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Electronic Surveillance

James Risen and Eric Lichtblau have a report today supporting what many around these parts have suggested–that one effect of the amendments to FISA is to expand the kinds of surveillance the Administration can do.

Broad new surveillance powers approved by Congress this month couldallow the Bush administration to conduct spy operations that go wellbeyond wiretapping to include — without court approval — certain typesof physical searches of American citizens and the collection of theirbusiness records, Democratic Congressional officials and other expertssaid.


“This may give the administration even more authority than peoplethought,” said David Kris, a former senior Justice Department lawyer inthe Bush and Clinton administrations and a co-author of “NationalSecurity Investigation and Prosecutions,” a new book on surveillancelaw.

Several legal experts said that by redefining the meaningof “electronic surveillance,” the new law narrows the types ofcommunications covered in the Foreign Intelligence Surveillance Act,known as FISA, by indirectly giving the government the power to useintelligence collection methods far beyond wiretapping that previouslyrequired court approval if conducted inside the United States.

Thesenew powers include the collection of business records, physicalsearches and so-called “trap and trace” operations, analyzing specificcalling patterns.

Note that David Kris is pretty smart about these issues, so if thinks this is possible, then it probably is.

I’m also struck by the inclusion of trap and trace operations in this list. Somewhere, I expect us to be discussing data-mining again, and with trap and trace we’re getting closer to data-mining.

In addition to reiterating some of the concerns that have been raised here and in other blogs covering this, Risen and Lichtblau give sketchy details of two meetings that have occurred since the passage of the bill, one I didn’t know about…

These new powers are considered overly broad and troubling by someCongressional Democrats who raised their concerns with administrationofficials in private meetings this week.


The senior intelligence official acknowledged that Congressional staffmembers had raised concerns about the law in the meetings this week,and that ambiguities in the bill’s wording may have led to someconfusion. “I’m sure there will be discussions about how and whether itshould be fixed,” the official said.

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Marcy Wheeler aka Emptywheel is an American journalist whose reporting specializes in security and civil liberties.