Figuring Out FISA - Part II - The Unitary Executive Strikes Back

This is the second in a series of posts called "Figuring out FISA":  My look into what the FISA Amendment Act of 2008 means and why the US Senate voted for it. 
The first two posts (part I available here)in this series are intended to provide back story and context for the actual vote.  While I've attempted to remain technically accurate to the history leading up to the Amendment Act of 2008, this post contains grotesque simplifications of the events of the last 8 years.  

If you want the details you'll need to become a full time history professor.  

When our story left off George the II and III had gotten their butts handed to them by a bunch of smugglers who had gone off, started their own country and made a law (4th amendment) that said NO SPYING on our citizens the way the Kings George did!

Our story picks up with George the 43rd. Of the 42 United States Presidents that preceded him, two others were named George. So technically we are dealing with another George the 3rd. It almost seems like the universe is screwing with us.  But I digress...

George the 43rd had a problem.  His country had just suffered an unprecedented attack. The year was 2001 and the term "smuggler" used by Kings George the II & III did not adequately describe the attackers, so George the 43rd call the them "Terrorists".

George wanted to put the screws to the terrorists, but he wasn't exactly sure who was a terrorist and who was a god-fearing-honest-tax-payer.  To add to his troubles communications technology had completely changed over the previous 30 years and his spying tools (a.k.a laws that let him use spying tools) had not kept up.  George needed some new tools.

The Right Tools
Back in the 1970s if you wanted to spy on someone, you physically put a tap on their phone line and checked their snail mail. The birth of the internet based communications made spying much harder. Wiretapping with old style taps didn't work on the Internet and by 2001 no-one really remembered what snail mail was. If you wanted to spy on someone in the Internet age (2001), you need a different set of tools then they used in the 70s.

The easiest way to spy on a bunch of people in 2001 is to collect all the communication that flows over large parts of the Internet, and then data-mine for what you want. Data mining is looking for patterns or specific words. For example, if you have reason to believe a group of terrorist are using the word “lollipop” as the name of their next target, then you data-mine (a.k.a search) for all the communications containing the word "lollipop". Computers make this very easy.
The problem with the "easy" method of spying is that it takes effort on the part of the spy to make sure they aren't spying on the wrong person.  In the “lollipop" example, the privacy of thousands of innocent candy crazed children is likely to be violated.

Solving George's Problem
This example of wire tapping is but one of dozens of the technical challenges to "legally" spying on people in the internet age and it was getting in George's way of putting the screws to the "terrorists". Faced with these technical challenges George did two things: 1) made some new laws and then 2) hired a bunch of bureaucrats to spy on everyone on the planet.

To make George's new spying measures legal he had his Attorney General draft a new set of laws, cumulatively called the PATRIOT act. The PATRIOT act has 7 large sections that expand the government's powers in different ways. The part that has to do with spying was Title II. Title II of the PATRIOT act made the "easy"  way of doing surveillance legal with one catch; the government is only allowed use these new tools/powers to investigate suspected terrorists.
Unfortunately while the PATRIOT Act restricted the government's spying to terrorism investigations our Congress didn't bother to put any enforcement or oversight mechanics in place.

The legisation was ripe for abuse and in what can only be described as a fear induced haze the US Congress overwhelmingly passed the PATRIOT act in October of 2001 with the provision that they would revisit the law in 4 years since they hadn't bothered to put any oversight in place.
Putting Their Decision in Perspective

The PATRIOT Act's enforcement mechanism is similar to telling a 3 year old not to look at candy and them leaving him alone in a candy shop for 4 years.  Our congress chose a path that any parent could tell you is both unlikely to work and also technically considered neglect.

The fact that the guy in charge of the United States Senate Committee responsible for Communication and the Internet Policy thinks that the internet is "A series of tubes" (it's worth reading his full rant) should be a dead give away that these people are not competent to write or vote on legislation that defines new technical solutions for spying.  Anyone that had the vaguest understanding of the technologies involved could have told you what would happen next.
The Unitary Executive Strikes Back

By 2005 George was aggressively trying to implement a Unitary Executive (See previous post.)  Many parts of his strategy including the PATRIOT Act succeeded, but in December of that year the New York Times exposed NSA wiretapping of US Citizens without warrants that had been going on since 2002. The president claimed he had the power to do the wiretapping because the country was at war.

The telecommunications companies (AT&T, Verizon, etc.) that had handed over US citizens information to the government were hit with a number of Civil Law Suits. These law suits were based on the argument that unless you bought into President George being King it was illegal to give him US citizen's private information.  Most people still didn't thing the president was King and lawyers were lining up to sue the telecoms.

Over the next two years George was embroiled in a battle royal to solidify his unitary-executive-status. He would do battle with the Congress, the press, the telecommunication companies and a boat load of lawyers trying to sue the telecoms.  Everyone had an angle but more and more, people stopped paying attention to George and his drive toward the unitary-executive as the focus moved to suing the Telecoms.

His reign as 43rd president was coming to a scheduled end but his drive to a unitary executive wasn't slowing.  Meanwhile, with the lawyers and the citizenry distracted by their assault on the telecoms, and the telecoms literally bribing the congress to get them off the hook, it appeared no resolution could be found.

The curtain falls for this final intermission with our cast in vicious conflict and George increasingly becoming a lame duck. To get this story to the end they would need a new lead actor, and this time his name would not be George.

Stay tuned for Part III - The Pride of Rube Goldberg

Update:  Part III - The Pride of Rube Goldberg is now online.