How The U.S. Lost Its Home Field Surveillance Advantage

AUSTIN, TEXAS -- When the U.S. government talked in open congressional hearings about their "home field advantage" in monitoring worldwide communications, they weren't kidding. 

About 80% of the world's telecom traffic was handled by routers based in the United States before 2001.  After the program was revealed by the New York Times in 2005 and the government tacitly acknowledged that it had set up special technology to monitor the routers, the percentage of worldwide telecom traffic that the U.S. had immediate access to dropped dramatically, a technology expert who informally advises the government said today.

Kim Taipale, the executive director of the Center for Advanced Studies in Science and Technology Policy, told an audience at the University of Texas Law Review today that he estimated about 20 percent of worldwide traffic is now routed through the U.S.

Why? As soon as countries realized the extent to which the U.S. essentially controlled the traffic flow, they and their contractees built facilities overseas. Even U.S. telecoms, seeking to avoid surveillance requests from the U.S. government and potential lawsuits from consumers, began to move their capacity outside the U.S.

Therefore it is more difficult today the US to monitor purely foreign-to-foreign communications -- those outside the ambit of FISA.  The government probably has entered into classified agreements with foreign countries to place monitoring devices on international switches, but the capacity remains significantly diminished.

The decision to acknowledge the TSP -- even in a broad form -- made it more difficult for the National Security Agency to perform its charter functions, which includes the monitoring of foreign-to-foreign communications to help US policymakers make decisions about foreign policy and defense, a former senior intelligence official acknowledged. 

When FISA was born in 1977, it codified the NSA's ability to surveill the U.S.-based communications of people who aren't US persons, subject to certain restrictions. It was born in the wake of the Church Committee's investigation into illegal domestic spying by the NSA.

Of course, the TSP involved domestic warrant-less surveillance on communications to or from  people inside the U.S. outside the scope of what was allowed by the Foreign Intelligence Surveillance Act.  

The program was set up to allow the NSA to domestic monitor conversations involving U.S. persons without predicate -- and only in retrospect, would they have to justify the surveillance.   It was originally extraordinarily compartmented and its existence was kept from the members of the FISA court.

It has now been significantly and publicly modified, and codified into law, but precisely what and how the NSA monitors domestic communications remains largely a mystery.  Still, the difference between now and then is that Congress knows precisely what the NSA does and how it does it. 

"I think we;re in a better place now," said Benjamin Powell, a former general counsel for the Director of National Intelligence.  "You're not seeing articles in the press about the horrors of the NSA or the horrors of the FISA Act. I think the rules are there."

The current FISA regime, known as the FISA Amendment Acts, expires in 2012.