FISA hysteria on the right

Jacob Sullum:

When you talk to your mother on the phone, do you have a reasonable expectation of privacy? I thought I did, but apparently I don't — at least, not anymore, because my mother lives in Jerusalem.

Under the inaptly named Protect America Act of 2007, which President Bush signed into law on Sunday, the federal government no longer needs a warrant to eavesdrop on phone calls or read e-mail messages between people in the U.S. and people in other countries. Unless the courts overturn this law or Congress declines to renew it when it expires in six months, Americans will have no legally enforceable privacy rights that protect the content of their international communications.

Congress rushed to pass the law, which amends the Foreign Intelligence Surveillance Act (FISA), because the Bush administration said it was urgently needed in light of a secret ruling earlier this year by the Foreign Intelligence Surveillance Court. The court concluded that FISA requires warrants to monitor phone calls and e-mail messages routed through U.S. switches, even when both parties to the communication are outside the country.

Although based on a defensible reading of a 1978 law that did not anticipate the details of 21st-century telecommunications systems, the ruling created an arbitrary restriction on monitoring of foreign-to-foreign transmissions, which ordinarily does not require a warrant. But in addition to fixing this problem, Congress gave the executive branch the unilateral authority to approve surveillance of international communications involving people on U.S. soil.

Such spying is not limited to investigations of al Qaeda or other terrorist groups. The government need only assert that obtaining "foreign intelligence information" is "a significant purpose" of the surveillance. It is also supposed to adopt "reasonable procedures" for determining the information it seeks "concerns persons reasonably believed to be located outside the United States."

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Mr. Sullum does not explain how his mother might have some foreign intelligence information and if she did why his conversation with her would be of any interest to people who have real leads on real terrorist that they are focusing on. If his conversations are like those I have with my mother, I am sure that anyone hearing it would get pretty bored quickly. Even the conversations I have with my daughter and grandson in Bangkok, which might come under the attack would hold no interest to anyone outside my family and certainly no interest to anyone who job is looking for the next terrorist attack. If they happen to overhear that conversation while looking for a conversation with a terrorist so what. The "loss of privacy" is a pretty small price to pay for stopping the mass murder of my fellow citizens.

BTW, the calls are made using an internet phone connection which was clearly not available when FISA was written. If they get as excited as I do when I hear Jake say "Hi Grandad," more power to them. Everyone should share that feeling.