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August 11, 2007

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boris

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The following addresses cboldt’s “definition” of TSP.

As described in media reports, it appears that the Terrorist Surveillance Program (TSP) was specifically intended to address a particular aspect of the collateral intercept problem—that is, to authorize surveillance of collateral communications to and from the U.S. intercepted incidental to legitimate foreign surveillance activity without a FISA warrant even where FISA statutory requirements might otherwise be triggered (for example, where the interception was physically conducted at a U.S. switch thus triggering § 1801(f)(2)). According to official statements, the TSP authorized interception of international communications under presidential authority where one party to the communication was a legitimate target of foreign intelligence surveillance even if the other party was in the United States or a U.S. person. Such surveillance previously authorized under the TSP is now subject to the FISC orders:
[Attorney General’s letter] I am writing to inform you that on January 10, 2007, a Judge of the Foreign Intelligence Surveillance Court issued orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization.

Which is fairly close to cboldt’s claim except that TSP is the label applied to the collateral foreign-US communications that are incidental to legitimate collection of foreign-foreign communications. IOW it doesn’t “exclude” that category, rather it is a subsection of it, and hence distinct in that sense.

The AG letter also bolsters cboldt's court order claim.

boris

From Taipale’s http://foreign-intelligence.info/FISA-050107.pdf”>Statement to Senate Select Committee on Intelligence May 1, 2007

The FISC Orders of January 10, 2007

Details of the FISC orders issued January 10, 2007 (authorizing certain activities previously carried out pursuant to Presidential authority under the NSA Terrorist Surveillance Program) have not been publicly disclosed and the Justice Department has indicated that it is not prepared to release the orders to the public. Speculation about the nature of the FISC orders has included discussion of whether they take the form of “anticipatory warrants” that would authorize surveillance in the future if certain factual predicates were to occur (including, for example, a known terrorist communicating with a someone in the U.S.).

The Department of Justice has specifically denied, however, that these orders are “programmatic” in nature thus it is unlikely that they provide sufficient solution to the entirety of the problem of reconciling foreign signals intelligence activities with targeted domestic surveillance as discussed in these comments.

boris

Yet Another Scenario:

Arguendo: In order to acquire all available purely foreign communications of a foreign target (on US nodes) it is technically necessary to first acquire all communications of the target.

In Jan 2007 the admin and FISA court agree that accessing purely foreign communications of a foreign target on US nodes provides adequate reason to grant a court order for anticipatory warrants covering collateral or incidental acquisition of foreign-to-US communication.

In Apr 2007 Judge Fubar UNEXPECTEDLY declares accessing purely foreign communications of a foreign target on a US node is inadequate reason to grant a court order for anticipatory warrants. Or imposes an impractical level of documentation to implement renewal of the court order. Or Judge Fubar believed that the excuse of occasional collateral, incidental acquisition was being exploited to perform deliberate acquisition of foreign-to-US communications without adequate oversight. Or ... etc

boris

Sorry broken link ...

Taipale’s Statement to Senate Select Committee on Intelligence May 1, 2007

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