Wednesday, August 08, 2007

Eavesdropping sound and fury

Dahlia's mad.

This past Sunday, a heap of Democrats voted to rush through changes to the 1978 Foreign Intelligence Surveillance Act, the law that governs electronic surveillance of anyone in this country. The new law expands the authority of the attorney general to approve the monitoring of phone calls and e-mails to suspected overseas terrorists from unknowing American citizens. Make no mistake about it. The vote to update FISA rewarded the AG for years of missteps and misstatements by giving him expanded authority to enforce the president's alarming constitutional vision. Sans oversight. Sans judicial approval.

Strong stuff. But it seems highly misdirected to me. All in all I'm unpersuaded by all the sound-and-fury about the revised eavesdropping bill.

I consider myself a civil liberties fanatic, and have been harshly critical of aspects of the NSA program. I'm all for listening in on bad guys, but a warrant should be required when "U.S. persons" (U.S. citizens or resident aliens on American soil) are the target or can reasonably be expected to be overheard -- in short, the existing FISA standard. This basically boils down to a simple rule: people overseas can be monitored freely, without warrants. People located on American soil can only be monitored after obtaining a warrant (with certain exceptions designed to allow warrantless monitoring of foreign spies).

(Being a practical sort of civil libertarian, I'm actually willing to go one step beyond FISA, and not care if a U.S. person is overheard during an eavesdropping effort aimed at an overseas target. If an Al Qaeda operative in Pakistan takes a call from someone in Detroit, there's no good reason to ignore that call -- though if the government wants to target the Detroit end, it needs to get a warrant.)

So why do I not share Dahlia's outrage? Because the bill in question was a narrowly focused and badly needed update of the FISA law. The facts at issue are these: A large percentage of foreign communications pass through data switches in the United States. Technically that meant the government needed to get a warrant to listen in on those calls, even if both ends of the conversation were in foreign countries, because the tapping was taking place on American soil.

While consistent with the letter of the FISA law, this interpretation clearly violated the spirit of it, to no good purpose. Which is why hardly anybody disagrees with the fundamental point: the law needed to be updated to clarify that such purely foreign communications can be monitored without warrants.

All the huffing and puffing is over reporting requirements and the standards for review of wiretapping decisions. While legitimate issues, they hardly constitute the total Democratic capitulation -- or for that matter, hypocritical about-face -- that Dahlia describes. The bill is still narrowly focused to address a legitimate problem, and still contains specific prohibitions against domestic spying. It lacks "judicial approval" for a very simple reason: monitoring foreign communications has never required judicial approval.

I haven't read the bill in full yet, so there might well be other technical flaws in it. But the broad outline is pretty solid. This is the sort of common-sense legislation one would hope for in such an instance: one that takes civil liberties seriously, but doesn't needlessly hamper the data collection that is so useful to our security.

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