NSA, ECHELON, FISA, and You
Sorry for my silence these past few days. Real life intervened.
One of the issues with which I have been grappling is the difference between what is happening with the NSA during the Bush Administration as opposed to what happened under previous administrations- Clinton, Bush Sr, Reagan.
At the heart of this question is a global communications interception and surveillance system called ECHELON.
{This section is ganked from this article I strongly suggest reading this article, as it is chock full of interesting information. In the meantime, a few salient points:
ECHELON was first established in 1971, although it has its roots back in the post-WWII period. It is a multi-nation effort that is not unique- other countries run their own versions of the program.
Because it is impossible to monitor all communications, it samples communications and flags any that tickle a database and raise a flag.
Now, being the sad and sick individual I am, I am flashing back to the old Groucho Marx show "You Bet Your Life" where if you said the magic word, a duck would drop down into the camera shot and you would win $50.
Only here, instead of winning money, the transmission gets further scrutiny.
Now there's a lot of evolving technology here. Obviously it's changed from the 1940s when the program originally started, but the basic premise is the same.
The legal basis of the program evolved as well. Thanks to the 4th Amendment, citizens of this country are safe from "unreasonable search and seizures" and that the government must obtain a warrant to show probable cause to investigate a citizen.
Back in the 1970s, a number of events took place that defined the course and scope of ECHELON. The legal/political history can be found here. Again, to sum up:
A 1972 Supreme Court case established the principle that there is a difference between surveillance for criminal matters and national security issues and that the matter of privacy and free speech and how these actions impact them were very grave issues.
Another key point is that shortly thereafter, details of the Watergate break-in started to come out and included in the scandal was how the Nixon Administration used various government agencies to spy on individuals in the USA they deemed enemies- people/groups opposed to the Vietnam War, political opponents, and the like.
In response, in 1978 Congress passed the FOREIGN Intelligence Surveillance Act. Note the word "foreign". There was now a split between domestic and foreign standards and with it the roles of the intelligence agencies, with the FBI handling domestic and the CIA handling foreign.
Rather than paraphrase, I'm going to cut & paste the section outlining the procedures involved in FISA:
1- FISA regulates the government's collection of "foreign intelligence" information in furtherance of U.S. counterintelligence.
2- FISA was initially limited to electronic eavesdropping and wiretapping. In 1994 it was amended to permit covert physical entries in connection with "security" investigations, and in 1998, it was amended to permit pen/trap orders. FISA can also be used to obtain some business records. . (A pen register collects the outgoing phone numbers placed from a specific telephone line, a trap and trace device captures the incoming numbers placed to a specific phone line. For example, a caller-id box is a trap and trace device.)
3- Under the Fourth Amendment, a search warrant must be based on probable cause to believe that a crime has been or is being committed.
4- This is not the general rule under FISA: surveillance under FISA is permitted based on a finding of probable cause that the surveillance target is a foreign power or an agent of a foreign power, irrespective of whether the target is suspected of engaging in criminal activity.
5- However, if the target is a "U.S. person," there must be probable cause to believe that the U.S. person's activities may involve espionage or other similar conduct in violation of the criminal statutes of the United States.
6- Nor may a U.S. person be determined to be an agent of a foreign power "solely upon the basis of activities protected by the first amendment to the Constitution of the United States."
There were standards established for investigating individual which the government needed to follow and they had to petition a special cour- the Foreign Intelligence Surveillance Court (FISC)- for a warrant.
Again, I am going to gank directly from the website:
Under FISA, the Justice Department reviews applications for counterintelligence warrants by agencies before submitting them to the FISC. The Attorney General must personally approve each final FISA application.
The application must contain, among other things:
1- a statement of reasons to believe that the target of the surveillance is a foreign power or agent of a foreign power;
2- a certification from a high-ranking executive branch official stating that the information sought is deemed to be foreign intelligence information, and that the information sought cannot reasonably be obtained by normal investigative techniques;
3- statements regarding all previous applications involving the target;
4- detailed description of the nature of the information sought and of the type of communication or activities to be subject to the surveillance;
a- the length of time surveillance is required;
b- whether physical entry into a premises is necessary; and
c- proposed procedures to minimize the acquisition, use, and retention of information concerning nonconsenting U.S. persons.
For U.S. persons, the FISC judge must find probable cause that one of four conditions has been met:
(1) the target knowingly engages in clandestine intelligence activities on behalf of a foreign power which "may involve" a criminal law violation;
(2) the target knowingly engages in other secret intelligence activities on behalf of a foreign power under the direction of an intelligence network and his activities involve or are about to involve criminal violations;
(3) the target knowingly engages in sabotage or international terrorism or is preparing for such activities; or
(4) the target knowingly aids or abets another who acts in one of the above ways.
9/11 brought about huge changes. In the subsequent investigations, we saw how there was a breakdown in the intelligence network and that because of the laws and policies involved in the separation between the CIA and FBI, the 9/11 terrorists were able to slip through the cracks.
Now some people want to blame the Bush Administration for this, but it wasn't their fault. This is how the system was set up and it didn't work.
In an effort to prevent this from happening again, the Patriot Act was passed. One of the goals was to dissolve the barriers between foreign and domestic intelligence and law enforcement agencies, allowing for the sharing of information.
The Patriot Act significantly altered FISA. I strongly suggest reading this article. Right now I have to do other things but will take up the impact of the Patriot Act at a later time.
