Intelligence Surveillance & Privacy

Not Especially "Edgy" and Not a "Secret New Power"

David Kris
Tuesday, November 10, 2015, 10:27 AM

The foreign-to-foreign communications exemption to FISA is not especially "edgy" and not especially "secret."

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I haven’t read Charlie Savage’s new book, Power Wars, but I did read Bobby’s recent post and the sections of Power Wars Bobby quotes, in which Charlie says that an interpretation of traditional FISA to exempt foreign-to-foreign communications from U.S.-based switches was “edgy” and a “secret new power to employ a form of warrantless surveillance on domestic soil ....”

I have to agree with Bobby:  if this was a secret, it was not particularly well-kept (and the explanation is rather dull).  Chapter 7 of National Security Investigations and Prosecutions, the treatise I co-wrote with Doug Wilson and first published in 2007, explained quite explicitly that one of the four main “limits” to FISA’s reach is that

the statute does not apply where all parties to a wire or radio communication are located abroad.  Such purely foreign communications are simply beyond FISA’s ambit.  That is the case regardless of the type of communication (wire or radio), the type of acquisition, the location of acquisition (inside or outside the U.S.), the parties’ status as U.S. persons or targets, and any person’s expectation of privacy.  That is because Subsections (1)–(3) [of the definition of “electronic surveillance” in 50 USC 1801(f)] each require at least one party to a communication to be located in the United States, and Subsection (4) does not apply to wire or radio communications.  As discussed below (Sections 7:24 to 7:26), this limit does not apply to the acquisition in the United States of stored e-mail, which may be “electronic surveillance” under Subsection (4) regardless of the location of the sender and recipients.

NSIP § 7:17 (1st ed. 2007) (footnotes omitted).

The 2007 edition quoted public testimony in the Senate Judiciary Committee from General Michael Hayden, the former Director of NSA, who explained in 2006 that

geography is becoming less relevant.  In the age of the Internet and a global communications grid that routes communications by the cheapest available bandwidth available each nanosecond, should our statutes presume that all communications that touch America should be equally protected?  As the Chairman noted earlier this week, we do not limit our liberties by exempting from FISA’s jurisdiction communications between two persons overseas that gets routed through US facilities.

The second edition of the book, published in 2012, went back to the congressional hearings leading to enactment of FISA in 1978, and made similar points about the limited scope of the statute. Thus, for example, the second edition cites public testimony from the Secretary of Defense and the General Counsel of DOD in 1977 as follows:

[Secretary of Defense Harold] Brown explained that “many of these channels of communication [that the government monitors] are used by a great many people,” and so “it cannot be said in advance who the individuals are.”  In other words, as the Defense Department’s general counsel put it, “[t]his is intended to get at a problem that we have with bulk communications. . . . Those are communications which are not simply from one person to another person or one entity to another entity, but they include large numbers of communications and large numbers of subjects.


NSIP § 16:5 (2d ed. 2012).

I’m sure Power Wars is both entertaining and informative, but I think Bobby is right about its account of this particular topic.

UPDATE: Charlie Savage responds:

There is a misunderstanding. The language you are seizing on comes not in a description of transit authority today, but in a historical account of how Reagan administration officials secretly invented it in 1988 and why they decided they needed a special memo from the president (and each successor) saying he knew of and approved of their interpretation and activities based on that interpretation. So your invocation of what people were saying about it by 2006 and 2007, after the TSP declassification and amid the PAA debate, is not on point. See pages 173-177.

Further to that end, I think you misread Bobby. He was not questioning that there was internal uneasiness, but rather rhetorically asking why there were concerns in light of the fact that FISA and the Fourth Amendment did not apply - and answering his question: "No doubt it was the domestic locus of the activity that caused the concern."

David Kris is a founder of Culper Partners, with more than 30 years of experience in the private sector, government, and academia. He has been a corporate director, general counsel, deputy general counsel, and chief compliance officer; assistant attorney general for national security, associate deputy attorney general, and a trial attorney at the Justice Department. He serves on advisory boards for several government agencies and as a FISA Court amicus curiae. He is the author or co-author of several works on national security and teaches national security law. He is a member of the board of directors of Lawfare.

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