Understanding Recent Changes to FISA — A Visual Guide (Flowchart)

Update — a followup here

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I have to admit that despite the fact that I read Glenn Greenwald’s blog and have followed his numerous posts on FISA, until recently I haven’t fully understand the law or how it recently changed. I think the complexity of the issue is one of the reasons there isn’t more outrage about or opposition to the revised FISA law.

So I took the time to do some careful reading, diagramming as I went. I thought these might be useful to others.

What you’ll see below are two diagrams comparing Old and New FISA. You can click on these thumbnails to see larger images.

I Used the Following resources for these charts:

• The new FISA compromise: it’s worse than you think (by Timothy B. Lee on ars technica)
• A Guide to the New FISA Bill, Parts I, II, III (by David Kris guest blogging on Balkinization)
• FISA Fix Follow-Ups and The Key Questions About the New FISA Bill (by Marty Lederman on Balkinization)
• H.R. 6304: FISA Amendments Act of 2008
• Interview with the ACLU re: constitutional challenge to new FISA law
• See Additional Resources, below

I wanted to know what combinations of the following factors triggered a FISA Warrant requirement under the old and new laws, and which didn’t:

1. Is the Communications Domestic, Foreign-to-Foreign, or Foreign-to-U.S.?
2. What technology is involved in these communications?
3. Is the target located inside or outside the United States?
4. Is the intelligence collected inside or outside the United States

I’m sure I’ve got some of this wrong (let me know), but I think I’ve go the big picture. (I’m leaving out the soon-to-expire Protect America Act, which this bill modifies).

The focus of change is the bolded red line marked “U.S. or non-U.S. Persons Located Inside or Outside the U.S.” Currently a warrant is required in this case. Notice the changes involving the bolded blue lines and text in the following chart:

What New FISA does is create a special case involving our bold red line in the first chart. It provides a way for the executive branch to engage in warrantless (but “certified”) wiretapping of wire and cable (including email and phone) of any Foreign-to-U.S. communications collected inside the U.S. You’ll see the new set of criteria for certification in this special case. It does add new protections for U.S. Persons (citizens or greencard holders) by requiring the typical FISA warrant in all cases in which they are targeted.

On the face of it, this new loophole might not seem to be such a big problem, barring the facts of a) retroactive telecom immunity and b) the implication that Bush will never be held accountable for numerous felonies. Unfortunately, it also really is, as far as I can tell, a back door to greatly expanded wiretapping powers. Beyond the obvious fact that it requires only certification and loose judicial review rather than a warrant, it does so in the following way:

1. It Eliminates the requirement that there be probable cause that a foreign target is a suspect of any kind — terrorist, criminal, ore “foreign agent.” They merely need be your French grandmother, as long as they are outside the United States and not a U.S. person, and if the government says wiretapping them is for the purpose of collecting “foreign intelligence information” (e.g., her Pommes Frites recipe)
2. It requires the cooperation of telecoms in these efforts
3. It eliminates the need to specify a particular email address or phone number to be wiretapped
4. 1-3 together imply that certifications of wiretapping on individuals is not the issue. The point is to use telecom cooperation to target large collections of data on communications between U.S. Persons and foreigners. This implies data mining — where, for instance, because a foreign target has communications passing through a given domestic switch, any communications (domestic or international) passing through that switch are subject to collection, analysis, and storage.  There are “minimization requirements” meant to ameliorate this, but it is unclear if they really help.
5. The compromise of domestic communications in (4) is exacerbated by the fact that targets need only be “reasonably believed” to be outside the U.S.
6. It includes only minimal court oversight — who it is that is subject to warrantless wiretapping will not be know to the FISA court; the government can wiretap before it court order is sought and continue to do so even if it is denied — during a lengthy appeal process.

One thing I can’t figure out is whether the new FISA bill is, as Obama and others claim, and “improvement” on the Protect America Act (even if it is still an evisceration of the 4th amendment). Glenn Greenwald insists that it isn’t:

the surveillance program implemented by Congress yesterday does not merely authorize most of the President’s so-called “Terrorist Surveillance Program” that gave rise to this scandal in the first place, but is actually much broader in scope even than that lawless program, because there is not even any requirement in the new FISA law that the “target” of the surveillance have any connection whatsoever to Terrorism

But I can’t find where it is that the Protect America Act limits targets to terrorist suspects — I’m still looking. Volkokhov gives reasons for thinking it is an improvement — although I think that’s small consolation.

Additional Resources

• http://en.wikipedia.org/wiki/Foreign_Intelligence_…
• http://en.wikipedia.org/wiki/Protect_America_Act_o…
• http://www.cnss.org/fisa.htm
• ACLU Challenge (pdf)
• Amnesty International Challenge (pdf)
• What do I Have to Do to Get a FISA? (pdf)

Fisa Timeline

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