Tice's claims, under the current law and the August 2008 FISC ruling, represent activities that are explicitly legal.
The
FISA Amendments Act of 2008, passed by a two-thirds majority in both houses of Congress, allows for foreign intelligence collection on non-US Persons without a warrant, no matter where the collection occurs. The longstanding
Smith v. Maryland, 442 US 735 (1979), allows for the collection and examination of communications metadata, i.e., "to" and "from" information, without a warrant. The
FISC ruling explicitly finds legal such collection under the now-sunset
Protect America Act and, thus, the current FISA Amendments Act of 2008.
In order to determine which traffic content may be collected for foreign intelligence purposes, the traffic metadata must be examined. Even when a target in question is a specific non-US Person of foreign intelligence interest, traffic metadata must first be examined in order to target that person! Because examining traffic metadata was found explicitly legal and Constitutional three decades ago by the United States Supreme Court, doing so in order to target legitimate foreign intelligence collection is allowable under the law.
The major issues for foreign SIGINT were twofold:
- A lot of traffic is now digital versus analog, and cannot be targeted by aiming a directional antenna at a particular geographic locale. It is now traveling largely via things like fiber optic cables, intermixed with all manner of other communications. In order to target the collection, it is no longer a case of sitting on a Navy vessel offshore from some area of interest between individuals talking on two-way radios; it's finding that traffic in a sea of global digital communications.
- Foreign communications of non-US Persons physically outside of the US was increasingly traveling through the US. Previously fair game for foreign intelligence collection throughout the history of such collection in the United States, it suddenly became off-limits without a warrant because it was incidentally routed through locations in the United States. Foreign intelligence collection on non-US Persons outside of the US does not require a warrant, and fundamentally still shouldn't simply because their traffic happens to enter the US.
This was a case of changing technology necessitating an update to a law. A supermajority of both houses of Congress agreed.
Unfortunately, this discussion is so mired in politics, personal grinding of axes, confusion about early NSA programs (like the so-called Terrorist Surveillance Program, or TSP, which was not renewed after January 2007), and isolated examples of legitimate abuse or misconduct, that not many seem interested in having any real discussion about how foreign intelligence can be reasonably conducted in the digital age. Instead it is a sea of frantic arm-waving and breathless blogging about how the Constitution is being shredded, when the mechanisms of law and judicial oversight have explicitly established the activities as legal.
Ironically, Tice's interview is spot-on. He says, "What was done was sort of an ability to look at the metadata ... and ferret that information to determine what communications would ultimately be collected," and adds, "we looked at organizations, just supposedly so that we would not target them."
"Supposedly?"
That's the
whole point. So here's an example of someone explaining more or less what is happening, namely, that traffic metadata is examined to determine whether or not it constitutes a foreign intelligence target, and that measures were undertaken to
not intercept the
content of communications of entities which are not legitimate targets, even
before the legal situation was clarified. None of the news coverage or associated debate seems able to make the connection that this activity is exactly what is described is explicitly legal under:
- The temporary Protect America Act of 2007, which was in force from August 5, 2007 to February 17, 2008,
- The FISA Amendments Act of 2008, which became Public Law 110-261 on July 10, 2008, and is in force at present,
- The FISC ruling
The cornerstone of the current law and the FISC decision is the protection of the privacy and rights of United States persons. The current law is even more stringent with respect to US Persons than previous law: an individualized warrant from FISC is required to target a US Person anywhere on the globe; before, US Persons did not enjoy the same explicit protections under the law outside of the US.
What monitors this? The same oversight and processes that we trust, by proxy, to monitor the activities of the Intelligence Community. Namely,
- The intelligence oversight committees of both houses of Congress
- Legal counsel for all Intelligence Community components
- The Foreign Intelligence Surveillance Court
- The Department of Justice
- The Executive Branch
In fact, FISA Modernization is listed as the
number one major milestone of the Office of the Director of National Intelligence under the tenure of Mike McConnell.
In sum:
1. A warrant is not required to collect intelligence when the target is not a US Person, regardless of where the collection occurs, including within the US.
2. A warrant is always required to collect intelligence when the target is a US Person, whether inside or outside of the US (more strict than previous law).
3. This requires determining which traffic content can be lawfully collected without a warrant, sometimes with the assistance of telecom operators in the US.
In order to determine which traffic can be lawfully collected without a warrant, basic information about the traffic, such as its source and destination, must also be examined. Such examination of traffic ? a "pen register" ? also does not require a warrant.
The job of our foreign intelligence services is to collect information on the activities and plans of US adversaries. This activity has never required a warrant, because non-US Persons outside of the US are not protected by the Constitution of the United States.
The path traffic takes shouldn't prevent us from doing this job.
I wonder if anyone in the media is interested in having this discussion, or if it's all going to be accusations from whistleblowers, with no consideration of the associated challenges for foreign SIGINT in a digital world?
I also wonder what it's called when you "blow the whistle" on legal activity...?
