It's a popular meme on Republican sites to question whether FISA applied to the NSA wire taps, known to have occurred at ATT, Verizon, and other telcos. There's been quite a lot of dissembling on the subject coming from the RNC and its organs.

So, to clear this up, here are the basic facts everybody should know about it:

1) Q: What does FISA law apply to, and what does it require?

A: FISA requires that all domestic electronic surveillance require a warrant from a FISA court. Electronic surveillance is defined broadly, clearly as a catch all, and it certainly applies to all phone calls, emails, wired or wireless, and electronic communication. Surveillance is also defined broadly, as a catch all, referring to any mechanical, electronic, or other surveillance device.

FISA definition of electronic surveillance

(f) “Electronic surveillance” means—

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or

(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

2) Q: What was ATT and Verizon doing, did it require a FISA warrant, and was it illegal?

A: The best information we have is from the Electronic Frontier Foundation (EFF) a watchdog group and legal foundation. The EFF is prosecuting a case against ATT based on public information and a whistle-blower account of ATT's unwarranted wire tapping practices on behalf of the NSA.

EFF on NSA Spying

In 2005, Americans learned that the President authorized the National Security Agency (NSA) to wiretap phone and email communications involving United States persons within the U.S. without obtaining a warrant or court order pursuant to the Foreign Intelligence Surveillance Act of 1978 (FISA). FISA prohibits unauthorized electronic surveillance. Shortly afterwards Americans also learned that the major telecoms participated in warrantless surveillance surveillance, handing over billions of their customers private communications and communications records. EFF later developed specific, undisputed whistleblower evidence demonstrating AT&T's direct participation in the warrantless surveillance by diverting its customer communications to the NSA.

EFF believes the warrantless surveillance violates the Fourth Amendment, FISA, the Wiretap Act, and most likely the Electronic Communications Privacy Act. Moreover, it is neither authorized nor justified by the Constitutional power of the executive.

EFF filed the first case against a telecom arising from the warrantless surveillance, called Hepting v. AT&T. This page collects information about the Hepting case, as well as about the nearly 40 legal cases that have arisen from the warrantless surveillance currently pending in the Northern District of California courts.

In summary, yes FISA clearly states that all domestic electronic surveillance requires a FISA warrant.

ATT, Verizon, and others are known to have proceeded with electronic surveillance of billions of emails and phone calls via the installation of special hardware, on behalf of the NSA.

The NSA did not obtain FISA warrants for the electronic surveillance.

T-Mobile is one company known to have refused and demanded a FISA warrant. Verizon claims to have ceased since the scandal became public.

The electronic surveillance done by the NSA, and participating companies such as ATT and Verizon is illegal.

Many mistake Obama's methods for nice or naive. That's probably due to the Clinton machine and unfortunately many pundits have bought into it.

Pundits need to drop the superficial analysis of both candidates and get into real policy and tactical differences.

The way I see Obama's universal HC reform plan, it has nothing to do with being nice or naive. It could be described as checkmate in several moves while controlling the board. It's prosecuting a case where he knows the outcome and just needs to walk the jury there.

Obama does not plan to sit the insurance corporations down at a table and sweet talk them as for example Kevin Drum mistakenly asserts. His plan is to incrementally squeeze them through a series of popular legislative steps, while maintaining public support, and avoiding public backlash. It's not a love-in, it's a well orchestrated power play to get universal HC insurance.

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A critical issue to Health Care Reform is whether to use mandates to force voters to buy HC Insurance.

Mandates are currently the problem in Massachusetts, and a serious issue with Hillary's plan. Mass is a budding disaster on the level of "Leave No Child Behind." It's issued tens of thousands of waivers already due to popular pushback against the mandate. Some orthodox Dems don't want to discuss the problem. Many even bought into the strategy of mandates. But, it's a prime example of how mandating before people are ready, and without sufficient political clout to weather the backlash, is a foolish over reach, and jeopardizes the long term viability of the program.

Hillary's plan mandates from the start. It won't be able to build support or popularize the Gov Insurance program, or significantly fix the private sector, before mandating. In other words, it's a mandate before really establishing a popular option. That's a rather questionable strategy.

That plays to all the memes which get so much traction with moderates necessary to sustain HC reform, like "free market, big government, choice, and personal responsibility" memes. Basically all the high caliber Republican ammo.

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Obama's HC plan doesn't mandate.

He'll subsidize the poor and children from the start. That's a political winner with a Dem Congress, and will score popular support for the program. He'll offer voluntary buy-in to a Gov program, for those early adopters who are going to be the best sales people to the general public. Again, politically viable, and scoring points for the service to build momentum. He'll move to regulate the private sector to force them to end predatory practices and be more efficient. Again, a political winner. Importantly, he's avoiding political backlash which could unravel everything, by avoiding mandates which are politically radioactive. We don't need another failed program and status quo for another decade.

At every step he's building positive brand identity for his program, to expand it. At every step he's in a position of popular political strength, and the insurance companies in positions of political weakness. That's controlling the game and forcing the opponent into a corner.

He's left open the possibility for a mandate later, and has expressed commitment to universal care as the final outcome. But he would only mandate once it was actually viable politically.

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How will the Insurers respond to the Obama plan?

They'll lose customers to the HCI service Obama creates. They'll be under pressure. Their stock prices and profit margins will drop which will continually weaken them. They'll continually be forced to discuss issues of cost efficiency, bonuses, marketing, lobbying, profits, etc. which is a political loser for them. And when a GM, Google, or such buys into the Gov plan, it's be a nail in their coffin. They'll be forced simply by economic pressure to create new markets: i.e. supplemental insurance.

Which is the ultimate destination for them, to get them away from base coverage and into supplemental. They just have to be pushed, hard.

Will they fight? Sure, they'll fight any plan, Obama's or Hillary's.

But against Hillary's mandate they'll have far more ammo, and immediately counter attack against a fledgling program with it's own political problems. With Obama's plan they'll continually lose a battle of attrition against popular legislation.

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Obama's plan isn't naive or sweet. It's the surest way to win by controlling the political support and momentum.

It's Hillary's plan that's so questionable. Can she really just mandate now? Without the time to get the kinks out? Without building popular support for the Gov Program? Before seriously reforming the private insurance industry?

How will voters respond to being forced to either buy into private insurance they can't afford, or buy into a Gov Program they don't know?

Mandates only passed in Mass, and they're already in trouble there. Hillary wants to attempt that on a national scale.

Whose strategy is really superior, and whose is naive?

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Lastly, have the Clintons really learned from past failures? That's often presumed by them on the campaign trail, but where's the proof?

My feeling was always that NAFTA, the failure of 90's HC Reform, and other policy decisions were fundamentally due to their politics and whose counsel they take. Third Way and such. Has that really changed?

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Rather than sound bites about "experience" and "change" I hope people look seriously into these policies, political ideology, counsel, and the different strategies they pursue.