As Congress prepares to reauthorize the controversial FISA Amendments Act of 2008 — which effectively legalized the notorious warrantless wiretap program launched by President Bush — much about the law remains shrouded in secrecy: The National Security Agency has refused to give legislators even a rough estimate of how many Americans’ communications have been swept up in the digital dragnet.
Yet even four years after the FAA’s passage, one of the biggest mysteries isn’t how the law has been used, but why it was necessary in the first place. One surprising — but surprisingly plausible — explanation points to the unexpected consequences of broadband deregulation.
In other words, it seems entirely plausible that the Bush administration’s deregulation of cable broadband service accidentally led to a secret court refusing to approve a sizable chunk of the NSA’s wiretapping activities. That ruling then precipitated a dramatic political battle full of overblown claims of threats to America and eventually resulted in the passage of a measure expanding the NSA’s ability to intercept communications inside the United States.
For those who don’t remember, the FISA Amendments Act was introduced to replace the short-lived Protect America Act of 2007, and both were designed to enable large-scale programmatic surveillance of communications between the United States and other countries.
Controversy over a provision granting retroactive immunity to telecommunications firms that participated in the original, extralegal warrantless wiretap program stalled the bill in Congress for months in late 2007 and early 2008: Senator Chris Dodd filibustered the initiative, and then-senator and presidential candidate Barack Obama opposed the bill, but finally agreed to support it, while promising to revisit and reform the bill once in office. Despite that promise, the Obama administration has now declared the reauthorization of the FAA without substantial changes a top legislative priority.
At the time, Americans were told that the FAA (and before it, the PAA) was needed because of a ruling by the secretive Foreign Intelligence Surveillance Court that had prevented the government from intercepting purely foreign-to-foreign communications that happened to pass over American wires.
That came as a surprise to surveillance experts, because the Foreign Intelligence Surveillance Act from 1978 had always defined the interception of the contents of a “wire communication” as “electronic surveillance,” requiring a court order if and only if either the sender or the recipient of that communication was inside the United States. Intelligence surveillance of strictly foreign-to-foreign wire communications was always understood to be allowed, even if the interception was done domestically, when the communication happened to pass through a U.S. telecom switch.
But apparently in early 2007, something changed.
Then-House Minority Leader John Boehner (R-Ohio) publicly declared that a secret ruling by the (normally highly deferential) FISC had found a problem with a National Security Agency surveillance program, and had limited NSA’s ability to intercept even wholly foreign communications.
Supporters of broader spying powers characterized the decision as requiring a warrant for all interception of foreign-to-foreign communications, including phone calls, but that turns out not to have been quite accurate: Kenneth Wainstein, then a high-ranking Justice Department official, later clarified that the problem was specifically related to interception of e-mail, where the locations of both parties to the communication might not be known to NSA in advance.
Even this, however, was a little peculiar.
E-mail was not exactly a new technology in 2007, after all, so what had changed? At the time, those of us who closely-followed intelligence policy mostly assumed that the issue had to do with the greatly increased breadth of the surveillance NSA was trying to conduct. But there is another possibility that fits the public evidence very well –one hinted at very indirectly in the new edition of the standard legal reference text on FISA law, David Kris and Douglas Wilson’s “National Security Investigations and Prosecutions.”