Ever since The New York Times broke the story that President Bush had directed the National Security Agency to bypass the Foreign Intelligence Surveillance Act for certain domestic monitoring duties, commentators and members of Congress have been batting the word "wiretap" around in a way that fundamentally muddies the waters.
If we're going to rationally debate FISA limits, we need to clarify the distinction between law enforcement wiretapping and broadband signals intelligence.
A wiretap is a specific monitoring program placed on a circuit-switched line of an individual person, or on a trunk group that may be part of a central office's domain of interest. It must be sought by state, local or federal officials through traditional wiretap requests. When national security interests involve the FBI, such requests typically must pass through the FISA Court, the special "star-chamber" surveillance court created in 1978.
Law enforcement agencies at every level were anxious to pass the Communications Assistance for Law Enforcement Act in 1996. Anticipating the unification of all communication over Internet Protocol, they wanted to monitor not only digital circuit-switched traffic but also traffic carried over IP flows through Internet service providers. Larger agencies like the FBI realized that wholesale monitoring of IP flows at Internet peering centers also would take law enforcement agencies closer to the NSA model, expanding their powers to monitor.
The NSA does not wiretap. The global electronic network it manages, nicknamed Echelon, comprises satellites, high-frequency direction-finding antennas and microwave interception dishes, located in orbit and in critical locations on the ground, in the sea and in the air. The network operates continuously, in real-time, collecting everything it can, but analyzing very little of what it collects.
When pundits talk of NSA domestic "collection," some may picture a magical force field surrounding this country, where all interception equipment is automatically shut down inside the borders. Not so. Domestic "broadband test" bases regularly scoop up communications as part of Echelon. The difference in the post-FISA era is that such information must never be stored, shared with law enforcement or used in other ways. By all accounts, the NSA has tried to abide by that.
President Bush, then, asked the agency to keep and analyze specific domestic-to-international communications that already could be collected no new bases, no new "wiretaps." While the always-on nature of Echelon could inspire some paranoia, concern can be tempered by understanding that the agency has had neither the storage capacity nor the human-analysis staff to examine more than a tiny percentage of the take.
Critics of Bush's specific actions should stop talking of wiretapping and propose specific limits to the way in which the NSA interacts with FISA and law enforcement agencies. Those who have failed to understand the nature of Echelon in the past may want to broaden the discussion to ask whether specific bases should be closed or frequency bands left free of monitoring but, of course, this represents far bigger fish to fry.
By Loring Wirbel (email@example.com), group editorial director for communications in CMP Media's Electronics Group