Tags: Bush Nixon Clinton CIA NSA FISA ECHELON 4th Amendment Unreasonable search Probable Cause Patriot Act 9/11
One of the issues with which I have been grappling is the difference between what is happening with the NSA during the Bush Administration as opposed to what happened under previous administrations- Clinton, Bush Sr, Reagan.
At the heart of this question is a global communications interception and surveillance system called ECHELON.
{This section is ganked from this article I strongly suggest reading this article, as it is chock full of interesting information. In the meantime, a few salient points:
ECHELON was first established in 1971, although it has its roots back in the post-WWII period. It is a multi-nation effort that is not unique- other countries run their own versions of the program.
Because it is impossible to monitor all communications, it samples communications and flags any that tickle a database and raise a flag.
Now, being the sad and sick individual I am, I am flashing back to the old Groucho Marx show "You Bet Your Life" where if you said the magic word, a duck would drop down into the camera shot and you would win $50.
Only here, instead of winning money, the transmission gets further scrutiny.
Now there's a lot of evolving technology here. Obviously it's changed from the 1940s when the program originally started, but the basic premise is the same.
The legal basis of the program evolved as well. Thanks to the 4th Amendment, citizens of this country are safe from "unreasonable search and seizures" and that the government must obtain a warrant to show probable cause to investigate a citizen.
Back in the 1970s, a number of events took place that defined the course and scope of ECHELON. The legal/political history can be found here. Again, to sum up:
A 1972 Supreme Court case established the principle that there is a difference between surveillance for criminal matters and national security issues and that the matter of privacy and free speech and how these actions impact them were very grave issues.
Another key point is that shortly thereafter, details of the Watergate break-in started to come out and included in the scandal was how the Nixon Administration used various government agencies to spy on individuals in the USA they deemed enemies- people/groups opposed to the Vietnam War, political opponents, and the like.
In response, in 1978 Congress passed the FOREIGN Intelligence Surveillance Act. Note the word "foreign". There was now a split between domestic and foreign standards and with it the roles of the intelligence agencies, with the FBI handling domestic and the CIA handling foreign.
Rather than paraphrase, I'm going to cut & paste the section outlining the procedures involved in FISA:
1- FISA regulates the government's collection of "foreign intelligence" information in furtherance of U.S. counterintelligence.
2- FISA was initially limited to electronic eavesdropping and wiretapping. In 1994 it was amended to permit covert physical entries in connection with "security" investigations, and in 1998, it was amended to permit pen/trap orders. FISA can also be used to obtain some business records. . (A pen register collects the outgoing phone numbers placed from a specific telephone line, a trap and trace device captures the incoming numbers placed to a specific phone line. For example, a caller-id box is a trap and trace device.)
3- Under the Fourth Amendment, a search warrant must be based on probable cause to believe that a crime has been or is being committed.
4- This is not the general rule under FISA: surveillance under FISA is permitted based on a finding of probable cause that the surveillance target is a foreign power or an agent of a foreign power, irrespective of whether the target is suspected of engaging in criminal activity.
5- However, if the target is a "U.S. person," there must be probable cause to believe that the U.S. person's activities may involve espionage or other similar conduct in violation of the criminal statutes of the United States.
6- Nor may a U.S. person be determined to be an agent of a foreign power "solely upon the basis of activities protected by the first amendment to the Constitution of the United States."
There were standards established for investigating individual which the government needed to follow and they had to petition a special cour- the Foreign Intelligence Surveillance Court (FISC)- for a warrant.
Again, I am going to gank directly from the website:
Under FISA, the Justice Department reviews applications for counterintelligence warrants by agencies before submitting them to the FISC. The Attorney General must personally approve each final FISA application.
The application must contain, among other things:
1- a statement of reasons to believe that the target of the surveillance is a foreign power or agent of a foreign power;
2- a certification from a high-ranking executive branch official stating that the information sought is deemed to be foreign intelligence information, and that the information sought cannot reasonably be obtained by normal investigative techniques;
3- statements regarding all previous applications involving the target;
4- detailed description of the nature of the information sought and of the type of communication or activities to be subject to the surveillance;
a- the length of time surveillance is required;
b- whether physical entry into a premises is necessary; and
c- proposed procedures to minimize the acquisition, use, and retention of information concerning nonconsenting U.S. persons.
For U.S. persons, the FISC judge must find probable cause that one of four conditions has been met:
(1) the target knowingly engages in clandestine intelligence activities on behalf of a foreign power which "may involve" a criminal law violation;
(2) the target knowingly engages in other secret intelligence activities on behalf of a foreign power under the direction of an intelligence network and his activities involve or are about to involve criminal violations;
(3) the target knowingly engages in sabotage or international terrorism or is preparing for such activities; or
(4) the target knowingly aids or abets another who acts in one of the above ways.
9/11 brought about huge changes. In the subsequent investigations, we saw how there was a breakdown in the intelligence network and that because of the laws and policies involved in the separation between the CIA and FBI, the 9/11 terrorists were able to slip through the cracks.
Now some people want to blame the Bush Administration for this, but it wasn't their fault. This is how the system was set up and it didn't work.
In an effort to prevent this from happening again, the Patriot Act was passed. One of the goals was to dissolve the barriers between foreign and domestic intelligence and law enforcement agencies, allowing for the sharing of information.
The Patriot Act significantly altered FISA. I strongly suggest reading this article. Right now I have to do other things but will take up the impact of the Patriot Act at a later time.
Tags: Bush Nixon Clinton CIA NSA FISA ECHELON 4th Amendment Unreasonable search Probable Cause Patriot Act 9/11
posted by Stevie Z at 12:20 PM
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