Foreign Intelligence
Surveillance Act
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encyclopedia
"FISA"
redirects here. For other uses, see FISA (disambiguation).
Foreign Intelligence Surveillance Act of 1978
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Long title
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An Act to authorize electronic surveillance to obtain foreign
intelligence information.
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Colloquial acronym(s)
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FISA
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Enacted by the
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Effective
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October 25, 1978
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Citations
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Public Law
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Codification
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Title(s) amended
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U.S.C. sections
created
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Chapter 36 § 1801 et seq.
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Passed the House on September 7, 1978 (246-128)
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Reported by the joint conference committee onOctober 5, 1978; agreed to by the
Senate on October 9, 1978 (Without objection) and by the
House onOctober 12, 1978 (226-176)
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Major amendments
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v
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The Foreign
Intelligence Surveillance Act of 1978 ("FISA" Pub.L. 95–511, 92 Stat. 1783, 50
U.S.C. ch. 36) is a United States law which
prescribes procedures for the physical and electronic surveillance and collection of
"foreign intelligence information" between "foreign powers"
and "agents of foreign powers" (which may include American citizens
and permanent residents suspected
of espionage or terrorism).[1] The law does not apply outside
the United States. The law has been repeatedly amended since the September 11 attacks.
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Contents
The Act was amended in 2001
by the USA PATRIOT Act,
primarily to include terrorism on behalf of groups that are not specifically
backed by a foreign government.
An overhaul of the bill,
the Protect America
Act of 2007 was signed into law on August 5, 2007.[2] It expired on February 17,
2008.
The FISA Amendments
Act of 2008 passed by the United States
Congress on July 9, 2008.[3]
The Foreign Intelligence
Surveillance Act (FISA) was introduced on May 18, 1977, by Senator Ted Kennedy and was signed into law by
President Carter in 1978. The bill was cosponsored by nine Senators: Birch Bayh, James O. Eastland, Jake Garn,Walter Huddleston, Daniel Inouye, Charles Mathias, John L. McClellan, Gaylord Nelson, and Strom Thurmond.
The FISA resulted from
extensive investigations by Senate Committees into
the legality of domestic intelligence activities.
These investigations were led separately by Sam Ervin and Frank Church in 1978 as a response to
President Richard Nixon’s
usage of federal resources to spy on political and activist groups, which
violates the Fourth
Amendment.[4] The act was created to provide
Judicial and congressional oversight of the government's covert surveillance
activities of foreign entities and individuals in the United States, while
maintaining the secrecy needed to protect national security. It allowed surveillance,
without court order, within
the United States for up to one year unless the "surveillance will acquire
the contents of any communication to which a United States person is a
party". If a United States person is involved, judicial authorization was
required within 72 hours after surveillance begins.
Main
article: NSA
warrantless surveillance controversy
The Act came into public
prominence in December 2005 following publication by the New York Times of an article[5] that described a program of warrantless
domestic wiretappingordered by the Bush administration and carried
out by the National Security
Agency since 2002; a subsequent Bloomberg article[6] suggested that this may have
already begun by June 2000.
For most purposes,
including electronic surveillance and physical searches, "foreign
powers" means a foreign government, any faction(s) or foreign governments
not substantially composed of U.S. persons, and any entity directed or
controlled by a foreign government. §§1801(a)(1)-(3) The definition also
includes groups engaged in international terrorism and foreign political
organizations. §§1801(a)(4) and (5). The sections of FISA authorizing
electronic surveillance and physical searches without a court order
specifically exclude their application to groups engaged in international
terrorism. See §1802(a)(1) (referring specifically to
§1801(a)(1), (2), and (3)).
The statute includes limits
on how it may be applied to U.S. persons. A "U.S. person" includes
citizens, lawfully admitted permanent resident aliens, and corporations
incorporated in the United States.
