to indicate unintentionally acquired information is to be destroyed. Unfortunately, it is apparent the administration seems to interpret the spirit of FISA rather narrowly.

[Incertus (Brian)]

In short, negotiate -- but negotiate intelligently with an eye to strategy.

I'd like a flying pony too, but I have no expectation of getting one in the future, near or otherwise, no matter what advances we've made in genetic engineering.

Sorry, I'm usually less cynical about this stuff after my third cup of coffee.

[gary Farber]

"If the purpose of suing the telecoms is discovery - to gain info about government surveillance - but the real culprits were/are within the government, then what will we get out of suing the telecoms that we wouldn't get from a Democrat in the White House?"

Testimony under oath, taken under the supervision of an, one would like to hope, independent federal judge with a lifetime appointment, entered into the legal record, however much is made publically available, or kept under security seal, under the prodding of an adversarial court proceeding.

I don't care who's the Executive, we can't have enough attempts to get at the truth, and it's not as if a court proceeding would prevent an executive investigation and public accounting, as well. It's not an either/or choice: both are greatly desirable, if not necessities for the restoration of constitutional and limited government and all that freedom and justice stuff we like to flatter ourselves that we have in some way, somewheres, sometimes.

Since you asked.

OCSteve: "Personally I just want to see an end to illegal telecom surveillance, certainly not all telecom surveillance…"

Me, too. That's Hilzoy's position, as well, last I looked, fwiw.

"I'd like a flying pony too, but I have no expectation of getting one in the future, near or otherwise, no matter what advances we've made in genetic engineering."

Better to do it in low gravity, such as, say, Luna's. Otherwise the wing-span and lung capacity necessary for flight would be prohibitive in terms of heart, lung, and muscle power, as well as grossly distorting the looks of the horses from what one would expect from legend.

Otherwise, it's surely just a matter of the fine details. Heck, Heinlein had it in 1947.

[Tsam]

I agree with OCSteve:
Personally I just want to see an end to illegal telecom surveillance, certainly not all telecom surveillance…

In particular, the key principle I see is that the surveillance system prevent its use without the equivalent of a warrant: the user identifying the target and purpose to an independent authority. Without the fear of discovery, abuse for political purposes is not a risk but a certainty. (And discovery of such abuse is almost impossible.)

I'm willing to place this gate at the use of a database, not its collection, for data such as e-mail traffic analysis.

It should be possible to frame the debate in mostly non-partisan terms. These are powers that will be available to the executive for the forseeable future. Every legislator (and voter) knows an opponent whom they fear having this power and who could be in the White House, like Rudi or Hillary. If the debate is framed as why any legislator wants to give their personal boogeyman this dangerous power, effective pressure could be applied.

Why is this not the current dynamic of the debate in Congress?

[hairshirthedonist]

...as well as grossly distorting the looks of the horses from what one would expect from legend.

But what about ponies?

(hsh 1, gary 0)

[honestpartisan]

Good point, publius, but I've always wondered, how much in damages could plaintiffs really collect from the Telecoms anyway? Even if you assume away governmental indemnification?

Harmat, I don't think that the president has the power to relieve a party from civil liability, just criminal liability.

[Turbulence]

honestpartisan,

The executive does have the power to contractually promise to assume any damages associated with civil liability though. Given the courts' reluctance to interfere in ongoing national security operations, I think that in practice, that's pretty close to relieving a party from civil liability.

[Slartibartfast]

The spirit of FISA seems to indicate unintentionally acquired information is to be destroyed.

Please explain what you mean by that, and also why you think that unintentionally acquired information isn't being destroyed.

Assuming there's something behind that assertion, though, I don't think FISA anticipated that you'd be recording all conversations, even between people who aren't to be surveilled, to access the one you wanted.

[trilobite]

By the time we get useful info and a case going against the Executive Branch, we will probably have a Democrat in the WH - at which point the Departmental leadership all changes and we are suing the wrong people. Anyway, any money we could recover comes out of our taxes.

Is there a way to sue the individuals as individuals? Or bring criminal charges of some kind? We want to scare future bureaucrats. But my murky recollection of Harlow v. Fitzgerald is that we can't reach the individuals in a civiil action as long as they were acting within the scope of duties relating to national security. Any experts on the blog?

I don't see the argument against suing Verizon et al. Sure, they could use the money for good, productive purposes. But so could the government, so that's a wash. And a credible threat of a big ol' fine may deter the next collaborator.

