Well, this is another FISA mess

Something to add to my post the other day about last week's FISA developments is that it turns out that tapping telephones may not even be the real issue to the spooks. The Washington Post reported on Tuesday that at a Monday breakfast meeting, Kenneth Wainstein, assistant attorney general for national security, said that

FISA's current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States. The real concern, he said, is primarily e-mail, because "essentially you don't know where the recipient is going to be" and so you would not know in advance whether the communication is entirely outside the United States.

Ryan Singel at Wired.com's Threat Level blog, Kurt Opsahl at the Electronic Frontier Foundation, and Christopher Soghoian at the Surveillance State blog at CNet.com all spotted the revelation and its significance. It has also served to point up a misunderstanding on my part which doesn't affect the overall issue but does affect my understanding of some of the arguments.

This whole business supposedly started with a FISC decision that warrants were required to wiretap foreign-to-foreign calls which passed through the US. I had assumed all along that the decision referred to wiretapping done inside the US because the reason the issue ever arose was the changes in telecommunications technology which resulted in calls which previously would not have passed through the US, now doing so. Which means in turn that earlier on, listening in on foreign-to-foreign calls would require the listening post to be outside the US. My understanding was that the spies started tapping those calls as they passed through the US and it was that which the court said could not be done without a warrant.

Apparently, however, the actual claim of Pah! supporters has been that the court required warrants for all such calls no matter where the tapping was done - and unless directly pressed on the matter, the administration was happy to let that false impression persist. Thus, for example, Singel could report this exchange on February 28:

Today, a spokesman for the Director of National Intelligence spokesman Ross Feinstein told THREAT LEVEL bluntly that the court made the big ruling:

"If a communication touches a U.S. wire. you need a court order," Feinstein said. "If it comes through the U.S., you need a court order."

When THREAT LEVEL expressed dismay, Feinstein put the phone on hold and returned shortly, with a different explanation.

"Due to rulings from the FISA court, in a significant number of cases, the government had to get court orders for purely foreign-to-foreign communications that touched American wires," Feinstein said.

Which, as Singel notes, is quite a different statement and in line with the narrower ruling that the FISC only placed warrant requirements on spying done within the borders of the US.

Getting to Wainstein's statement, in a later entry Sengel noted that it reaffirmed the contention that the ruling was actually a narrow one, which

means all the hysterical screaming and the dire scenarios constructed by right-wing spying proponents based on very thin evidence of what the secret court actually ruled - all of it is just wrong.

And more to the point, the Justice Department and the Office of the Director of National Intelligence allowed them to be wrong for months. They allowed and facilitated their supporters to scare freedom loving people with phantoms of lost wiretaps.

DNI Michael McConnell, the serial exaggerator who claims to be a non-political straight shooter, himself kept saying the NSA lost 70 percent of its capabilities after the ruling.

If that's the case, that means that 70 percent of what the NSA does is collect emails inside United States telecom infrastructure and service providers.

Either that or McConnell was just lying through his damn teeth. Which I have to admit I think is the more likely alternative.

Opsahl noted that by Wainstein's assertion, neither FISA nor the FISA court in any way

impede the interception of foreign-to-foreign emails, VOIP calls or other communications, so long as you know both ends are foreign.

This is a critical admission because it puts the lie to talking points made all over by supporters of the wiretapping legislation.

But it was Soghoian who directly took up the issue of the emails.

According to the relevant Wikipedia page, the Internet backbone (commonly understood to mean the collection of Tier 1 internet Service Providers) is made up of: AOL Transit Data Network, AT&T, Global Crossing, Verizon Business (formerly UUNET), NTT Communications, Qwest, SAVVIS, and Sprint.

From numerous press reports, we already know that AT&T, Verizon, and Sprint are involved in the shady NSA wiretapping program. Furthermore, we also know that Qwest refused to participate as the government would not provide a FISA warrant.

That leaves AOL, Global Crossing, NTT Communications, and SAVVIS as other potential participants in any NSA effort to sniff email communications. ...

The Protect America Act of 2007 permitted intelligence agencies to force Google, Yahoo and Microsoft to hand over a copy of every email passing through their systems which lists one non-US recipient. While the law expired in February, any orders initiated under the act can continue until August of this year.

It is unclear what the major email providers could have been forced to do before the Protect America Act. However, if email communications are the most important issue in the telecom immunity debate, we should certainly be looking carefully at these and other email providers. As other bloggers have previously discussed, the proposed legislation would provide immunity for all companies that assisted the administration in its illegal spying, not just AT&T and the other 2 telcos.

A copy of every email passing through their systems which lists one non-US recipient. That's the real issue here, the real power that the spooks are afraid of losing, one that involves a lot more of corporate America than three telcom firms - and one rarely addressed but which must be, and right now.

Make that call. This is a deal-breaker.