arstechnica | We know that thanks to an AT&T whistleblower, who described a series of secret rooms containing powerful “semantic analyzers” that filtered all the traffic flowing through a company’s fiber optic cables.
Such broad fiber surveillance would, however, pretty clearly be
“electronic surveillance” as defined by FISA, meaning it would require
either a warrant (for content) or a pen register order (for metadata) from the secret FISA court. And since the NSA wanted everyone’s
metadata, not just that of suspected Al Qaeda operatives, it would have
a harder time applying the “AUMF exception” theory in order to get that
permission.
What to do, then?
Words and meanings
At first, according to the leaked NSA report, it seems government
lawyers tried to evade this rather obvious problem through a variety of
word games.
Specifically, NSA leadership interpreted the terms of the
Authorization to allow the NSA to obtain bulk Internet metadata for
analysis because the NSA did not actually “acquire” communications until
specific communications were selected. In other words, because the
Authorization permitted the NSA to conduct metadata analysis on
selectors that met certain criteria, it implicitly authorized the NSA to
obtain the bulk data that was needed to conduct the metadata analysis.
There were a couple of problems with this. First, while the NSA’s own
internal definitions may not count a communication as “acquired” until
it has been processed into a human-readable form, that’s not a
definition that applies anywhere else in the law. Rather, if you bug
someone’s room or tap her phone, you’ve “intercepted” her communication
(and committed a felony) as soon as it is rerouted into your recording
device, regardless of whether you ultimately listen to the recorded conversation. As one federal court
has put it, “When the contents of a wire communication are captured or
redirected in any way, an interception occurs at that time.”
Second, NSA lawyers hadn’t actually been kept in the loop on the
legal justifications for the STELLAR WIND program, which means they may
not have understood that the administration was now relying on the AUMF
as the authority for circumventing the FISA process.
This, then, was almost certainly the problem that provoked the hospital showdown. The interception of phone and e-mail content
was clearly electronic surveillance, but it was (in theory) limited to
targets within the scope of the AUMF (which allowed the president to
“determine” who had “aided” the 9/11 perpetrators). The bulk collection of phone records was not limited, but it also wasn’t “electronic surveillance” as defined by FISA. The bulk collection of Internet metadata, however, was both plainly “electronic surveillance” and also too broad to shoehorn into the language of the AUMF.
Comey, it would seem, wasn’t willing to countenance the legal gymnastics required to pretend otherwise.
This time, it's legal
Of course, we now know that after the hospital showdown, the
administration simply went to the FISA court and obtained a blanket “pen
register” order allowing the metadata collection to continue, this time
with legal cover (though the Court apparently imposed stricter limits
than the NSA’s own lawyers did).
This particular type of bulk Internet metadata collection was
reportedly halted in 2011. What the NSA is doing now instead is
anybody’s guess.