[dmbeaster]

The legal threat to the telecoms is very important, even though many of the points above are valid that this is ultimately a political fight involving the government and not at its core a civil dispute with telecoms.

In this area, the telecoms are essential government partners to any wrongdoing, and it is very valuable to have them fear liability for complicity in wrongdoing. Existing law protects them if they receive a certain form of order to comply (and also if the order appears to be legally valid even if ultimately determined to be invalid -- the federal judge in the ongoing litigation in California determined after hearing telecom arguments that they knew they were cooperating in lawbreaking -- that there was no good faith basis for belief that the conduct was lawful).

From what little is known about the current mess, they cooperated despite the absence of any order justifying the surveillance demand and with full knowledge that it was illegal. That is exactly why you want them fearful -- otherwise their default position will always be to cooperate with wrongdoing. It appears that the telecoms determined that it was in their corporate interest to join in lawbreaking, and they will do it again if there is no penalty.

I have read the Drum and other comments about the indemnity wrinkle in this argument, which overlooks a essential legal point. An indemnity agreement to protect oneself from complicity in illegal acts is not enforceable. Any good telecom lawyer would know this, and could not assure telecom management that complicity in intentional lawbreaking can be protected by an indemnity from the government.

[Sebastian]

"The legal threat to the telecoms is very important, even though many of the points above are valid that this is ultimately a political fight involving the government and not at its core a civil dispute with telecoms."

I'm torn on this. In a regulatory state (and the telcoms are as regulated as just about anybody) when the government tells you to do something you are really in a bind. The more regulated you are, the worse the bind gets. If Bush had told the NRA to turn over its membership lists, they would have told him to screw himself. But they are independent and not very regulated. If he had told the ACLU to give him all their member communications secretly, they wouldn't have done it. But again, they are independent and lightly regulated.

When the government tells your company that something is necessary for national security, that you can't tell anyone about it, and you know that they could smoosh your company out of existance without even trying hard, I really feel for the decision-maker of the company.

No administration should ever put a company in that situation. Bush should have followed the rules and gone through FISA. But when he didn't, I can completely understand the bind the telcoms found themselves in. I'm not at all sure civil liability is a great solution to that.

[Jesurgislac]

When the government tells your company that something is necessary for national security, that you can't tell anyone about it, and you know that they could smoosh your company out of existance without even trying hard, I really feel for the decision-maker of the company.

I believe some of the telecoms refused the government's illegal orders. Should the telecoms that refused to break the law be treated the same as the telecoms who cooperated with the Bush administration's criminal activity? That does the honest companies a great disservice.

[Sebastian]

That's why I said I was torn.

[Gary Farber]

"Please explain what you mean by that, and also why you think that unintentionally acquired information isn't being destroyed."

Possibly you could please explain why you think that unintentionally acquired information is being destroyed, given Hepting, which is not exactly">http://amygdalagf.blogspot.com/2006/04/hepting-vs.html">exactly news.

Then we could run though several hundred pages worth of preliminary discussion on the history of U.S. illegal domestic surveillance, which was the reason FISA was written, or we could simply stick to the endless number of documented cases in which the Bush Adminstration has, of course, no record whatever of said destruction of records.

For instance, National Security Letters.

Why not just trust">http://www.washingtonpost.com/wp-dyn/content/article/2007/03/22/AR2007032201882.html">trust the government, after all? What could go wrong, after all?

After all, the Bush record is so impeccable, why not just assume that they're obeying the law, even though the entire point of all these lawsuits, and revelations, is that they don't?

Well, let's see if the spam-filter lets this go through before I drop any more of the zillions of possible links in.

[Gary Farber]

Breaking this into pieces to please the spam-filter:

"Please explain what you mean by that, and also why you think that unintentionally acquired information isn't being destroyed."

Possibly you could please explain why you think that unintentionally acquired information is being destroyed, given Hepting, which is not exactly">http://amygdalagf.blogspot.com/2006/04/hepting-vs.html">exactly news.

[Gary Farber]

Breaking this into pieces to please the spam-filter:

"Please explain what you mean by that, and also why you think that unintentionally acquired information isn't being destroyed."

Possibly you could please explain why you think that unintentionally acquired information is being destroyed, given Hepting [....]

[Gary Farber]

Breaking this into pieces to please the spam-filter:

"Please explain what you mean by that, and also why you think that unintentionally acquired information isn't being destroyed."

