Listening Under FISA, Part I: The Technology

In principle it seems the right – and the duty – of the government to try to find terrorists abroad before they act, before they come here, and/or before they instigate a terrorist act here. Surveillance is crucial.

In principle it seems the right – and the duty – of the government to try to find terrorists abroad before they act, before they come here, and/or before they instigate a terrorist act here. Surveillance is crucial.

Under the 1978 FISA (Foreign Intelligence Surveillance Act) law, U.S. intelligence services could listen without a warrant to foreign-to-foreign communications relayed – as most calls then were – wirelessly. Technology advances however, and today 90 percent of global communications pass through fiber optic cable. The National Security Agency (NSA) has been monitoring foreign-to-foreign communications by tapping into the U.S.-based cables as transmissions pass through our territory on their way back abroad.

NSA considered the routing to be incidental to the fact that the communications were between people located abroad.

Two court rulings in the spring stopped the process – the first challenged the collection of data from wires even when the target was a terrorist source; the second ruled that warrants from the FISA court were required for any wire-based communication surveillance. NSA immediately began asking for warrants – thousands of them – but the court could not keep up. “We needed thousands of warrants, but the most we could do was hundreds,” said one NSA official. According to The Washington Post, Director of National Intelligence Mike McConnell told the Senate Intelligence Committee, “We are actually missing a significant portion of what we should be getting.”

NSA appealed to the court, which said it was only enforcing the law and that a legislative fix was required to restore the permissibility to intercept foreign-to-foreign communications without a warrant.

In April, the administration sent a bill to Congress to close the technological gap in surveillance policy. The Democratic leadership planned to put off the debate until after the summer, but in August, McConnell came before a closed group of senators from both parties with what was considered important information about terrorist activity and a precipitous decline in American ability to keep pace with surveillance. Members of both parties agreed that immediate – if temporary – action was required.

The House and then the Senate passed a revised version of the law as they were headed out the door, including an interesting proviso that would “allow the interception and recording of electronic communications involving, at least in part, people ‘reasonably believed to be outside the United States’ without a court’s order or oversight, according to The Post. This takes into account the fact that cell phones can be used across continents.

So, you may think, great. When push and shove came together, the Democrats and Republicans listened to the experts, and fashioned legislation that gave the administration the powers it sought to protect the country. Not great, because politics were involved every step of the way and the real battle is set up for September. Read on.