What Now? The Future of The Warrantless Wiretapping Program

Congress has passed a horribly ill-conceived piece of legislation at breakneck speed today. H.R. 6304 is a disaster of legislation. They have slapped the American public across the face, handed the FISA court an impossible task, and commit thousands or maybe millions of crimes per day in the process. We have all heard about the immunity clauses but let's look closer at the rest of it and where we're heading.

A quick history class reminder about the fourth amendment. It says that the government cannot search you without probable cause.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

H.R. 6304 asks the FISA court to respect the fourth amendment. Sec 702 (b) (5) says "(acquisition of foreign intelligence information) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States." Because of the way the surveillance works, this is literally not possible. It asks this in other contexts besides 702 (b) (5), but this particular section is literally impossible for the FISA court to uphold. The reason is because in order to catch the evil conversations, the government MUST inspect every piece of data transferred across it's network. Let's take a look at some theoretical conversations crossing the path of the NSA.

In the diagram, each line is a conversation between two people. The event circles with 1 and 2 that fall on conversation line B represent some interesting information that the government wants and will use. This is known as the "signal", it's the information that is the point of the legislation. We'll call these "events" because they occur at a specific point in time. Conversation B is an actual terrorist plotting actual bad things.

Before we get into what will happen to the people involved in conversation B, let's look first at the innocents. Conversations A, C, D, E are not between terrorists. They're you emailing grandma about the awesome new flip-flops you just bought. They're me updating this website. They're Digg users clicking that little digg button. The random black dots in the diagram represent these uninteresting bits of information. This can also be called "noise", short for "white noise", like the static of a television without a signal. The black dots are potential events just like 1 and 2, but for whatever reason they were ignored by the terrorism catching system.

The fact is, in order to have found interesting events 1 and 2, every single event on the diagram was inspected by a computer algorithm to rule out the noise. Someone might say "so what? a human never saw it." Irrelevant. What did we just look at? A document that says you need a warrant to search, and it needs to specify exactly where the search can take place. In the case of every black dot on the diagram, somebody was searched illegally.

Why do we think that the fourth amendment applies when it's a computer doing the searching and not a human? Because that computer is an agent of the government, specifically the NSA. They control what it searches for, the criteria for making a black dot into a white one in the diagram. They control what information gets to FISA and eventually the public. Your information resides in the memory bank of their computer, however briefly, and their software inspects every word. That is a "search". It is "unreasonable" because you did nothing to deserve being inspected for simply downloading today's daily Sudoku.

So without even being involved in anything illegal, twelve different people had their rights violated in the small diagram above. We show eight counts of illegal searches (the black dots) between these twelve people. It is less clear if the event 1 and 2 wiretapping is legal. FISA is supposed to allow the type of monitoring we're suggesting here. But the means of obtaining this information - searching everybody all the time - is highly dubious in itself.

Just imagine- every single conversation passing through the monitoring facilities, millions per day. The number of crimes this will cause is staggering. Every day the program goes on, every single person using the internet in the United States is being spied upon.

Now, let's look at the evil terrorist in conversation B. At first, his rights were violated along with the rest of us poor schmucks when he said something benign to his buddy in [insert evil country here]. Then he drops some known terrorist's name. The combination of those words and possibly the destination country of the message will trigger some type of event in the monitoring system.

The wording of H.R. 6304 and of course original FISA both declare that at least one end point of the communication is on foreign soil. We said "possibly the destination country" above, because it seems much more likely that the system catches certain phrases first, then looks to see if both the start and end points of the communication are inside the US, in which case it would throw out any possibility of an event. If the system doesn't trash US to US communications immediately, one would hope at the very least put a big fat warning on the agent's screen "NO SEARCH AUTHORIZED - BOTH ENDPOINTS INSIDE US". Both of these options are pretty horrible for somebody, and it's hard to imagine alternatives. Would the agency blindly throw away data which is of the "interesting" variety? The law says they must. The FISA court was assigned the job of making sure that the spying system only deals with comms where at least one person is outside the US, so figuring out how to handle these peculiarities is now their problem.

