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As with the "1978 federal statute requiring court approval for domestic surveillance"
Read what President Carter had to say:
http://www.cnss.org/fisa.htm ftp://cnss.org/Carter.pdf
Its interesting how todays pundits, talking heads and NSA types seem to have missed the 'all', 'US persons' and 'electronic' part.
But never fear Mr or Ms NSA worker, the US gov will cover you by changing the definition of a US person to a domestic terrorist.
http://www.opencongress.org/bill/111-s3081/show
With the magic T word, all domestic US protections are off :)
Its like Tbilisi or Budapest in 1956 - everybody needs a telco tap and a drone.

However, the FISA laws do require a warrant to be procured within 72 hours, IIRC.

No all of them. there are provisions in which the administration could authorize a wire tap for up to one year and never obtain a warrant. These provisions is also where the problems come from.

The initial 'warrantless' tap is authorised as an 'emergency procedure' prior to getting the warrant, and information gathered from that tap is not allowed to be the basis if getting the wiretap.

No, one of the initial warrant-less taps followed how you remembered. That is also possible for non-FISA emergency taps too. However, With FISA, that was only in connection to US persons as defined by the law. Not all US citizens or people inside the US qualified as US persons. For foreign agents and foreign governments, a one year authorization without ever applying for or getting a warrant was always permissible as long as you take minimization precautions to ensure you do not tap US persons.

Now here is the provision that caused the problems for the Bush administration. This is the original 1978 FISA law which for out purposed, was essentially the same as in 2002 until the patriot and protect America acts amended it. When we look at the definitions of a US persons (subsection j) used by the law, we find that it covers almost anyone legally in the US and all companies incorporated in the US or unincorporated in which a substantial membership consist of US citizens. However, there is one exception, it denies the classification as a "United States Person" for the purpose of this law if any of the above is a corporation or association which is a foreign power as defined earlier in the law (subsection a (1)(2) or (3).

So we go back to the foreign power definition and see what is required to exempt someone from being a US person. We find that a foreign government or any part thereof whether the US recognizes it or not, a faction of a foreign nation or nations not composed substantially of United States Persons, and an entity that is openly acknowledged by a foreign government or government and to be directed and controlled by them.

Now, if you assume a foreign agent is a component of a foreign power, acting on the foreign power's direction, then we can see that a foreign agent (b 2 C and D) any person who knowingly engages in sabotage or international terrorism for a foreign power or activities in the preparation there of or anyone who knowingly aids and abets anyone or conspires with them in violation subparagraph A, B, and C.

Now whether this is legal or not is irrelevant because it sets the stage for the administration to issue wiretap orders for up to a year without ever needing a warrant. Now I'm not talking about if the administration was justified in their actions or not, but they definitely had the vehicle to order wiretaps without a warrant and the telecoms were compelled by law to assist. Section 102 says, notwithstanding any other law, the president through the attorney general may authorize electronic surveillance without a court order under this title to acquire foreign intelligence information for a period of up to one year if the AG certifies in writing under oath that: (it goes on to list several conditions, one of which is that no US person is party to).

Ok, now to wrap this up, the telecoms, if presented with a signed paper from the AG stating under oath that X, Y, and Z has happened, the telecoms are required to assist in the wiretaps and they can last up to a year before simply being renewed. We know that not all US citizens or people inside the US are considered US persons according to the law so it is extremely likely that the telecoms didn't know what they did was illegal until after the fact.

None of what I wrote means that Bush didn't violate the law, I'm not making excused for them. I can do that in a completely different way which makes FISA sor

Well, not exactly. The administration was required to get a FISA warrant, which they did not do. They could ask for the information legally, but they couldn't require it without a FISA warrant. And, the telekoms could not legally give it to them without a warrant.

I'm sorry but this is just wrong. There always have been ways to get legal wiretaps without warrants. FISA never even required a warrant for all wire taps, just certain ones. Even the 1968 wire tap laws has situations where warrants are not required. What is required in these situation are sworn statements signed by certain department heads or investigating officers claiming to have a legal right to the information being sought.

The original FISA law can be found here. (PDF warning)

On about the fourth page, under the section 102 of 50 USC 1802, you will find where the president thought the Attorney General can order wire taps without a warrant for up to one year. Current law has expanded this quite a bit.

As you can see, A warrant isn't always required.

That's the law and it was clear to the administration, the justicce department and to the telekoms, all of whom have sufficient legal advice.

Evidently not. As I just showed you, there always has been legal means to get wiretaps without warrants.

Problem is, the administration didn't feel they were required to follow the law by the simple declaration that we were at war and they said as much.