Possibly you could please explain why you think that unintentionally acquired information is being destroyed, given Hepting [....]

[Gary Farber]

Well, Slart, I wrote the beginnings of a response to you, but since ObWi is again refusing to let me post with even a single link, you'll have to rescue it from the spam filter, if you want to read it.

[Turbulence]

I don't think FISA anticipated that you'd be recording all conversations, even between people who aren't to be surveilled, to access the one you wanted.

FISA has seen significant changes over the 30 years since its original passage. Regardless of what you think FISA's original authors thought, it has been revised extensively by legislators that had a much better understanding of modern telecommunications.

Slarti, while I find your speculating interesting, it seems somewhat unlikely. Would you mind linking to an unbiased expert confirming that this has proven to be a problem in practice? I imagine that if FISA really does suffer from such a horrendous flaw, you are not going to be the very first person who has thought of it, which means you should have no difficulty finding legal scholars or think tanks that have already written about this problem.

[Slartibartfast]

Would you mind linking to an unbiased expert confirming that this has proven to be a problem in practice?

Of course not. To do that, I'd have to get someone who knows anything at all about how it's done to talk, and I haven't seen that happen yet.

I imagine that if FISA really does suffer from such a horrendous flaw, you are not going to be the very first person who has thought of it,

I'm not. I do know a couple of guys who actually work for one or another of the major telecoms, and they say that if you're monitoring anywhere other than source or destination, then you've got to open up the packets to see where they're going and where they've come from, and you can't do that in realtime. You're not listening in on a conversation, you're seining a sea of many thousands of different pieces of conversations for the bits of the ones you're interested in, which you're going to reassemble at some point. Telecommunications isn't about connections, anymore, it's about packet routing.

Think about it. On a single fiber, the data is flying by at a gigabit per second. In order to pick one packet source or destination out of the huge volume on just one fiber, you've got to read enough of each packet to recover the source and destination info, then decide whether to store that packet or not. In realtime, because there isn't any other kind.

Or, possibly, you buffer up all of the data and sort through it all later.

But that's datamining. Packet-sniffing has different problems, I'm thinking, that also weren't foreseen when FISA was formulated. Orin Kerr thought that packet-sniffing was what the NSA was doing, but I'm not sure if we know one way or the other.

I think, though, that the details of what we're doing are no longer sensitive, precisely because they've been discussed at length in public. It's way past time to shed some light on this.

[Gary Farber]

Will typepad let me post ever again? Will Slart every check his email? Stay tuned, action fans!

[Gary Farber]

WTF?

[Gary Farber]

Why won't this post?

Uncork the [forbidden word that starts with s, uses p, and ends in m, apparently, jeebus frigging $%&[email protected]], trap, please, maybe, Slart?

[Gary Farber]

"I believe some of the telecoms refused the government's illegal orders."

I suggest googling: nacchio qwest fisa

[Turbulence]

To do that, I'd have to get someone who knows anything at all about how it's done to talk, and I haven't seen that happen yet.

Let me see if I've got this straight: are you saying that there is a major defect in FISA that impedes surveillance vital for national security AND that the Bush I, Clinton, and Bush II administrations have never lobbied congress to fix it? Even though the Clinton and Bush II administrations have publicly lobbied for much smaller flaws in FISA to be fixed?

Think about it. On a single fiber, the data is flying by at a gigabit per second. In order to pick one packet source or destination out of the huge volume on just one fiber, you've got to read enough of each packet to recover the source and destination info, then decide whether to store that packet or not.

Yeah. I have thought about it actually. As have many other people who have worked at Bell Labs. Or taken a class on computer networks. Or taken a class on legal issues associated with computer networks. And in all my readings and discussion and experiments (some involving building systems that sift and sieve conversations from packet networks at line speed), I don't remember there being any serious legal impediment associated with using computers to do partial stream reassembly in order to facilitate filtering. Especially since in many cases, that reassembly and filtering is being done by the provider's computer system and not the governments'; after all, in most legal surveillance, the government tells the network operator that they want conversations that fit certain criteria.

Perhaps I just don't remember properly, but this really did not seem to be a major issue.

[Turbulence]

Telecommunications isn't about connections, anymore, it's about packet routing.

This is...not correct. Generally speaking, connections exist in packet networks. In IP networks, we have TCP sockets, aka connections. In ATM networks, we have virtual circuits. Etc, etc. One might have said thirty years ago that connections don't exist anymore, it's all about electrons flowing through wires, but that wouldn't have been any less obfuscatory.

