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View Diary: The Risen Book: Is That All There Is? Afraid Not. (90 comments)

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  •  Right, okay, FISA at § 1802(a)(4). (none)
    the Justice Department may engage in electronic surveillance to collect FII (Foreign Intelligence Information) without a court order for periods up to one year. 50 U.S.C. § 1802. There must be no "substantial likelihood" that the intercepted communications include those to which a U.S. person is a party. § 1802(a)(1)(B).

    Such electronic surveillance must be certified by the Attorney General and then noticed to the Senate and House intelligence committees. § 1802(a)(2).

    A copy of the certification must be filed with the FISC, where it remains sealed unless (a) an application for a warrant with respect to it is filed, or (b) the legality of the surveillance is challenged in another federal district court under § 1806(f). § 1802(a)(3).

    >>Common carriers must assist in the surveillance and maintain its secrecy. § 1802(a)(4).

    In emergencies, the Attorney General may authorize immediate surveillance but must "as soon as practicable, but not more than twenty-four hours" later, seek judicial review of the emergency application. § 1805(e).

    and if

    § 1802(a)(3)b) the legality of the surveillance is challenged in another federal district court under § 1806(f)

    then I have to find out about 1806(f)....
    so,
    I found a footnote in In Re: Sealed Case, to a statement that appears to be the  beginning of a new paragraph (though it's preceded by a redacted section):

    "Amici particularly focus on the differences between the two statutes concerning notice(24)"

    (The two being Title III & FISA)
    The footnote:
    24 "Amici also emphasize that Title III generally entitles a defendant to obtain the
    surveillance application and order to challenge to the legality of the surveillance, 18 U.S.C. §
    2518(9), while FISA does not normally allow a defendant to obtain the same if the Attorney General states that disclosure or an adversary hearing would harm national security, 50 U.S.C. § 1806(f). Under such circumstances, the judge conducts an in camera and ex parte review to determine whether the electronic surveillance was lawful, whether disclosure or discovery is necessary, and whether to grant a motion to suppress. Id. §§ 1806(f), (g).
    Clearly, the decision whether to allow a defendant to obtain FISA materials is made by a district judge on a case by case basis, and the issue whether such a decision protects a defendant's onstitutional rights in any given case is not before us."

    Hmmm.
    Well, I think I have it, that this statement:

    the Justice Department may engage in electronic surveillance to collect FII (Foreign Intelligence Information)  without a court order for periods up to one year. 50 U.S.C. § 1802.

    is the one qualified by this statement:
    >>Common carriers must assist in the surveillance and maintain its secrecy. § 1802(a)(4).

    Sorry it took me so long to get here, but if that's accurate..It looks like the Common carriers were not under obligation (here, anyway) to assist or maintain secrecy on anything but "electronic surveillance to collect FII (Foreign Intelligence Information"
    Doesn't take 10 lb. ovaries to stand on that, does it?
    Does this boil down to some arcane secret re-definition of the word Foreign?  That's got to be defined somewhere...

    ...gleefully connecting dots since 1966 scratch

    by arbortender on Wed Jan 04, 2006 at 07:14:42 AM PST

    [ Parent ]

    •  That assumes the common carriers... (none)
      ...were told about the precise nature, scope and targets of the surveillance.  I would imagine, for "national security" purposes, the spooks simply tell the carriers they're conducting FISA surveillance and ask for the keys to the switches.

      "When the intellectual history of this era is finally written, it will scarcely be believable." -- Noam Chomsky

      by scorponic on Wed Jan 04, 2006 at 08:10:33 AM PST

      [ Parent ]

      •  Anything beyond the International Gateway Switches (none)
        is a violation of FISA, the way I read it so far.  I don't buy that the Telcoms are oblivious to their responsibilities under FISA.  That is extremely unlikely.

        Pardon repost:

        If this statement is correct:

            "The ONLY locations where purely international traffic can be "captured" and hence "examined" by surveillance technolgies is at the international gateway switch, the switch that is directly connected to international cables or satellite links.  Calls entering and exiting those switches are clearly international, but everything on the other side of the switch is digitally combined, so that you could never distinguish the source or destination of the signal from that point forward."

