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A topic largely absent in the ongoing debate about reforms to the Foreign Intelligence Surveillance Act is technology. Millions of domestic and foreign phone calls and e-mails daily traverse the fiber-optic switches, servers, hubs, routers, and transfer stations of the nation’s largest communications companies. That’s the international information superhighway that the federal government argues it must be free to patrol in order to snare criminals, terrorists, spies, export violators, and arms dealers. Yet very little has been said about the impact FISA reforms will have on technology — and vice versa. White House officials, and their counterparts at the Office of the Director of National Intelligence and the Justice Department, have argued fervently in the last year that the 1978 law needs to be revised to close dangerous gaps created by technological advancements. The latest effort at FISA reform, the Restore Act of 2007, which passed the House Intelligence and Judiciary committees on its way to a full House vote this week, seeks to replace the temporary Protect America Act, which was hastily passed in August. But both are just stopgap measures that don’t fully address today’s needs, some scholars say. William Banks, a law professor and director of the Institute for National Security and Counterterrorism at Syracuse University, says the “Band-Aid” amendments highlight the need to rewrite FISA, which he says is on its deathbed. “I think that this is simply extending more bricks on top of a crumbling foundation,” Bank says. “I think they are going to have to go back [to the drawing board], in part because of changes in threats and in part because of changes in technology.” So far, the Justice Department’s National Security Division and its counterparts in the intelligence community are satisfied with the expanded powers granted under the Protect America Act and have sought to make the August amendment permanent. They are concerned that the Restore Act places too much power in the FISA court and mandates too much oversight and reporting, which they say could tie up valuable resources. A QUESTION OF �MINIMIZATION’ One veteran computer engineer disappointed that technology has not entered the debate is Susan Landau, a Sun Microsystems Laboratories scientist and co-author of Privacy on the Line: The Politics of Wiretapping and Encryption. Landau, a former math professor, applauds the proposed oversight and reporting requirements of the new bill but laments the overall lack of technical expertise in Congress. To date, she has been contacted by, but has not consulted with, a few congressional aides. She speculates that technology has been off the radar because last summer’s debate leading up to the passage of the Protect America Act happened quickly. And second, she believes lawmakers are “not well-versed” when discussing technical matters in closed sessions with intelligence agencies. She advocates having technically savvy auditors and personnel to screen the interception of Americans’ communications, a government process known as �minimization’ that seeks to narrow the scope of wiretaps. “You need oversight for security purposes and to make sure the system is running properly to prevent abuses,” Landau says. Wiretapping can be problematic because the same technology that allows a government to tap lines can also be hacked, Landau says. It’s a government-sanctioned breach, and it exposes the system to unauthorized users. “The system, by its creation, puts Americans at risk,” she says. Landau’s unease is not just about government agents’ encroachment on the Fourth Amendment. She also worries about the vulnerability of the nation’s communications system and private industry’s networks. Observers also say another reason technology was not addressed in the ongoing debate is that the administration has not been forthcoming about the phone companies’ roles in the National Security Agency’s warrantless eavesdropping effort. That program, disclosed in late 2005 in a New York Times story, was brought under the purview of the FISA court earlier this year and led the administration to seek greater powers leading up to the August bill. Congressional staffers have said the lack of information about the origins of the warrantless domestic surveillance program makes it difficult for lawmakers to weigh blanket amnesty for the phone industry. That lack of cooperation also made it less likely that technical aspects of FISA would be addressed during hearings. For example, not one phone company representative or lobbyist spoke up during last month’s congressional hearings. “They were not considered,” says Melanie Roussell, press secretary to House Judiciary Committee Chairman John Conyers Jr. (D-Mich). The Restore Act is silent on the retroactive immunity request. Conyers last week said without cooperation on requested records from the executive branch, there will be no such legal cover. President George W. Bush, meanwhile, has promised to veto any bill that does not include the immunity. FISA’S FIRST COUSIN Back when President Jimmy Carter oversaw the enactment of FISA, the NSA used satellites and listening posts around the world to pluck radio communications out of the air and relay that information back to the United States for analysis. Today, however, most international calls and e-mails pass through U.S.-based digital switches, routers, or servers, even when both parties are in foreign countries. David Rivkin, a Baker & Hostetler lawyer who worked in both the Reagan and George H.W. Bush administrations, says accidental monitoring of innocents’ phone calls shouldn’t raise alarm. “[Warrants] are not designed particularly to protect the myriad of others who may come into contact with the target and, in the process, also may have their communications intercepted,” Rivkin testified before the House Permanent Select Committee on Intelligence last month. FISA is not the only law that allows for eavesdropping. FISA’s legislative cousin is the 1968 Omnibus Crime Prevention and Safe Streets Act, which is used in federal, state, and local criminal prosecutions. It allows so-called Title III wiretaps for criminal investigations. To facilitate the government’s ability to tap into the vast communications networks, federal agencies lobbied for and got the powerful Communications Assistance for Law Enforcement Act in 1994. As opposed to warrantless surveillance of foreigners whose calls sometimes involve U.S. citizens, wiretaps in criminal cases must be approved by a federal or state judge. In 2006, a total of 1,839 applications for criminal investigations were granted by federal and state judges nationwide. By comparison, the FISA court approved 2,181 intelligence-gathering requests in 2006. Robert Corn-Revere, a partner specializing in First Amendment, Internet, and privacy litigation at the Washington office of Davis Wright Tremaine, says the technology debate will inevitably re-emerge. “The focus at the present is really on more fundamental policy questions,” says Corn-Revere, who in 2000 first alerted Congress to the FBI’s controversial and now-extinct Carnivore e-mail surveillance program. “But I don’t think it’s possible to entirely separate technology from the discussion.”
Pedro Ruz Gutierrez can be contacted at [email protected].

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