Can the government spy on foreign communications inside the United States?

Members of the House Intelligence Committee have been engaged in a boisterous debate the past few days over how to change the law that governs electronic surveillance. Republicans are calling for an overhaul backed by the Director of National Intelligence, and Democrats are pushing back, saying that the administration’s proposed changes would eliminate many of the current checks-and-balances on the intelligence agencies.

In the latest round, ranking member Pete Hoekstra (R-Mich.) took issue with Democrats’ position that the inelligence law does not need to be amended to allow monitoring of foreign persons who are not in the United States. At first glance, the Foreign Intelligence Surveillance Act would seem only to govern surveillance conducted on U.S. persons inside the United States. (That’s the Democrats’ contention, too.)

But the Republicans have a different view, which–if you closely read a letter Hoekstra sent yesterday to committee chairman Silvestre Reyes (D-Tx)–sheds more light on the particulars about how the government is conducting electronic surveillance.

“You claim that FISA does not require a court order for communications between foreign targets outside the United States. This does not fully or accurately state the law with respect to FISA, and your position would place intelligence community personnel at potential risk of criminal liability if they were to operate outside of FISA without clear legal authority.”

If they were to operate outside FISA without clear legal authority. How would intelligence community personnel operate outside FISA? Hoekstra explains:

“Not all of our intelligence is collected under the specific provision of law you mention, and in any event our personnel need clear and binding legal authority in order to obtain cooperation and to have full assurance that their activities are lawful.”

FISA isn’t the only provision that allows electronic surveillance. The president’s authorization of the National Security Agency’s warrantless surveillance program also allows it. In addition, Executive Order 12333 gives the intelligence agencies authorities to collect information inside the United States under specific circumstances. But key in on the last bit of Hoekstra’s comments: “in order to obtain cooperation and to have full assurance that their activities are lawful.”

Does Hoekstra mean cooperation from telecommunications companies? Quite possibly. Why is that important?

“Wiretapping” is no longer a matter of climbing up a telephone pole and putting a bug on the line. The government cannot intercept communications without access to telecom networks–i.e. “cooperation.”

The majority of the world’s telecom infrastructure is in the United States. We are a hub of global communications. Theoretically, a terrorist in Pakistan e-mailing another terrorist in Algeria could have his message routed through New Jersey. The Republicans seem to be arguing that, under FISA, intercepting that communication inside the United States violates the law, even though the parties to said e-mail reside in foreign countries. The question is, does it violate FISA to grab a “foreign” communication as it passes through our “domestic” infrastructure?

The telecom companies have asked for a a kind of legal immunity for cooperating with government surveillance. Congress has been debating that provision. Hokestra’s comments seem to reflect the companies’ anxiety that they might technically be violating FISA if they allow the government to intercept communications by foreign parties on equipment based in the United States.

We’ve seen threads of this theory before, and the debate is no secret. But the war of words between Democrats and Republicans over how to change FISA has been particularly hot this week. This latest salvo by Hokestra is a strong indication that this question over whether, or how, to allow surveillance of foreign persons “inside” the United States is a major sticking point in the FISA reform debate.