The code defines
"foreign intelligence information" to mean information necessary to
protect the United States against actual or potential grave attack, sabotage or international
terrorism.[7]
In sum, a significant
purpose of the electronic surveillance must be to obtain intelligence in the
United States on foreign powers (such as enemy agents or spies) or individuals
connected to international terrorist groups. To use FISA, the government must show
probable cause that the “target of the surveillance is a foreign power or agent
of a foreign power.”[4][8]
The subchapters of FISA
provide for:
·
Electronic surveillance (50
U.S.C. ch. 36, subch. I)
·
Physical searches (50
U.S.C. ch. 36, subch. II)
·
Pen registers and
trap & trace devices for foreign intelligence purposes (50
U.S.C. ch. 36, subch. III)
·
Access to certain business records for foreign intelligence
purposes (50
U.S.C. ch. 36, subch. IV)
·
Reporting requirement (50
U.S.C. ch. 36, subch. V)
The act created a court
which meets in secret, and approves or denies requests for search warrants. Only the number of warrants
applied for, issued and denied, is reported. In 1980 (the first full year after
its inception), it approved 322 warrants.[9] This number has steadily grown
to 2,224 warrants in 2006.[10] In the period 1979–2006 a
total of 22,990 applications for warrants were made to the Court of which
22,985 were approved (sometimes with modifications; or with the splitting up,
or combining together, of warrants for legal purposes), and only 5 were definitively
rejected.[11]
Generally, the statute
permits electronic surveillance in two scenarios.
The President may
authorize, through the Attorney General, electronic surveillance
without a court order for the period of one year provided it is only for
foreign intelligence information;[7] targeting foreign powers as
defined by 50 U.S.C. § 1801(a)(1),(2),(3)[12] or their agents; and there is
no substantial likelihood that the surveillance will acquire the contents of
any communication to which a United States person is
a party.[13]
The Attorney General is
required to make a certification of these conditions under seal to the Foreign
Intelligence Surveillance Court,[14] and report on their compliance
to the House Permanent Select Committee on Intelligence and
the Senate
Select Committee on Intelligence.[15]
Since 50
U.S.C. § 1801(a)(1)(A) of this act specifically
limits warrantless surveillance to foreign powers as defined by 50 U.S.C.
§1801(a) (1),(2), (3) and omits the definitions contained in 50 U.S.C. §1801(a)
(4),(5),(6) the act does not authorize the use of warrantless surveillance on:
groups engaged in international terrorism or activities in preparation
therefore; foreign-based political organizations, not substantially composed of
United States persons; or entities that are directed and controlled by a
foreign government or governments.[16] Under the FISA act, anyone who
engages in electronic surveillance except as authorized by statute is subject
to both criminal penalties[17] and civil liabilities.[18]
Under 50 U.S.C. § 1811, the
President may also authorize warrantless surveillance at the beginning of a
war. Specifically, he may authorize such surveillance "for a period not to
exceed fifteen calendar days following a declaration of war by the
Congress".[19]
Alternatively, the
government may seek a court order permitting the surveillance using the FISA
court.[20] Approval of a FISA application
requires the court find probable cause that the target of the
surveillance be a "foreign power" or an "agent of a foreign
power", and that the places at which surveillance is requested is used or
will be used by that foreign power or its agent. In addition, the court must find
that the proposed surveillance meet certain "minimization
requirements" for information pertaining to U.S. persons.[21]
In addition to electronic
surveillance, FISA permits the "physical search" of the
"premises, information, material, or property used exclusively by" a
foreign power. The requirements and procedures are nearly identical to those
for electronic surveillance.
Main
article: United States Foreign Intelligence Surveillance Court
The Act created the Foreign
Intelligence Surveillance Court (FISC) and enabled it to
oversee requests for surveillance warrants by federal police agencies
(primarily the F.B.I.)
against suspected foreign intelligence agents inside the U.S. The
court is located within the Department of Justice headquarters building. The
court is staffed by eleven judges appointed by the Chief
Justice of the United States to serve seven-year terms.
Proceedings before the FISA
court are ex parte and
non-adversarial. The court hears evidence presented solely by the Department
of Justice. There is no provision for a release of information
regarding such hearings, or for the record of information actually collected.
Denials of FISA
applications by the FISC may be appealed to the Foreign Intelligence Surveillance Court of Review.
The Court of Review is a three judge panel. Since its creation, the court has
come into session twice: in 2002 and 2008.
Both the subchapters
covering physical searches and electronic surveillance provide for criminal and
civil liability for violations of FISA.
Criminal sanctions follows
violations of electronic surveillance by intentionally engaging in electronic
surveillance under the color of law or
through disclosing information known to have been obtained through unauthorized
surveillance. The penalties for either act are fines up to US$10,000, up to
five years in jail, or both.[17]
In addition, the statute
creates a cause of action for
private individuals whose communications were unlawfully monitored. The statute
permits actual damages of not less
than $1,000 or $100 per day. In addition, that statute authorizes punitive damages and an award of attorney's fees.[18] Similar liability is found
under the subchapter pertaining to physical searches. In both cases, the
statute creates an affirmative defense for
a law enforcement agent acting within their official duties and pursuant to a
valid court order. Presumably, such a defense is not available to those
operating exclusively under presidential authorization.
