Toe Knee Flip-Flops on the FISA Issue

I've talked a bunch about the FISA amendments these past few months and my words haven't been complimentary, I've said that it's a huge blow for civil liberties and it compromises the rule of law.  I've shouted from the rooftop of my blog that it is bad bad bad bad bad.  An evil tool created by and for an evil administration that has spikes and barbs and stuff and will inevitably be inserted up whichever orifice the American people would still like to save for that special someone.

So today I stand not on the roof, but in more of a back-room office of my blog to mumble away that I might have been a bit overzealous in my condemnation of the FISA amendments…
I know what you're thinking, but the world is not ending.  The final prophecy of Nostradamus has not come to pass and dogs and cats are not sleeping together.  Don't panic yet.  I will explain the reasons for my change of heart.
Late in the evening two nights ago I came across a FISA post by a very bright Voxer who calls himself Brons.  He did an admirable job of interpreting the bill and what it means and is supposed to do.  He also did it from a staunchly Libertarian standpoint, which is the only stance at all that I would have accepted as valid on this issue.  He like me was opposed to the bill on the principle that it violated American liberties, however unlike me he had the ability to interpret the text of the bill and construct a far-more informed opinion based upon the facts he uncovered.
It's a long read and it's a very very complicated issue that attempting to summarize honestly sounds like feeble minded bullshit spouted from the mouths of one of America's chief propaganda artists, but I will do my very best.
What the bill attempts to do is bring the surveillance laws up to the technology level that we now live in.
Yes, again I know what you're thinking… that's pretty much what Bush said, and we all know Bush is a big fat liar so why am I quoting him?  Well… enough monkeys on enough typewriters… let's just say that Bush says a lot of things and chaos theory dictates that at some point, something he says might be correct when interpreted in a certain way.  If it makes you feel any better I think he might have meant to say something else.
But back to FISA.  FISA is essentially a bill that creates a group of judges who sign warrants to spy.  Now Americans are protected from unlawful spying by their constitution, warrants are issued to make that spying lawful, just like a cop has to obtain a warrant before he can search your home.  This is no different.  
Non-americans aren't protected by the American constitution, and therefore they can be spied on without the same legal issues and are only limited by the policies their boss sets down, certain international laws and treaties and what sort of a budget the accountants allot. Thus spying on non-American citizens outside the USA doesn't need a warrant unless it violates some sort of treaty.
Where it gets fuzzy is when you're talking about non-Americans on US soil, or a non-American talking to an American etc…
Here's the technological bit.  Digital communication isn't just one bunch of data sliding along a wire until it reaches it's destination, it travels through a multitude of servers, and routers to get where it's going.  Sometimes data between two foreign persons communicating in a foreign country will make pitt stops in routers and servers on United States soil.  This previously meant that even though the data was clearly outside of the jurisdiction of Constitutional protection, because it was being obtained from a server owned by a company that was US based that a FISA warrant still had to be obtained.  That as you can imagine likely bogged down the process some.  
What the new amendments are meant to do are to consider the sources that information is originating from to determine the need for a FISA warrant, rather than the source it is obtained from to determine whether or not a warrant is needed.  If a US citizen is involved, then constitution protects them and warrant is needed, if one of the points where the communication originated from is on US soil, then get a warrant… however if two people are talking on their cell-phones in Afghanistan and their cell phone conversation is routed through servers belonging to AT&T in Seattle, then if those people are for whatever reason persons that the US needs to spy upon, then the data can be grabbed from the Seattle server with the same legal ease that a field agent would have had in installing a wire-tap between their point-to-point communications back in the 60's.
That's the jist of it.  Now, the bill does specifically state that when issuing warrants to surveil US citizens that the 4th Amendment rights must be obeyed, and that the information gained must have certain safeguards to protect American's rights… however these statements have yet to be tested in the courts.  
THAT boys and girls, means that our interpretations are just interpretations and will only be proven wrong or right once the courts start making legal rulings and setting precedents based on what the judges' interpretation of this law are.  It is then we  will see how much weight these protections have.
So after that attempt at explaining things better, what really matters most of course is my opinion.  What FISA looks like to me is just a tool, a hammer with a new nob on it that will hopefully work a bit better in some situations.  That hammer is not necessarily evil, and parts of the constitution have not been melted down to be used in it's construction.  However the way that hammer will be used still remains to be seen.  If the administration is corrupt – and for the last while it has been – then we can expect this tool to be used in many unsavory ways.  However it doesn't necessarily compromise the rule of law by it's very existence.

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About Helmsman

Importing a Vox Blog.
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