From Kevin Drum:
If I’m reading this right, the White House appears to be confirming that it believes the new law explicitly allows eavesdropping not just on foreigners talking to foreigners, but also on Americans talking to foreigners. All they have to do is claim that the real target is the foreigner and that a “significant purpose” of the eavesdropping is related to intelligence gathering. Not terrorism, mind you, just intelligence generically. What’s more, they don’t even have to go to the minimal trouble of making that claim to a court. They can just make it and approve it themselves.
So that’s that. The government is now legally allowed to monitor all your calls overseas with only the most minimal oversight.
I don’t even know what to say.
The Democratic bill…and this is critical…explicitly excluded (1) communications with a U.S. person inside the United States and (2) communications in which all participants are in the United States. Thus, the bill provided protections against domestic surveillance. For these types of calls, the government needed an old-fashioned warrant. (The Democratic bill’s carve-out provisions are in Sec. 105B(c)(1)(A).)
The White House bill (pdf) â€” soon to be law â€” took a much different approach. It just flatly withdrew all of this surveillance from the FISA regime. More specifically, the bill (Sec. 105A) states that any “surveillance directed at a person reasonably believed” to be outside the United States is completely exempt from FISA (i.e., it’s not considered “electronic surveillance”). [Marty] Lederman spells all this out very well and in more detail, but the upshot is virtually anything â€” including calls inside the United States or involving U.S. citizens â€” is fair game.