At that point, the FISCt got a chance to look at what was being offered up as targeting and minimization procedures under 702(d) and (e). At that point, if the court thought there were “deficiencies” which could be deficiencies under the statute OR deficiencies under the Fourth Amendment, the court could require by order corrections of those deficiencies. So when the second review came up, a part of a review of compliance with minimization and targeting procedures “allowed” as being “under the act” would include any corrections of deficiencies addressed by court order from the first certification.

Going to the story, and the reference both to law and orders, and the allegation that “N.S.A. was improperly capturing information involving significant amounts of American traffic” you have to wonder why they say “improperly” rather than the “accidentally” “inadvertently” and “unintentionally” that they use in other sections. That makes me wonder if a part of what happened is that the FISCt orders were blown off – bc that has already happened. Or that orders relating to post collection use were blown off, as well as possible statutory issues.

First, there’s the IG revelations about the Congressman, etc. That sounds like a leak made after a criminal referral didn’t get immediately considered, but that’s a total wildarsed guess. Also, keep in mind that by law should become public in three months.

Then there’s the stuff they found leading up to the review. NYT’s sources are largely intell officers (and Risen gets a byline here too). But note that four congressional committees are supposed to have been briefed on this report, which is a whole lot of people to know about something.

Feingold–speaking as he was to Kris on February 25 may or may not have gotten that briefing as of yet.

It strikes me that the general approach here ignores the difference between abstract policy, and technological realities. For example, I believe that the abstract policy enunciated by the law does not realistically take into account technological realities.

Let us assume for the moment (and I suspect this is true) that the basic technique involved in modern wiretapping, as it has been practiced for the past 8 years, involves “hoovering,” as you put it– i.e., vacuuming up everything– all communications of every kind– that pass through a given communications node during a specified period. The present law does not consider this possibility, and instead assumes an older surveillance model that presupposes specific communications carried by specific links. Modern technology with fiber optic cables, etc. can carry a vast river of communications that are sorted out at the end points. But in the middle all you get are millions of “packets” of information. Any particular email, for example, is transmitted not as a unit but as a series of packets– message segments. If you intercept this vast river, you get the proverbial haystack in which you may find needles.

You’ve heard all this before, but what I want to emphasize here is a lack of fit between the way the laws are written and the way the technology now works. In fact, I wonder if this is not the real issue holding up Judge Walker in his decisions.

Bob in HI