Event 1 in the diagram is a small event. It's only discussed inside the NSA and is not by itself enough to take action. Who knows how many innocent conversations of type 1 will be inspected by NSA agents. Hopefully the system at least contains some kind of protection so that agents cannot just put J-Lo's email address into the system and casually see what she's up to, and that this protection cannot be bypassed easily, or at all. Again, the FISA court is supposed to protect us from this. It may not be possible. Continuous monitoring of the agents - watching the watchers - is the only sure method. Just inspecting the software once, up front, is not enough. Security vulnerabilities are often discovered in software that can give someone connected to a network much more power than was intended.

Event 2 in our diagram is a big event. Worthy of bringing attention to FISA and taking action. Or rather, worthy of taking action and THEN going to FISA in the backwards reality that is wiretapping in the 21st century. Let's say our terrorist started talking specific delivery dates or similar, which triggered another event in the system. This second event will undoubtedly be linked to the first, making the beginnings of the criminal profile of these terrorists in events 1 and 2. So the NSA recommends to the president to pick this guy up. Prez agrees and takes both parties into custody. The FISA secret court makes it's ruling (undoubtedly granting the warrant). Now what?

Well, the Supreme Court of the United States recently ruled in Boumediene v. Bush that such enemy combatants have a right to challenge their detention in a US civilian court. So, the government must now, with it's FISA backed evidence in hand, proceed to make a case against the defendant.

It's an interesting possibility that a clever defense lawyer could declare that his client was improperly searched under the fourth amendment. The courts would likely strike this idea down unless one of the people was a US citizen on our soil, which is not allowed under FISA - a regular warrant must be served. In this hypothetical, any other evidence gathered after this point would become irrelevant because it was obtained through illegal information - "Fruit of the Poisonous Tree." It's a tempting defense. If the judge bought it, and the case was eventually allowed to make it's way to the Supreme Court, it could then potentially rule on the legality of the program as a whole. Since FISA deals with people outside the US, this is highly unlikely.

Because of the possibility of a FISA backed case making it's way to the Supreme Court, we believe that such a case will never be allowed to be brought into the regular civilian court system. Doing so would undermine the program. So perhaps the President and the CIA can just quietly take out the terrorist, crisis averted, nice and clean. If any US citizens become a target of the program illegally, the program could be reviewed in court, but it seems like the government will be very careful not to let that happen.

So what can us normal folks, the "noise" in their equation, do to receive some justice for these crimes? Except for pontificate in fantasies of a case reaching the Supreme Court like the one above, not a whole lot. You can give money to groups like the AccountabilityNow Political Action Group, but we are having a hard time seeing how this will help.

As is well known, H.R. 6304 blocks any attempt at civil justice. We're noise to the NSA while they search for terrorists, and we're noise to the federal government in asking for justice. The congressional and executive branches of the government have hobbled the judicial branch - the only branch remaining with any power to do anything.

A possibility to at least protect yourself from prying eyes is by running software to encrypt your communications and hide the destination of your internet traffic. A piece of software called Tor can automate this process for you, but it's not exactly simple to set it up for the lay-person, and will almost certainly not be widely adopted by any significant majority of US internet users.

It is quite clear who caused this mess: the George W. Bush administration created the program. An army of telecommunications lobbyists did a fine job of getting congress to exculpate their client companies, the president, and congress themselves from any wrongdoing. It seems highly doubtful now that any member of this group will ever be punished for stomping on the constitution and pissing on the American people.

To put this quite bluntly: we're totally fucked. There will likely never be suitable justice.

Update: The ACLU and the EFF have decided they will file a new lawsuit when Bush signs it into law. Hopefully they will have better luck than the American people have had in stopping this horrendous program. We will certainly be reporting on this case in future articles.

Note: this post has been updated for better clarity.

Related: A Brief History of Government Surveillance