        Then, does it not follow that these "international gateway switches" would be the ONLY switches where one could fulfill 1802(a)(1)(B):

            There must be no "substantial likelihood" that the intercepted communications include those to which a U.S. person is a party. §1802(a)(1)(B).

        And if it does so follow, then where is the exclusion that allows interception at any other switches than these?

        ...gleefully connecting dots since 1966 scratch

        by arbortender on Wed Jan 04, 2006 at 08:50:08 PM PST

        [ Parent ]

        •  You're missing the point. (none)
          The FISA court and its proceedings are secret -- i.e., classified.  I doubt the NSA is in the habit of showing common carriers warrants issued by the FISA court, even when they actually have them.  The common carrier probably doesn't even know if one really exists, but is simply told that the NSA is conducting "lawful surveillance."  For all the common carriers know, any surveillance the NSA does anywhere in the network is pursuant to a warrant issued by the FISA court.  The way I read FISA, NSA has no obligation to show -- and is probably prohibited from showing -- warrants to anyone outside the agency, DOJ or the White House, given the classified nature of the information in them.  The carriers have no reason to be suspicious of any particular request, I would imagine, since NSA obviously has authority under the law to surveil communications of US persons if they have a warrant to do so.

          "When the intellectual history of this era is finally written, it will scarcely be believable." -- Noam Chomsky

          by scorponic on Thu Jan 05, 2006 at 02:40:15 AM PST

          [ Parent ]

          •  I'm not missing the point (none)
            but you may be missing mine.

            I think you are saying that the common carriers trusted the NSA to uphold their own central tenets (SIGINT directives), and that on that basis, NSA could ask for and get what they wanted, regardless of whether they had a FISA warrant to do so.

            I agree that might well be true.
            Trust is great.

            Would NSA have had to make any representation at all of their specific authority to do this?  For example, some type of statement or document to the effect that "We have a warrant issued by the FISC, authorizing us to secretly secrete on Mr. Secret", or are the common carriers' doors pretty much open, to Mr. NSA, to do as thou wilt?

            and at the risk of seeming argumentative...

            The common carrier probably doesn't even know if one really exists, but is simply told that the NSA is conducting "lawful surveillance."

            Who is simply told and who simply authorizes on that basis?  No, really...who?

            For all the common carriers know, any surveillance the NSA does anywhere in the network is pursuant to a warrant issued by the FISA court.

            Given the present blatant state of affairs, can this still be true?  Was it ever lawful for the common carriers to make this assumption?

            I've got to dig out my verizon contracts and see what I agreed to, precisely, but this irks me terribly.

            ...gleefully connecting dots since 1966 scratch

            by arbortender on Fri Jan 06, 2006 at 12:43:38 AM PST

            [ Parent ]

            •  Um... (none)
              ...your Verizon contracts aren't going to mention NSA surveillance, believe me.

              You want a name of who speaks to the common carriers on the NSA's behalf?  I have no idea, but my guess is that a letter is sent from the NSA's legal counsel's office (I used to know the former chief legal counsel for the NSA, by the way, although he never discussed his work with me) requesting this or that specific cooperation and citing the statute's section requiring the carrier's cooperation.  All I know is that, whatever personal doubts I might have about the request, as an in-house lawyer receiving a letter on NSA letterhead citing a statute requiring my company's cooperation, I would never in a million years deny the request if I wanted to keep my job.

              "When the intellectual history of this era is finally written, it will scarcely be believable." -- Noam Chomsky

              by scorponic on Fri Jan 06, 2006 at 03:44:17 AM PST

              [ Parent ]

              •  There's a song in here somewhere... (none)
                never in a million years deny the request if I wanted to keep my job

                and I would prefer that everybody quit singing it.

                ...gleefully connecting dots since 1966 scratch

                by arbortender on Fri Jan 06, 2006 at 09:14:55 AM PST

                [ Parent ]

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