A.J. Strata earlier surmised that the procedures utilized in the NSA monitoring were not as described in the heated partisan fashion which characterized the New York Times' revelation. Today, he appears to be vindicated:
The Washington Post has vindicated my suspicions on the role of the NSA and FISA. David Ignatius has done his homework and concluded the NSA does international intel, and when they get a solid lead the pass it to FISA. Before FISA is involved, people in the US are under surveillance as contacts communicating with the 'targets' of the NSA surveillance:
The agency has used sophisticated algorithms to analyze patterns of communication so that it can focus on people who may be linked to al Qaeda and then, where appropriate, target its communications through FISA warrants or other procedures.
That's it folks. NSA detects a lead in the US and this is passed to FISA to make that contact a target of surveillance — all legal and proper. And what has these hair splitting leakers all upset?
To firmly set the NSA program within the law, Congress and the courts will have to think carefully about what's known in the signals intelligence world as 'meta—data.' These are the tags that identify the basic facts of a communication — time, date, to, from — but not its content. According to the Times and to other published reports, this routing information has been at the core of the NSA's new program.
The tricky legal question is whether a different privacy standard should apply to the meta—data that overlay the communication itself. The Supreme Court held in 1979, in Smith v. Maryland , that installing a device known as a 'pen register,' which records numbers dialed from a phone, was not a 'search' within the meaning of the Fourth Amendment, so no warrant was required. Congress later set a higher standard protecting the privacy of these pen registers, including those used in FISA surveillance. These issues would return in any debate about amending FISA.
Strata also brings the readers' attention to the vastly increased sale of disposable cell phones, some of which are likely to make the tracing of calls to terrorists more difficult, as reported by ABC News:
Federal agents have launched an investigation into a surge in the purchase of large quantities of disposable cell phones by individuals from the Middle East and Pakistan, ABC News has learned.
The phones — which do not require purchasers to sign a contract or have a credit card — have many legitimate uses, and are popular with people who have bad credit or for use as emergency phones tucked away in glove compartments or tackle boxes. But since they can be difficult or impossible to track, law enforcement officials say the phones are widely used by criminal gangs and terrorists.
"There's very little audit trail assigned to this phone. One can walk in, purchase it in cash, you don't have to put down a credit card, buy any amount of minutes to it, and you don't, frankly, know who bought this," said Jack Cloonan, a former FBI official who is now an ABC News consultant.
Law enforcement officials say the phones were used to detonate the bombs terrorists used in the Madrid train attacks in March 2004.
"The application of prepaid phones for nefarious reasons, is really widespread. For example, the terrorists in Madrid used prepaid phones to detonate the bombs in the subway trains that killed more than 200 people," said Roger Entner, a communications consultant.
The jump in disposable cell phone sales after the NYT's leak may just be a coincidence, but he doesn't think so and neither do I.
Clarice Feldman 1 13 06