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July 30, 2010

Comments

Wasn't warrantless wiretapping illegal? How is this different?

It's the new law!

Presumably, subject to SCOTUS challenges.

I'm glad you wrote about this. I had gathered a couple of links to write about it myself.

Get a warrant. It isn't that hard if you have any legitimate reason to suspect someone.

Just get a warrant.

And, if there is still going to be some kind of 'exigent circumstances' exception, impose a strict liability standard for compensatory damages including a mandatory award of attorney's fees for bad calls by the feds.

A couple of points here, based on my "IANAL" understanding of the issues.

First, I believe the "gag order" aspect of NSLs has been ruled to be unconstitutional and has been removed.

Second, I don't think the context for this stuff is criminal investigations. IIUC, it's intelligence gathering and terror investigations. So, probable cause is not necessary in order to obtain a warrant, the FBI (or whoever) merely has to assert that the proposed target of the surveillance and/or the communications they want to capture are relevant to an investigation.

Third, the stuff they want to extend NSLs to are email and web request headers, which are generally held to be analogous to pen register type records of phone calls. In other words, the number you called and when you called, but not the content of the conversation. As such, fourth amendment guarantees arguably (and likely) do not apply.

We already have FISA as a regime for authorizing surveillance for foreign intelligence gathering and terror investigations. The FISA court is *extremely* deferential to requests for a warrant. And FISA already supports an 'exigent circumstances' exception, where US citizens and legal residents can have their communications monitored for three days without a warrant, and non-US persons for *a year*.

Last but not least, NSLs are known to have been flagrantly and widely abused. FBI agents have, literally, written "NSLs" on Post-It notes to demand materials from phone companies and ISPs, and in many cases the materials they have requested were materials they had no authority, under any regime, to ask for.

NSLs suck.

What Seb and others have said here - just get a freaking warrant. For the purposes at hand here, the bar for a warrant is extraordinarily low, and the FISA courts almost literally never deny warrant requests.

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