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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Wednesday, August 09, 2006

More Poison Pills in the Specter Bill?

By Anonymous Liberal -- I don't have time today to write much of anything substantive, but I wanted to highlight an important bit of legal analysis that hasn't yet garnered the attention it deserves. Both Glenn and I have described in some detail why Arlen Specter's "compromise" surveillance bill is a truly awful and pernicious piece of legislation. But it may be even worse than we realized (if that's possible).

Last week, Professor Orin Kerr provided some much needed analysis of the definitional changes contained in the Specter bill. He pointed out that Specter's bill would change FISA's definitions of "electronic surveillance," "contents," and "agent of a foreign power." He concluded that "the Specter bill would make some pretty significant changes to some of the basic principles of FISA." His entire analysis is worth reading for anyone interested in this issue. The part that really caught my eye, though, was this:


The changes to the definition of "electronic
surveillance" are even more important. Part of the
changes are presumably needed to authorize the
NSA program; much of the program would seem to
be excluded from the definition of "electronic
surveillance." But more broadly, note that under
the new definition, monitoring does not constitute
electronic surveillance if a) the person monitored
has no Fourth Amendment "reasonable expectation
of privacy" or b) no warrant would be required to
conduct that monitoring in the criminal context.

This explicit incorporation of Fourth Amendment
law as the sole test of the statute is troubling, I think,
because the Fourth Amendment standards for
electronic surveillance are tremendously murky right
now. For example, courts have held that you don't
have a reasonable expectation of privacy in calls to or
from cordless phones, and they have used reasoning
that would also appear to apply as well to cell phone
calls. (You have statutory privacy protection, which
is much stronger than constitutional protection, but
not constitutional protections.) If you don't have a
reasonable expectation of privacy in your cell phone
calls, which those cases suggest is the case, Specter's
bill would mean that the NSA can tap every
cell phone in the country of every US citizen,
for entirely domestic calls, all without a
warrant. This monitoring wouldn't be "electronic
surveillance" because (based on the cordless phone
cases) the Fourth Amendment doesn't apply.

Similarly, right now it's really uncertain whether
one can have a reasonable expectation of privacy in
your e-mail, and if so, when such protection exists.
(Again, there is statutory protection, but
constitutional protection is really uncertain.) Some
scholars suggest that there is such protection, others
suggest there isn't; as a matter of doctrine, the
answer is essentially unknown. But if the statutory
standard hinges on constitutional protection, and it
may be that there isn't any constitutional protection
at all, then it may be that there is no statutory
protection either. And since the government's
applications are secret, we wouldn't know it.

My sense is that whoever drafted the Specter bill--probably David Addington--intentionally packed it full of poison pills. The bill seems to legalize warrantless surveillance in many different ways, some of them obvious, some more subtle. This built-in redundancy is likely a way of insuring that even if the bill gets amended on its way through Congress, it will still contain some statutory hook on which the administration can hang the legality of its surveillance practices. The administration may have suspected that the bill's most brazen provisions, such as the one doing away with FISA's exclusivity clause, would encounter Congressional resistance and ultimately be left out of the final bill.

In other words, there seem to be a number of fallback provisions built in to the bill. If it is passed in its present form, these provisions are largely superfluous and unnecessary; FISA, by its own terms, would no longer be the exclusive means through which surveillance could be conducted. But the administration may have anticipated resistance and planned accordingly. They may be counting on the bill's opponents focusing their fire on the more provocative provisions of the bill while ignoring the subtler changes, such as the ones Orin Kerr highlights in his post. This is all the more reason for opponents of bill to focus on killing it altogether.

-posted by A.L.

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