Former Justice Official Finds New Spy Proposal Legalizes Dragnet Domestic Spying

David Kris, a Associate Deputy Attorney General from 2000 to 2003 who first came to prominence following his biting analysis (.pdf) of the legality of the government's rationale (.pdf) for its warrantless wiretapping program, submitted to Congress a stunningly detailed reading (.pdf) of the government's proposal (.pdf) to update surveillance laws and shift power from courts to the executive branch.

Kris pays particular attention to how the law currently defines electronic surveillance (very confusingly see chart below) and how the proposed bill would change those definitions. Kris finds a problem in the definition of surveillance as only activity that is targeting a "particular, known" person.

The precise question is whether the government believes that proposed Subsection (1) excludes wide-ranging or "driftnet" surveillance, on the theory that the target of such surveillance is all persons (or a group of persons, or persons in general), rather than any "particular, known" person. If the government takes that position, its proposal (if enacted) would mean that a surveillance program like Operation Shamrock (ed. note. A famous domestic spying program where telegraph companies gave copies of every telegram to government) would be unregulated by FISA.

In all candor, I cannot believe the government will take that position.

Apologies to Kris, but I think that's exactly the point. It's exactly the position held by scholars such as Judge Richard Posner and Kim Taipale.

After the jump, two well presented graphs showing what is and isn't considered surveillance depending on the methods of communication, surveillance equipment location, the citizenship and geolocation of persons communicating, and expectations of privacy:

Current "electronic surveillance" definitions:

The test under the new proposal: