In December 2005, The New York Times exposed what was possibly the largest governmental violation of federal law since the Nixon-era Watergate scandal. In a series of articles, it detailed how President Bush had secretly authorized the National Security Agency, America's largest spy agency, to engage in domestic wiretapping and data mining of the telephone calls and e-mails of terrorist suspects, bypassing the legal procedures regulating this activity.
A proper congressional response would have been to indict President Bush and his aides for wholesale violations of the Foreign Intelligence Surveillance Act (FISA), violations of which are punishable by a five-year prison sentence.
But instead, the Bush administration invoked the now familiar "terrorist excuse" to intimidate the U.S. Congress and any federal prosecutor who might have had misgivings about the top-secret program. Its only concession was to grudgingly agree to submit its requests to the Foreign Intelligence Surveillance Court, a secret court set up under FISA to review intelligence-related surveillance requests.
But earlier this year, this court apparently rejected an administration request to conduct untargeted and wide-ranging surveillance of e-mails and telephone calls of suspected terrorists that occur overseas, but that pass through U.S.-based data networks. In response, after a frantic push by the White House, Congress has eviscerated the FISA statute and legalized the Bush warrantless surveillance initiatives. President Bush signed the new legislation into law on Sunday, August 5.
While billed as essential to fight the "War on Terror," the "Protect America Act" doesn't limit the NSA's domestic spying efforts to terrorist investigations. Instead, all that's needed is that "foreign intelligence retrieval" be a "significant purpose" of the surveillance. The new law places the authority for such surveillance in the hands of the attorney general—not the FISA court. From this point forward, the court's only role will be to review surveillance that's already been conducted, and intervene if the procedures set out in the act haven't been followed.
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While "foreign intelligence retrieval" might appear at first glance to be an acceptable rationale for warrantless surveillance, this definition encompasses far more than listening in on suspected terrorists. For instance, in the past, the NSA has conducted surveillance of foreign companies engaged in high-tech research. The results of this surveillance have been passed on to politically connected U.S. companies. Under the Protect America Act, this type of surveillance can now presumably be conducted without a warrant.
Nor does the act restrict its application to overseas telephone communications that pass through U.S. data networks. For instance, if a U.S. person makes or receives a telephone call to London, Zurich, Tokyo, or anywhere else in the world, the NSA can listen in without a warrant if the target of the surveillance is overseas. Indeed, the wording of the law would appear to legitimize the wholesale data mining of such telephone calls, targeting only those that contain "trigger words" tied to foreign intelligence for review by a human analyst.
That's just the beginning. U.S. telecommunications companies may be compelled to comply with warrantless instructions to give the NSA or other spy agencies direct access to the fiber optic cables that carry most international phone conversations. We're supposed to trust the government not to carry out unauthorized surveillance of the conversations carried on these switches.
The only silver lining in this act is that it expires in 180 days. We can only hope that Congress comes to its senses in the next six months to reinstitute the minimal protections that existed under the old FISA statute, rather than eviscerate it completely.
In the meantime, you should assume that every phone call you make internationally is being monitored, legally or illegally. If you need privacy in your international communications, use encrypted e-mail—not the telephone. PGP (http://www.pgp.com) is effective for this purpose.
Copyright © 2007 by Mark Nestmann
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