Or, possibly, you buffer up all of the data and sort through it all later.

But that's datamining. Packet-sniffing has different problems, I'm thinking, that also weren't foreseen when FISA was formulated.

Storing ephemeral data in order to perform targeted filtering is not datamining. And, in any event, the nature of packet filtering networks was quite well understood when FISA received its most recent revisions.

[Hartmut]

I repeat my question: Could Bush just pardon the telcoms, if Congress does not grant them immunity or is the president's authority limited to individual persons?
From Bush's point of view it would of course be preferable, if he would not have to get his own hands dirty on that, even if he had the legal power to do it.
To paraphrase that bit from Dave: "If I kill this bill, I'll look like a pig but I don't like to look like a pig, so you will kill that bill for me"
So could that "compromise" just be a maneuvre to keep the ball rolling until election time?

[Slartibartfast]

Sorry about that, Gary; I went ahead and released the whole lot of it.

First, I'm not asserting that anything is destroyed or not destroyed, I merely asked why Mis en Place thought he knew one way or another. If I asked badly, consider this a clarification.

Second, I'm familiar with the whole business surrounding Mark Klein. Klein, by his own admission, doesn't know what's being done with the information. I've said that I think it's important that we do know. Or, possibly, that a proxy we trust knows.

"or we could simply stick to the endless number of documented cases in which the Bush Adminstration has, of course, no record whatever of said destruction of records"

Or, as far as your link describes, records of any records at all, destroyed or not.

I haven't read much about National Security Letters; attempting to rectify.

"After all, the Bush record is so impeccable"

Once you start addressing things I _haven't_ said, all kinds conversational possibilities open up that I sadly don't have time or patience for. I'll revisit this discussion later, possibly tonight.

[Slartibartfast]

"are you saying that there is a major defect in FISA that impedes surveillance vital for national security AND that the Bush I, Clinton, and Bush II administrations have never lobbied congress to fix it?"

Nope, I'm not. I'm saying that there are likely shortcomings in FISA, possibly major, and I haven't said anything at all to what degree they've been effective in impeding surveillance.

It's nice that you've had classes in this stuff, Turbulence. Maybe you can comment in detail on how this stuff works, and on MIT's understanding of the legal aspects, so I can compare your comment in detail to what other people who are currently working at AT&T are saying.

[Turbulence]

I'm saying that there are likely shortcomings in FISA, possibly major, and I haven't said anything at all to what degree they've been effective in impeding surveillance.

I guess I'm confused then. I suppose there might be very serious shortcomings in FISA, but if those shortcomings don't impede surveillance, then I don't understand why anyone should care. For that matter, I don't understand how a shortcoming that never impeded vital surveillance could be considered "serious".

Maybe you can comment in detail on how this stuff works, and on MIT's understanding of the legal aspects, so I can compare your comment in detail to what other people who are currently working at AT&T are saying.

I'd be happy to comment in detail. What specific question would you like me to address?

[Gary Farber]

Thanks,Slart. I don't mean to trouble you further, but please do feel free, if you like, to delete all my attempted comments subsequent to the one that is claimed to have been posted at 12:45 PM, and my 02:18 PM, so people don't have to waste time reading all that uninteresting redundancy.

I was just notified, incidentally, a couple of minutes ago -- OT alert! -- that I'm a duly elected Alternate Delegate for Obama both to the Colorado State Democratic Convention, and my Congressional District Assembly, as well, purely as a write-in. Woo, along with the hoo.

Bow before the awesomeness of my political power! Bow nooooooooowwwwwww!!!!!

[Gary Farber]

"Once you start addressing things I _haven't_ said, all kinds conversational possibilities open up that I sadly don't have time or patience for."

Yeah, I was being badly frustrated with my endless inability to post anything at all, and the sarcasm got a bit freeflying; my apologies for any shrapnel that I didn't really mean to send in your direction, and which you didn't deserve.

I'm also in the midst of considerable busyness in making arrangements for moving, which is, it turns out, going to be a move of considerably greater distance than I had anticipated when I got my eviction notice last month, he said mysteriously. (Further public specifics to come in a couple or so weeks, and it's a Good Thing.)

Generally speaking, my commenting and internet time is apt to be more limited than usual for the next 3 months or so, at least.

[Slartibartfast]

"my apologies for any shrapnel that I didn't really mean to send in your direction, and which you didn't deserve"

Thanks for that, Gary. And regarding the Eviction, and subsequent Good Thing possibilities, I wish the best possible result for you. If I had a lamp genie, I'd wish that you had one, too.

