MONITORING EMAIL….The Protect America Act, which revises the FISA law, is partly designed to ensure that communications entirely outside the U.S. that happen to pass through a U.S. switch can be monitored without a warrant. Both Democrats and Republicans agree that this is fine. But the Washington Post reports today that assistant attorney general for national security Kenneth Wainstein put a slightly different spin on this at an ABA breakfast on Monday:
At the breakfast yesterday, Wainstein highlighted a different problem with the current FISA law than other administration officials have emphasized….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.
But if there’s no way to know in advance where the recipient of an email is going to be, then the Bush administration is basically asking for the ability to monitor all email communications that pass through a U.S. switch. And they interpret the text of PAA as giving them that authority. Right?