National Surveillance Act of 2006: Comparison
I had downloaded the Discussion Draft of the National Surveillance Act of 2006 from a link in an article in Wired. The link pointed to one of Wired’s servers. I trust Wired as a news source; however, wished to get my hands on the primary document directly from the government.
I downloaded this version of the National Security Surveillance act of 2006 from the GPO. The link to the download was on this page of THOMAS.
There were differences between the documents, and I mistakenly thought that the Discussion Draft was an older version of the document. Later on I found the following from this page on THOMAS:
9/13/2006 Committee on the Judiciary. Reported by Senator Specter with an amendment in the nature of a substitute. Without written report.
This leads me to believe that the Discussion Draft was submitted as an ammendement with the purpose of replacing the previous version. I wanted to compare the two documents to see what had changed.
I worked for a few hours comparing the two. The largest problem was that the Discussion Draft has digital rights management that disallows copying. I would have to type out text in full from it. The version I obtained from the GPO was not encumbered in this way.
I started copying and typing everything out word-for-word starting with the findings at the beginning. This took too long and so I abandoned my previous attempt and began again and paraphrased instead. Turns out that the analysis was not very useful. The findings had been mainly rearranged.
Here is the paraphrased version that I had come up with. It is not all that useful, and I stopped short of finishing.
| Section | GPO Copy | Discussion Draft | |
| 1. Short Title | National Security Surveillance Act of 2006 | ______________ Act of 2006 | |
| 2. Findings | 1) | After September 11, 2001 President Bush authorized NSA to intercept communications between people in the United States, including citizens, and terrorism suspects overseas. |
No change |
| 2) | One of the lessons learned from September 11, 2001, is that enemies utilize technologies and techniques that defy conventional law enforcement practices. |
No Change | |
| 3) | Commander in Chief requires the ability to detect and track an enemey that an master and exploit modern technology. |
An account of how the FBI suspected that Zacarious Moussaoui was planning to hijack a plane. The FBI, according to Report of the 9/11 Commission 273-76 could not obtain traditional criminal warrant or one under FISA. |
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| 4) | Essential for President to have the means to protect us against enemies, but equally important to not compromise the civil liberties that the President seeks to safeguard. As Justice Hugo Black observed, ‘‘The President’s power, if any, to issue [an] order must stem either from an Act of Congress or from the Constitution itself.’’. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (opinion by Black, J.). |
President, as constitutional officer most directly responsible for protecting US from attack, requires ability and means to detect and track enemy that can amster and exploit modern technology. |
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| 5) | Sandra Day O’Connor, “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s Citizens Younston Sheet & Tube, 343 U.S., at 587, 72 S.Ct. 863. Whatever power the United States envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it must assuredly envision a role for all three branches when individual liberties are at stake.”. Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) |
Equally essential that in protecting US against our enemies, the President does not compromise very civil liberties he seeks to safeguard. As Justice Hugo Black observed, ‘‘The President’s power, if any, to issue [an] order must stem either from an Act of Congress or from the Constitution itself.’’. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (opinion by Black, J.). Sandra Day O’Connor, “We have long since made clear that a state of war |
I then decided to try a more useful method of analyzing this. I decided to use more columns. The idea was that in many cases the same language was used in different sections. I would try to match these sections so as to point out changes in the language, and not in the ordering.
I decided to compare the definitions in Section 3, Title VII. The definitions in this table are not paraphrased.