More detailed responses to other points, questions, etc are going to have to wait a bit.

[Sean M. Brooks]

I would like to thank "Ugh" for commenting on my remarks. Problem is, I don't really have much more to say if we are going to discuss the changes in technology since FISA was first enacted. I'm totally incompetetnt to handle a strictly technological discussion. That much said, I DO any revisions in FISA which makes it impossibly difficult to carry out legitimate electronic/Internet intelligence operations will not be worth the trouble. Any such revision of FISA will give the enemies of the US a free hand--allowing them to use our own laws to harme us. With possibly incalculable costs and consequences. And, another thought occurs to me which I don't think anyone has mentioned. I don't think we should have laws forbiddinge intelligence officers from conducting Internet related surveillance of actual or possible terrorists who are are OUTSIDE the US. Sincerely, Sean M. Brooks

[Jesurgislac]

Sebastian: That's why I said I was torn.

On another thread, you claimed you were all for the rule of law. If you're sincere about that, I can't see why on earth you would be "torn" about companies that obey governments ordering them to break the law. The telecom companies knew they were being told to commit criminal actions. Some refused, upholding the rule of law. Some obeyed, helping the Bush administration destroy the rule of law. How on earth can you be "torn" over the companies who obeyed, if for you the rule of law is the most important thing?

[Gary Farber]

"That much said, I DO any revisions in FISA which makes it impossibly difficult to carry out legitimate electronic/Internet intelligence operations will not be worth the trouble."

You're saying that any revision in FISA that is in complete contradiction to the purpose of FISA -- to enable legal surveillance -- shouldn't be made? If so, I'm wondering who you're arguing with, since if anyone ever, in the years since ObWi started, has suggested FISA be done away with, I missed that.

"And, another thought occurs to me which I don't think anyone has mentioned. I don't think we should have laws forbiddinge intelligence officers from conducting Internet related surveillance of actual or possible terrorists who are are OUTSIDE the US. "

And who here has ever suggesting any such thing? What are you responding to?

Because, in a similar vein, I think we shouldn't do away with laws against murder. I don't think anyone has mentioned this in this thread, so it apparently needs stating.

Also, obey the law of gravity. And I'd prefer not to be blown up. I'm pretty sure I've forgotten to mention that, too.

And I'm against doing away with laws that allow us to investigate, try, and find people accused of crimes to be either innocent or guilty. I don't recall anyone mentioning this, and the thought occurs to me.

But, as it happens, the list of things that more or less everyone here has always agreed with, and thought so incredibly obvious that it would never in a million years occur to most to think that they need to be pointed out, is a tad long.

But, hey, it's good to be clear. It's good that we all agree.

On a separate note, I thought I'd posted a comment yesterday on how it's utterly impossible for a single word like "thanks" to "come off" as anything other than "thanks," save for someone projecting their own imagination onto it, or suffering from hallucinations, but I clearly didn't manage to post that comment, which is perhaps just as well. (And now I go and ruin that; oh, well.)

The gist was that I don't understand how confusion can exist on such a question, but I run into this puzzle all the time.

Words without additional connotation can't possibly have additional connotation save in the unjustified imagination of a reader who confuses the meaning of words with their own emotional state, it seems to me, but I'm clearly a minority opinion on such matters.

I note it because it drives me absolutely crazy when people confuse their own imagination with actual words with no possible emotional connotation, such as the case of someone automatically appending "thanks" to every single comment they have ever made.

I just don't get it.

(Note: previous words mean "I don't get it," and not any other words anyone else might imagine should be substituted. I don't speak for anyone else, but I try to write what I mean, not what other people imagine I really mean, and I object strongly when people substitute their hallucinations for the words I actually wrote. It seems kinda unnecessary, to put it mildly.)

[OCSteve]

I just don't get it.

So what you’re really saying is…. ;)

[Gary Farber]

"So what you’re really saying is…. ;)"

I drink your milkshake.

No, that's not right. More coffee, first, before I drink your milkshake.

Actually, what I'm really saying is that relatively few people actually regularly read carefully enough to fully understand what the words do and don't mean.

Instead, they substitute their imagination, and respond according to the voices in their head, rather than to the words they are ostensibly replying to.

If one hasn't observed this at an earlier age, all it takes is reading some slush to be hammered over the head with this fact, incidentally.

