As the Democrats prepare to fold on FISA, this week’s comments from Assistant AG for National Security Kenneth Wainstein suggest that what the White House is really after isn’t interception of foreign-to-foreign phone calls, but your email. From the Washington Post:

Wainstein highlighted a different problem with the current FISA law than other administration officials have emphasized. Director of National Intelligence Mike McConnell, for example, has repeatedly said FISA should be changed so no warrant is needed to tap a communication that took place entirely outside the United States but happened to pass through the United States….

[But] Wainstein said FISA’s current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States. The real concern, he said, is primarily e-mail, because “essentially you don’t know where the recipient is going to be” and so you would not know in advance whether the communication is entirely outside the United States.

“What this means, of course,” says Chris Soghoian, “is that while the public outcry has been focused on AT&T, it should have included a few other firms, including perhaps Microsoft, Yahoo and Google.” And, as well, the DOJ that allowed Republican fear-spouting like this to proliferate. Ryan Singel has more.