How A Random Lawsuit About Telco Policy Probably Resulted In Broad, Secret Law Enabling NSA To Spy On You

from the well-that's-fun dept

We've written many times about the FISA Amendments Act (FAA), of which there is a secret interpretation that certainly appears to allow the NSA to spy on all sorts of email communications without a warrant -- something that is not at all obvious upfront (and, in fact, which many in Congress apparently do not know about). While Senators Wyden and Udall have been working hard to try to force the government to reveal either the secret interpretation or how many Americans have been spied on, the rest of Congress appears to not want to know, while rubber stamping the renewals to let the effort continue.

There have been some questions about how all of this came about, and just why law enforcement officials keep insisting the FAA is so vital. Julian Sanchez may have worked out some key details, and provides a very compelling explanation. Seven years ago, the Supreme Court ruled in the Brand X case (the same day the Grokster ruling came out), basically saying that cable networks did not qualify for "common carrier" status, because they were "information services" rather than telco services. The direct end result was that broadband providers no longer had to share lines with service providers. But, as Sanchez notes, there may have been an unrelated indirect impact: by removing the common carrier designation, the NSA may have lost its legal authority to "tap" live communications on such networks without a warrant. Sanchez explains the nitty gritty:

“If FISA’s reference to ‘common carrier’ were interpreted in accord with the Communications Act,” Kris and Wilson explain, explicitly citing the Brand X decision, “information (such as e-mail) being carried on a cable owned and offered by a cable modem service provider would not be a ‘wire communication’ under FISA, and acquisition of such information would not be ‘electronic surveillance’ under” the definition that applies to traditional phone calls.

Sanchez provides a lot more detail, which is worth reading in full, because it's quite complex. However, it suggests that the Bush administration's focus on "deregulating" cable may have undercut the NSA's "spy on everyone" program through a simple definition change. The FAA, then, was put in place (partly) to once again enable the NSA to get access to a bunch of live communications legally, whereas it's quite possible that the FISA court had found, in light of Brand X, that the efforts had been against the law. Now, you can argue that the change due to the Brand X decision is no big deal, because it was just clarifying some rules, and dealing with antiquated language in the statute. But, again, since so much of this happened in secret, if Sanchez's story is accurate, it more or less allowed the government to write very broad rules, such as those now allowing such broad surveillance.

So the FISA Amendments Act allows the government to target foreigners and capture conversations with Americans — with no warrant required, so long as they aren’t actually trying to wiretap the American via a technical loophole.

But if the government’s problem is an inability to reliably determine the location of parties to a communication, it’s not clear why we should be confident that interception under this broad new authority can reliably avoid acquiring many purely domestic communications. Even if it can, blanket authority to acquire the international communications of Americans — with no requirement that the foreign side of the conversation be suspected of any connection to terrorism or espionage‹seems like an incredibly broad way of addressing the issue.

Perhaps Kris and Wilson are correct that a narrower solution to the problem would have been unworkable. On the other hand, perhaps legislators would have tried a bit harder to craft a viable narrow solution if they, and the general public, had clearly understood exactly what the problem was.

Sanchez goes on to point out that if this story is accurate, and if the FISA court had basically upended the feds' spying program becuase of some definitional issues, a more reasonable and transparent approach would simply be to work together with lawmakers and civil liberties experts to actually focus in on the specific problem. Instead, it appears they may have used this loophole to massively expand spying capabilities, with no public oversight at all.

Filed Under: common carrier, deregulation, fisa, nsa, privacy, spying, telco policy
Companies: brand x