Legal Commentary

FISA and Your E-Mail

By Jeralyn

A FISA compromise is in the works. At a meeting yesterday, sponsored by the American Bar Association, Kenneth Wainstein, assistant attorney general for national security, pointed out something that hasn't gotten wide attention: Foreign to foreign doesn't really mean that when it comes to e-mail.

At the breakfast yesterday, Wainstein highlighted a different problem with the current FISA law than other administration officials have emphasized. Director of National Intelligence Mike McConnell, for example, has repeatedly said FISA should be changed so no warrant is needed to tap a communication that took place entirely outside the United States but happened to pass through the United States.

But in response to a question at the meeting by David Kris, a former federal prosecutor and a FISA expert, Wainstein said FISA's current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States. The real concern, he said, is primarily e-mail, because "essentially you don't know where the recipient is going to be" and so you would not know in advance whether the communication is entirely outside the United States.

Corrente Wire has more. And Raw Story reports the FBI wants the telecoms to get immunity even if they acted in bad faith.

Full post as published by TalkLeft on March 05, 2008 (boomark / email).