Ha! You beat me to it.
Kerr's analysis does not take into consideration the technology. The term "electronic surveillance" is defined as follows in FISA:
"Electronic surveillance" is defined in 50 U.S.C. 1801(f) to mean, in relevant part:
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;"
The technology used in the kind of surveillance I think does not require the targeting a specific United States person but is instead an electronic search for word patterns or for specific words in various languages that might be associated with terrorism, such as nitroglycerin, nuclear, bomb, explosion, etc., If that is the case, then there is no targeting, and the monitoring would be legal, though I don't know if this would be the case once the person receiving the communication is identified.
The surveillance might be of a type in which a communication between people in country X and country Y simply is routed as a normal business practice through the US. No problem there.
Because a "US person" is defined as a resident alien or a US citizen, it is also clear that if the targeted individual is here on a temporary visa, he can be specifically targeted for electronic surveillance.
Then there are the exceptions to the requirement of a court order. None is required if:
"A) the electronic surveillance is solely directed at--
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title; [and]
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party."
What is a substantial likelihood that the surveillance will not acquire the contents of any communication to which a United States person is a party? It looks to me that this standard was kept purposefully vague.
In any event, it seems that we know very little yet of the actual facts. The surveillance might be entirely legal for all we know. |
