A few decades ago, the FBI regularly conducted "black-bag jobs" that involved sneaking into homes, hotel rooms and offices with the cooperation of the building's owner or even a neighbor with a spare key. Locks were picked otherwise.
Because no judge had authorized the FBI's black-bag job, they were incredibly illegal. In the mid-1970s, the Church Committee famously disclosed the bureau's clandestine operations.
Now President Bush is backing a bill that seems to encourage the FBI to revert to some of its old habits.
The FISA Amendments Act, approved by a Senate committee last week, seems to immunize people who cooperated with the FBI, the CIA, the National Security Agency--and other even more shadowy agencies--that conduct black-bag jobs.
Although most of the attention has focused on how the Senate bill might offer telecommunications service providers retroactive immunity (and derail the lawsuits against AT&T), the actual language appears to cover physical intrusions too:
ASSISTANCE--The term 'assistance' means the provision of, or the provision of access to, information... facilities, or another form of assistance
PERSON--The term 'person' means...a landlord, custodian, or other person who may be authorized and required to furnish assistance...
IN GENERAL--Notwithstanding any other provision of law, no civil action may lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed, if the Attorney General certifies to the court that...any assistance by that person was provided pursuant to a directive under sections 102(a)(4), 105B(e)...
ELEMENT OF THE INTELLIGENCE COMMUNITY--The term 'element of the intelligence community' means an element of the intelligence community as specified or designated under section 3(4) of the National Security Act... [Ed. Note: That includes the FBI, CIA, NSA, Homeland Security, the Defense Department, the Office of the Director of National Intelligence, the State Department, the Treasury Department, and any other agency the president chooses.]
Let's translate that. A hotel manager who lets FBI agents into a guest's room to copy a laptop's hard drive in secret would not be liable. An apartment manager who gives Homeland Security the key to a tenant's unit to place a key logger in a PC would not be liable. A private security firm that divulges a customer's alarm code would not be liable. A university that agrees to forward a student's e-mail messages to the Defense Department would not be liable. An antivirus company that helps the NSA implant spyware in an unsuspecting customer's computer would not be liable.
No court order is required. And if an eventual lawsuit accuses the hotel manager or antivirus firm of unlawful activities, it'll be thrown out of court as long as the attorney general or the director of national intelligence can provide a "certification." The "certification" is, of course, secret--all a judge may say publicly is that the rules were followed, and then dismiss the case.
The wording of 105B does seem to narrow this substantially. Enacted in August as part of the Protect Act, 105B says that non-judicial orders by the attorney general or director of national intelligence are limited to "information concerning persons reasonably believed to be outside the United States."
105B does require "minimization procedures," which would mean that any key loggers or spyware inserted in a black-bag job would supposedly be programmed to discard information about domestic-to-domestic communications.
Now, perhaps I've misread portions of the bill, but the Senate Intelligence Committee wasn't in the mood to answer questions about it on Monday, so we don't know its reasoning or explanation. There are other implications that are too far afield to get into now, such as whether FBI contractors breaking into telecommunications or software companies' offices (or computers) for surveillance-related purposes would be immunized as well.
One thing we do know, given the White House's flexible definition of "torture" and its legal legerdemain when it comes to NSA surveillance, is that this administration will find creative ways to stretch the law. If politicians are intent on enacting this law, one fix would be to narrow the bill's immunity to "telecommunications companies offering telephone or Internet service to the public." If providing legal cover for black-bag jobs isn't the goal, why not say so explicitly?