What the New Wiretap Law Means

An NSA agent listens into a cell phone call between parties in Great Britain and Iran. This is what he hears…

All materials and personnel are in place. We await further orders.

Immediately, the party in Great Britain receives a return call…

Begin operations in 2 hours. All primary targets are to be destroyed.

Now, the NSA monitor detects a third transmission, originating with the party in Great Britain, to a party in Providence, Rhode Island. The message is…

…but wait, should the NSA keep listening at this point? A number of Democrats in Congress and ACLU-types say not necessarily, arguing that when foreign calls reach the United States, any government agency involved in surveillance has to hang up, unless they have previously obtained a warrant for the party on the American side -- even if they didn’t know the identity of the party on the American side before the call was made.

This is the central issue involved in the changes to the wiretapping law signed by the President on Monday. The new law makes clear that phone calls and other electronic communications that involve one party beyond the borders of the United States are to be treated according to the rules governing foreign intelligence gathering. 181 Democrats in the House and 28 in the Senate voted against this. Mark Steyn has best described the strangeness of the minority position on this issue…

If the U.S. government intercepts a call from Islamabad to London about a plot to blow up Big Ben, it can alert the Brits. But, if the U.S. government intercepts a call from Islamabad to New York about a plot to blow up the Chrysler Building, that's entirely unconstitutional and all record of it should be erased.

All four members of Rhode Island’s Congressional delegation; Senators Jack Reed and Sheldon Whitehouse, and Congressmen Patrick Kennedy and James Langevin, voted to require the government to cease surveillance in certain situations where phone or other electronic communication trails originating in foreign countries unexpectedly lead to contacts in the United States.

2. The new statutes not only adapt intelligence law for cases where one party is outside of the United States, but as an OpinionJournal editorial from July 27 pointed out, they also clarify the handling of certain cases where both ends of a call are outside of the United States…

If an al Qaeda operative in Quetta calls a fellow jihadi in Peshawar, that call may well travel through a U.S. network. This ought to be a big U.S. advantage in our "asymmetrical" conflict with terrorists. But it also means that, for the purposes of FISA, a foreign call that is routed through U.S. networks becomes a domestic call. So thanks to the obligation to abide by an outdated FISA statute, U.S. intelligence is now struggling even to tap the communications of foreign-based terrorists.

3. The Boston Globe states that the new law allows the executive branch to conduct "oversight-free surveillance", but that’s not true, even at the most basic level. According to the text of the law…

`(h)(1)(A) A person receiving a directive issued pursuant to subsection (e) may challenge the legality of that directive by filing a petition with the pool established under section 103(e)(1). (Note: The “person” referred to above would basically be the employee of a telecom company. The “pool” would be the Foreign Intelligence Surveillance Act (FISA) Court, the special court designated by Congress to hear domestic surveillance cases.)

`(B) The presiding judge designated pursuant to section 103(b) shall assign a petition filed under subparagraph (A) to one of the judges serving in the pool established by section 103(e)(1). Not later than 48 hours after the assignment of such petition, the assigned judge shall conduct an initial review of the directive. If the assigned judge determines that the petition is frivolous, the assigned judge shall immediately deny the petition and affirm the directive or any part of the directive that is the subject of the petition. If the assigned judge determines the petition is not frivolous, the assigned judge shall, within 72 hours, consider the petition in accordance with the procedures established under section 103(e)(2) and provide a written statement for the record of the reasons for any determination under this subsection.