Would the White House be Able to Eavesdrop on Obama Under the FISA Bill Barack Supports? You Bet.

Senate Democrats and Republicans alike are now poised to pass H.R. 6304, known as the FISA Amendments Act of 2008, a bill touted by both House and Senate leaders to be a compromise proposal to prior Senate Bill 2248. Unfortunately, H.R. 6304 may give the Bush administration, in its last months, the ammunition it needs to hijack the 2008 presidential election.

It has been known for some time that, since 2001, the Bush administration has conducted mass surveillance of the email and telephone calls made by American citizens. All electronic messages passing through switches in the US, regardless of whether they were international or domestic communications, have been systematically intercepted and screened by the National Security Agency (NSA). Technologies, which were installed at major hubs of telecommunication companies throughout the nation copy and deposit all electronic messages into a giant NSA computer network. The NSA then uses complex algorithms to parse through these messages using matching criteria such as key words, phone numbers, and dates, and linking these data to further data--anything from credit card and bank records to movie rentals.

H.R. 6304 does not, on the face of it, require that these complex algorithms that are used to parse through our electronic messages be examined and approved by a FISA Court. The role of the FISA Court seems to be limited to approving the general design of the software used in conducting acquisitions of information. This consists of reviewing the authorizations made by the Attorney General and Director of National Intelligence to see if this general design satisfactorily conforms to "minimization procedures," that is, that they take reasonable precautions to avoid targeting American citizens. However, without access to the algorithm itself, as well as to the actual source code and a representative sampling of the data that ultimately get caught in its electronic net, there is no way to confirm that the actual procedures pass legal muster and are constitutional.

The Act does require that the certification sent to the FISA Court "include the procedures adopted in accordance with subsections (d) [targeting procedures] and (e) [minimization procedures]." However, if this requirement is to have teeth, then it must be interpreted very strictly to include demonstrable evidence that the algorithm satisfies the said standards. Otherwise, the new rule is tantamount to a blank check to invade the privacy of every American citizen.

For example, according to H.R. 6304, an acquisition "may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States." This proscription against reverse targeting provides a potentially important protection. However, it means very little unless there is a way of proving that the procedures adopted do not reverse target particular Americans. Unfortunately, the Act does not appear to provide any way of verifying this because it does not require that the government provide particular names, addresses, places, and other details. For instance, the Boolean command, "If x > 0 and y > 0 then Flag Message" takes on meaning only if the variables x and y are given a physical interpretation. Thus, there would be serious breaches of both First and Fourth Amendment rights if these physical interpretations were "x = Name of American Journalist" and "y = Name on Bush Enemies List." Without such particular knowledge, the FISA Court would be impotent.

What this means is that the FISA Court must require such particular knowledge and it must avail itself of independent expert witnesses who have the mathematical and scientific expertise to adequately assess the software being used by the government to conduct its surveillance activities. It also means that the program needs to be under constant and careful watch by a vigilant judiciary. This would involve periodic audits to make sure that the software being used is actually the software for which a certification has been granted by the FISA Court.

Unfortunately, even with such a safeguard, the proposed legislation would still grant both retroactive and future legal immunity to telecom companies that help government conduct its surveillance activities. Not only does H.R. 6304 grant immunity from civil action to telecoms that participated in the president’s surveillance program during the period beginning on September 11, 2001 and ending on January 17, 2007. It also unconditionally releases these companies from any future liability (presumably both civil and criminal). For it unqualifiedly states, "No cause of action shall lie in any court against any electronic communication service provider for providing any information, facilities, or assistance in accordance with a directive issued pursuant to paragraph (1)." So, if American citizens cannot file suit against these companies for past or future violations of their Fourth Amendment right to privacy, then it has to be questioned how this Act preserves this constitutional right..

Nevertheless, the importance of placing the government under careful judicial watch cannot be underestimated because without such oversight of government surveillance activities, American citizens would be left completely vulnerable to having their privacy unlawfully abridged. And with retroactive and future immunity given to the telecoms, Americans would then have no available legal recourse to seek redress for these violations—or even to know or find out that they are being so violated.

Therefore, before its passage, H.R. 6304 should in the very least be amended to make explicit that there be demonstrable evidence that the procedures adopted for surveillance purposes meet the constitutional requirements the law demands. In its present form there appears to be a serious disconnection between these constitutional provisions and the Court procedures for determining whether they have been met.

The implications for not doing this can be profound and far reaching for the survival of democracy in America and they cannot be understated. Two of the most urgent and immediate of these implications are as follows:

Without rigorous judicial oversight and monitoring of surveillance procedures, the Bush administration will, in the next months, have a timely window of opportunity to intercept its Democratic opponents’ email messages and phone calls according to self-serving algorithms that screen for names, addresses, and other indicators that are correlated to these individuals. During the Nixon administration technology was not so sophisticated and Nixon’s Burglars had to break into Democratic National Headquarters in order to plant a bug. This can now be done simply by implanting the appropriate algorithm into an NSA computer network.

Second, electronic voting is essentially tied to the phone lines because all votes cast in individual precincts must pass through the phone lines on their way to be tabulated at the main tabulation center. This makes it possible to electronically reconfigure votes before they even arrive at a central tabulation point by embedding the appropriate software in the lines, thereby destroying the prospect of a fair election outcome.

This case resembles "black box" voting where once the votes are cast, it is impossible to see what happens to them. Those who have seen the danger of this have sought to create a paper trail that could provide a means of verifying an election outcome. But now we may be faced with a potentially more ominous strain of the black box problem—votes that disappear into the void of cyberspace only to reappear at the other end of a wire in an altered state. In this digital age, independent inspection of voting machines and careful monitoring of election practices may therefore prove insufficient when cyberspace is not also safeguarded.

The Obama Campaign may be assuming that such electronic manipulation of votes will not happen, but this may be wishful thinking given what we now know about how far this administration will go to get what it wants—and what it clearly wants is to see John McCain "win" the election.

Senate Democrats who are backing the proposed legislation may do well to rethink their commitment as elected officials before signing off on it without adding the requirement that there be demonstrable evidence that surveillance procedures satisfy constitutional requirements.