But the routes to that observation are infinite.

I hang out on ObWi because the percentage of people here who can read well is exceptionally high.

More or less.

[Mis En Place]

First, I'm not asserting that anything is destroyed or not destroyed, I merely asked why Mis en Place thought he knew one way or another.

Someone is mindreading. As I recall, I wrote the spirit of FISA indicates unintentionally acquired info should be destroyed. I then cast aspertions on this administration's interpretations of FISA.

Having said this, Gary Farber's well-referenced comment and the recent relevations of the John Yoo memo cannot inspire confidence in this admin's observance of the law.

[russell]

A couple of comments, which will completely exhaust the tiny store of things I can usefully say on this topic.

One of the issues here is the kind of communication that is protected. "Outside of the envelope" stuff -- information about who is talking to who, but not the content of the conversation -- receives far weaker protection under the law than the content itself. The legal bar to monitoring that stuff is very, very low.

That distinction is pretty well settled, and predates FISA by quite a few years.

In the context of communications over a network, 'outside the envelope' stuff includes some things that are used every day to do packet filtering and selection in real time. IP addresses, protocol tagging, etc. That is precisely what routers and similar technologies exist to do.

It also includes some stuff that requires digging a little deeper into the packets themselves -- email to and from addresses, etc. That is likely to be more time consuming.

But even given that, it doesn't seem to me like we would need to capture and store every packet transmitted through telecoms trunk lines in order to fish out the packets that are of interest.

In fact, doing it at the level of, for instance, an AT&T seems like a really dumb place to do it. The ISP of the person you're surveilling makes more sense. Unless I'm missing something.

From my limited understanding of the actual situation, it seems like some kind of real datamining is going on. Not just storing communications so that we can look for the packets that belong to persons of interest in a non-real-time context, but doing so in order to discover previously unknown interesting patterns of communication, where a precise meaning for "interesting" and "pattern" has not been made clear.

In other words, not just monitoring, but fishing.

Regarding FISA specifically, I can't think of anyone who objects to government surveillance of communications between people we suspect of illegal activity. The issue is whether the government is required to demonstrate, by requesting a warrant, that there is a legitimate need for the surveillance.

FISA warrants are, by any reasonable measure, virtually always granted. If immediate action is needed, surveillance can begin for (IIRC) three days while the warrant application is prepared and considered. If a three day period isn't enough for our modern times, my guess is that any reasonable request for extending that window would receive generally friendly consideration if made in good faith.

I don't think any kind of immunity should be offered until we understand exactly what the hell actually is going on.

Thanks -

[Turbulence]

In fact, doing it at the level of, for instance, an AT&T seems like a really dumb place to do it. The ISP of the person you're surveilling makes more sense. Unless I'm missing something.

You're correct. I suspect the issue that Slarti is wrestling with is that are cases where tapping at the origin or destination is simply infeasible. For example, if the origin and destination points are outside the US. Alternatively, if one the origin is outside the US and the destination is a small ISP inside the US that authorities believe may have been subverted by criminals.

That last guess is not so shocking. Much of the spamming, bot nets, and targeted infiltration attacks that we see on the internet every day are performed by criminal syndicates. They're tightly connected to meatspace criminal organizations like the various mafia. Since they tend to offer their services to the highest bidder, I can easily imagine them coopting an entire ISP or maybe just the few employees of one ISP that are responsible for dealing with the government (coopting in this case means the meatspace group would exploit the usual gambling debts, extortion, blackmail, etc). The online syndicate could then offer terrorist organizations a secure communications endpoint in the US: they could offer them the ability to be informed of relevant government wiretaps ahead of time.

If I was an online criminal syndicate, this is the kind of service I'd at least consider offering. This sort of privacy is worth a lot to many institutions and they'd pay through the nose for it. In many smaller ISPs, it can be difficult to properly restrict information regarding ongoing taps.

So that gives you some scenarios where you would need to filter at a tier 1 ISP, fairly close to the internet core, where data is moving very, very fast.

Other than that one detail, I think everything you said was spot on.

[russell]

Turbulence -

Many thanks for the reply.

All of what you say makes sense.

I hadn't thought of it in this context, but I'm aware of offshore ISPs who market themselves specifically to folks who do not want to be subject to US surveillance. That might be appealing for criminal purposes, or just for general "don't tread on me" cussedness, but I doubt the ISPs do all that much vetting of why folks are interested in their services.

Thanks again for your insights.