Yes, it is a problem for the administration. However, it isn't a problem for the telecoms because they were presented with the proper documentation for the wiretaps. You can tell this because the immunity law specifically require this documentation in order for the telecoms to receive any immunity. You can find the actual text of this here (pdf warning). You will find the provisions under title 8 which starts around the page 32.

True, but the scuttlebutt is that the government wanted to do something now covered by FISA (building social network graphs using pen traces, probably) and so the companies were presented with assurances but were not served proper court orders.

You didn't need court orders for all pen traps after 10-11-2001 and it. But the immunities to prosecution were already covered as pen a trap or trace devices were covered under the definition of "wire communication". Anyways, the telecoms would be immune because the original FISA law, including the patriot act versions said under title 18 sections 2511

(2)
(a)
(ii) Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with--

(A) a court order directing such assistance signed by the authorizing judge, or

(B) a certification in writing by a person specified in section 2518 (7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required,

setting forth the period of time during which the provision of the information, facilities, or technical assistance is authorized and specifying the information, facilities, or technical assistance required. No provider of wire or electronic communication service, officer, employee, or agent thereof, or landlord, custodian, or other specified person shall disclose the existence of any interception or surveillance or the device used to accomplish the interception or surveillance with respect to which the person has been furnished a court order or certification under this chapter, except as may otherwise be required by legal process and then only after prior notification to the Attorney General or to the principal prosecuting attorney of a State or any political subdivision of a State, as may be appropriate. Any such disclosure, shall render such person liable for the civil damages provided for in section 2520. ****No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, or agents, landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order, statutory authorization, or certification under this chapter.

You can find this in the original 1978 version of the FISA laws as well as the current laws.

So they acted on their own volition to impinge on their customers' civil rights and now they're getting called for it. But those who offered those assurances don't want to be dragged out into the light but the Telcos aren't going down without a fight.

Well, not necessarily... If the government presented them with the papers, they are in the clear and operated in no way other then their obligations under the law. It would then be the government who operated under the color of law which would leave them solely responsible. The color of law statutes however only provide immunity to officers and government officials if the order was a court order.

If the telecoms could simply present the paperwork, they would have the immunity the law provided before the immunity bill was passed. Sections 2520 provides for a complete defense against any civil or criminal law if

(d) Defense.-- A good faith reliance on--

omitted a lot for brevity. None of what I omitted alters the meaning of the parts I included.
The link "How Current Is This" led to a page which didn't tell me anything about the date of the original draft of the statute. I only saw two references to dates there, Jan 2, 2006 & Monday, November 3, 2008.

The how current is this isn't the link you want. That is the link to the last update on the page. You need to look at the notes section which will list all of the amendments to the law. Here is a PDF of the original 1978 law if you concerned about the accuracy of my claim.

Seconds, your right, it did prevent the government from spying on citizens which is also what I said, however, If you remember back to when it originally happened, they were attempting to claim that people talking to terrorists were foreign agents and got blasted down on that because the definition of foreign powers and foreign agents didn't include terrorists. Either way, it doesn't matter because the onus is not on the telecoms to ensure their targets are who the government claims they are. And it does present the position that the government, through an act of legislation, did create a situation that allowed taps to be ordered without a warrant. The government presents the authorization, the telecoms act on it, they get immunity and this was true well before any telecom immunity bill was ever voted on.

However, constantly insisting that laws were broken only shows that you've never put any thought or research into the position you've taken and exposes you for a fool that is probably best ignored.

I think that's a little unfair to say that. There is widespread opinion in the legal community that what the NSA is doing is illegal. For example Kate Martin of the Center of National Security Studies. Also don't forget Qwest turned down the government's request because their own internal lawyers thought it was illegal.

We won't know the "offical" legality of the program until SCOTUS makes some sort of decision on it. If that ever happens....

Since we have this notion of someone being "innocent until proven guilty," I can see why having a webcam on while someone is being *booked* can be a problem.

Actually, that's an especially good time for it. Arrests must be public. Yes, it's horribly embarrassing to be arrested, and I will feel ashamed if I am ever arrested, but secret arrests are tyrannical.

Your signature reads "The cure for 1984 is 1776." Well, why does the fourth amendment to the US constitution prohibit unreasonable seizures? It's because the british used arbitrary and secret arrests to lock up troublemakers (arguably they did so as well against the IRA). How can you have habeas corpus (or look here -- warning pdf) if you don't know who was arrested? (sorry, another pdf)

Once you've been convicted (or even once you're booked) it seems unreasonable though I agree with the poster who said he'd like it for his own protection!