The Latest, Not Greatest, Proposed Revisions to Electronic Surveillance Law, Part 1

Here's a quick primer on the latest version of electronic surveillance law moving through Congress. Warning: there's some heavy (and not very well written) legalese in the portions of the new law excerpted below.

At the moment, foreign electronic surveillance is being conducted under a reasonably clear rule written into a temporary law (it expires in February) stating that no court-system involvement is required when one party (citizen or non-citizen) is believed to be outside of the United States…

Sec. 105A: Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.

Democrats want to limit the "exception" to cases where both parties are non-"United States persons" located outside of the United States...

Sec. 105A (a): Foreign to Foreign Communications -- Notwithstanding any other provision of this Act, a court order is not required for the acquisition of the contents of any communication between persons that are not United States persons and are not located within the United States for the purpose of collecting foreign intelligence information, without respect to whether the communication passes through the United States or the surveillance device is located within the United States.

...and also make explicit that intelligence agencies need to obtain court orders before conducting electronic surveillance in all cases not covered by section (a)...

Sec. 105A (b): Communications of Non-United States Persons Outside of the United States -- Notwithstanding any other provision of this Act other than subsection (a), electronic surveillance that is directed at the acquisition of the communications of a person that is reasonably believed to be located outside the United States and not a United States person for the purpose of collecting foreign intelligence information (as defined in paragraph (1) or (2)(A) of section 101(e)) by targeting that person shall be conducted pursuant to --

(1) an order approved in accordance with section 105 or 105B; or

(2) an emergency authorization in accordance with section 105 or 105C.

Reconciling section (a) with section (b) essentially requires court approval for any continuing foreign intelligence gathering operation. Without a court order in hand, an intelligence agency would have to cease surveillance immediately to comply with the law if a surveillance target unexpectedly contacted the U.S., or even contacted a resident alien outside of the U.S. The problem with this, as Mark Steyn has put it, is that…

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.

Wouldn't a rational surveillance reform seek to avoid creating situations where American intelligence agencies could run afoul of the law, just by diligently doing their jobs?