All domestic communications under surveillance


Richard Moore

Original source URL:

Analysis: New Law Gives Government Six Months to Turn Internet and Phone Systems
into Permanent Spying Architecture - UPDATED

By Ryan Singel August 06, 2007 | 2:11:02 AMCategories: Surveillance

A new law expanding the government's spying powers gives the Bush Administration
a six-month window to install possibly permanent back doors in the nation's 
communication networks.  The legislation was passed hurriedly by Congress over 
the weekend and signed into law Sunday by President Bush.

The bill, known as the Protect America Act, removes the prohibition on 
warrantless spying on Americans abroad and gives the government wide powers to 
order communication service providers such as cell phone companies and ISPs to 
make their networks available to government eavesdroppers.

The Administration pushed for passage of the changes to close what it called a 
"surveillance gap," referring to a long-standing feature of the nation's 
surveillance laws that required the government to get court approval to capture 
communications inside the United States.

While the nation's spy laws have been continually loosened since 9/11, the 
Administration never pushed for the right to tap the nation's domestic 
communication networks until a secret court recently struck down a key pillar of
the government's secret spying program.

The Administration argues that the world's communication networks now route many
foreign to foreign calls and emails through switches in the United States.

Prior to the law's passage, the nation's spy agencies, such as the National 
Security Agency and the Defense Intelligence Agency, didn't need any court 
approval to spy on foreigners so long as the wiretaps were outside the United 

Now, those agencies are free to order services like Skype, cell phone companies 
and arguably even search engines to comply with secret spy orders to create back
doors in domestic communication networks for the nation's spooks.  While it's 
unclear whether the wiretapping can be used for domestic purposes, the law only 
requires that the programs that give rise to  such orders have a "significant 
purpose" of foreign intelligence gathering.

The law:

€ Defines the act of reading and listening into American's phone calls and 
internet communications when they are "reasonably believed" to be outside the 
country as not surveillance.

€ Gives the government 6 months of extended powers to issue orders to 
"communication service providers," to help with spying that "concerns persons 
reasonably believed to be outside the United States."  The language doesn't 
require the surveillance to only target people outside the United States, only 
that some of it does.

€ Forces Communication Service providers to comply secretly, though they can 
challenge the orders to the secret Foreign Intelligence Court.  Individuals or 
companies given such orders will be paid for their cooperation and can not be 
sued for complying.

€ Makes any program or orders launched in the next six months perpetually 
renewable after the six month "sunset" of the new powers last for a year after 
being authorized

€ Grandfathers in the the current secret surveillance program -- sometimes 
referred to as the Terrorist Surveillance Program -- and any others that have 
been blessed by the Foreign Intelligence Surveillance Court.

€ Requires the Attorney General to submit to the secret surveillance court its 
reasons why these programs aren't considered domestic spying programs, but the 
court can only throw out those reasons if it finds that they are "clearly 

€ Requires the Attorney General to tell Congress twice a year about any 
incidents of surveillance abuse and give statistics about how many surveillance 
programs were started and how many directives were issued.

€ Makes no mention of the Inspector General, who uncovered abuses of the Patriot
Act by the FBI after being ordered by Congress to audit the use of powerful 
self-issued subpoenas, is not mentioned in the bill.

In short, the law gives the Administration the power to order the nation's 
communication service providers -- which range from Gmail, AOL IM, Twitter, 
Skype, traditional phone companies, ISPs, internet backbone providers, Federal 
Express, and social networks -- to create possibly permanent spying outposts  
for the federal government.

These outposts need only to have a "significant" purpose of spying on 
foreigners, would be nearly immune to challenge by lawsuit, and have no court 
supervision over their extent or implementation.

Abuses of the outposts will be monitored only by the Justice Department, which 
has already been found to have underreported abuses of other surveillance powers
to Congress.

In related international news, Zimbabwe's repressive dictator Robert Mugabe also
won passage of a law allowing the government to turn that nation's communication
infrastructure into a gigantic, secret microphone.

UPDATE: This analysis originally said that the orders entered under the new 
rules could be renewed indefinitely.  That is not accurate.  I conflated the 
ability of the government to continue indefinitely the programs under way under 
FISA before the law was signed, with the section that says that the programs 
under the new law go for a full year, despite the 6 month sunset.

That said, if a future bill includes the same grandfather clause that this bill 
has, the spying outposts could easily permanent.

Those interested in seeing how I made this mistake, look at Section 6 of the 
bill.  I regret the error.

UPDATE 2: James Risen, the New York Times reporter who broke the story of the 
warrantless wiretapping program, has an analysis piece here.

See Also:

€ More Known Unknowns in NSA Spy Controversy: Secret Appeals Courts, Tea Leaves 
and the Mineshaft Gap
  € Bush Administration Reportedly Rejects NSA Spying Compromise Bill
  € Democrats Halt Move to Revamp Spying Laws
  € Patrick Radden Keefe's Slate piece Wiretap at Will

Posting archives:
Escaping the Matrix website:
cyberjournal website:

Community Democracy Framework:

Moderator: •••@••.•••  (comments welcome)