| Section | GPO Copy | Discussion Draft | ||
| Sec. 3. Definitions | ||||
| Title VII-Electronic Surveillance | ||||
| Sec. 701. Definitions | ||||
| (4) | ‘‘the term ‘electronic surveillance’ means the acquisition by an electronic, mechanical, or other surveillance device of the substance of any electronic communication sent by, received by, or intended to be received by a person who is in the United States, where there is a reasonable possibility that the surveillance will intercept communication in which a person in the United States participating in the communication has a reasonable expectation of privacy; |
(4) | “the term ‘electronic tracking‘ means the acquisition by an electronic, mechanical, or other surveillance device of the substance of any electronic communication sent by, received by, or intended to be received by a person who is reasonably believed to be in the United States, through the intentional targeting of that person’s communications, where a person in the United States has a reasonable expectation of privacy; |
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| (5) | ‘‘the term ‘electronic surveillance program’ means a program to engage in electronic surveillance; |
(5) | ‘‘the term ‘electronic surveillance program’ means a program to engage in electronic tracking; |
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| (5)(A) | “to gather foreign intelligence information or to protect against international terrorism or clandestine intelligence activities by obtaining the substance of or information regarding electronic communications sent by, received by, or intended to be received by a foreign power, an agent or agents of a foreign power, or a person or persons who have had communication with a foreign power seeking to commit an act of international terrorism or clandestine intelligence activities against the United States; |
“that has as a significant purpose the gathering of foreign intelligence information or protecting against international terrorism; |
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| (5)(C) | “where effective gathering of foreign intelligence information requires the flexibility to begin electronic surveillance immediately after learning of suspect activity; and |
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| (6) | “the term ‘foreign intelligence information’ has the same meaning as in section 101 and includes information necessary to protect against international terrorism; |
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| (9) | ‘‘the term ‘substance’ means any information concerning the words, purport, or meaning of a communication, and does not include information identifying the sender, origin, or recipient of the communication or the date or time of its transmission.’’. |
(10) | “the term ’substance’ means any information concerning the symbols, sounds, words, purport, or meaning of a communication, and does not include dialing, routing, addressing, or signalling.”. |
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| Sec. 4. Foreign Intelligence Surveillance Court Jurisdiction to Review Electronic Surveillance Programs |
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| Title VII of the Foreign Intelligence Surveillance Act of 1978, as amended by section 3, is amended by adding at the end the following: |
(a) | In General.–Title VII of the Foreign Intelligence Surveillance Act of 1978, as ammended by section 3, is ammended by adding at the end the following: |
I then began to get to the meat of it all, and saw that I would clearly have to begin paraphrasing once again.
| Section | GPO Copy | Discussion Draft | ||
| Sec. 4. Foreign Intelligence Surveillance Court Jurisdiction to Review Electronic Surveillance Programs |
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| Sec. 703 Foreign Intelligence Surveillance Court Jurisdiction to Review Electronic Surveillance Programs |
(a) | FISA court can issue order under this title lasting no longer than 45 days |
(a)(1) | FISA court can issue order under this title lasting no longer than 90 days |
| (b) | Reauthorization To continue an electronic surveillance program, Attorney General shall submit new application. No limit on the number of times Attorney General may seek approval. |
(a)(2) | Reauthorization FISA has jurisdiction to reauthorize an electronic surveillance program for a period of time not longer than such court determines to be reasonable. |
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| (c) | Modification and Appeal in Event Application is Denied
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(a)(3) | Resubmission or Appeal Attorney General may submit a new application. No limit on number of times. Attorney General may appeal decision to FISA Court of Review |
The analysis was simply taking too long. I never finished. At this point I was on around page 13 of a 41 page document. This was never going to work.
There is definitely a reason why we rely on the media to distill government information for us. They have the means to hire correspondents who study the government and have the skills and patience necessary to perform a comprehensive analysis.
Wired reports that this bill:
- Redefines surveillance so that only programs that catch the substance of a communication need oversight. Any government surveillance that captures, analyzes and stores patterns of communications such as phone records, or e-mail and website addresses, is no longer considered surveillance.
- Expands the section of law that allows the attorney general to authorize spying on foreign embassies, so long as there’s no “substantial likelihood” that an American’s communication would be captured.
- Repeals the provision of federal law that allows the government unfettered wiretapping and physical searches without warrants or notification for 15 days after a declaration of war. The lack of any congressional restraint on the president’s wartime powers arguably puts the president at the height, rather than the ebb, of his powers in any time of war, even an undeclared one.
- Repeals the provision of federal law that limits the government’s wartime powers to conduct warrantless wiretapping and physical searches to a period of 15 days after a declaration of war.
- Repeals the provision of federal law that puts a time limit on the government’s wartime powers to conduct warrantless wiretapping and physical searches against Americans. Under current law, the president has that power for only 15 days following a declaration of war.
- Allows the attorney general, or anyone he or she designates, to authorize widespread domestic spying, such as monitoring all instant-messaging systems in the country, so long as the government promises to delete anything not terrorism-related.
- Moves all court challenges to the NSA surveillance program to a secretive court in Washington, D.C., comprised of judges appointed by the Chief Justice of the Supreme Court. Only government lawyers would be allowed in the courtroom.
- Allows the government to get warrants for surveillance programs as a whole, instead of having to describe to a judge the particular persons to be monitored and the methods to be used.
There is no way that I could have done as good an analysis on this. Leave it to the experts, but try get the information from several independent experts if possible.