In 2004 FISA was amended to
include a "lone wolf" provision. 50
U.S.C. § 1801(b)(1)(C). A "lone wolf"
is a non-U.S. person who engages in or prepares for international terrorism.
The provision amended the definition of "foreign power" to permit the
FISA courts to issue surveillance and physical search orders without having to
find a connection between the "lone wolf" and a foreign government or
terrorist group. However, "if the court authorizes such a surveillance or
physical search using this new definition of 'agent of a foreign power', the
FISC judge has to find, in pertinent part, that, based upon the information
provided by the applicant for the order, the target had engaged in or was
engaging in international terrorism or activities in preparation
therefor".[22]
In 1967 the Supreme
Court of the United States held that the requirements of the Fourth Amendment applied equally to
electronic surveillance and to physical searches. Katz v. United States,
389 U.S. 347 (1967). The Court did not address whether such requirements apply
to issues of national security.
Shortly after, in 1972, the Court took up the issue again in United
States v. United States District Court, Plamondon, where the
court held that court approval was required in order for the domestic
surveillance to satisfy the Fourth Amendment. 407 U.S. 297 (1972). Justice Powell wrote
that the decision did not address this issue that "may be involved with
respect to activities of foreign powers or their agents".
In the time immediately
preceding FISA, a number of courts squarely addressed the issue of
"warrantless wiretaps". In both United States v. Brown,
484 F.2d 418 (5th Cir. 1973), and United States v. Butenko, 494
F.2d 593 (3rd Cir. 1974), the courts upheld warrantless wiretaps. In Brown,
a U.S. citizen's conversation was captured by a wiretap authorized by the
Attorney General for foreign intelligence purposes. In Butenko, the
court held a wiretap valid if the primary purpose was for gathering foreign
intelligence information.
A plurality opinion in Zweibon
v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975), held that a warrant was
required for the domestic surveillance of a domestic organization. In this
case, the court found that the domestic organization was not a "foreign
power or their agent", and "absent exigent circumstances, all
warrantless electronic surveillance is unreasonable and therefore
unconstitutional."
There have been very few
cases involving the constitutionality of
FISA. In two lower court decisions, the courts found FISA constitutional. In
the United States v. Duggan, thedefendants were members of the Irish Republican Army.
743 F.2d 59 (2nd Cir., 1984). They were convicted for various violations
regarding the shipment of explosives and firearms. The court held that there were
compelling considerations of national security in the distinction between the
treatment of U.S. citizens and non-resident aliens.
In the United States
v. Nicholson, the defendant moved to suppress all evidence gathered under a FISA order. 955
F.Supp. 588 (Va. 1997). The court affirmed the denial of the motion. There the
court flatly rejected claims that FISA violated Due process clause of
the Fifth Amendment, Equal protection, Separation of powers,
nor the Right to counselprovided
by the Sixth Amendment.
However, in a third case,
the special review court for FISA, the equivalent of a Circuit Court of
Appeals, opined differently should FISA limit the President's inherent
authority for warrantless searches in the foreign intelligence area. In In
re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002)
the special court stated “[A]ll the other courts to have decided the issue
[have] held that the President did have inherent authority to conduct
warrantless searches to obtain foreign intelligence information . . . . We take
for granted that the President does have that authority and, assuming that is
so, FISA could not encroach on the President's constitutional power.”
K. A. Taipale of the World Policy
Institute, James Jay Carafano of the Heritage Foundation,[23] and Philip Bobbitt of Columbia
Law School,[24] among others,[25] have argued that FISA may need
to be amended (to include, among other things, procedures for programmatic
approvals) as it may no longer be adequate to address certain foreign
intelligence needs and technology developments, including: the transition from circuit-based communications to packet-based communications; the globalization of communicationsinfrastructure; and the
development of automated monitoring techniques, including data mining and traffic analysis.[26]
The need for programmatic
approval of technology-enabled surveillance programs is particularly crucial in
foreign intelligence. See, for example, John R. Schmidt, the associate attorney
general (1994–1997) in the Justice Department under President Bill Clinton,[27] recalling early arguments made
by then-Attorney General Edward Levi to
the Church Committee that
foreign intelligence surveillance legislation should include provisions for
programmatically authorizing surveillance programs because of the particular
needs of foreign intelligence where "virtually continuous surveillance,
which by its nature does not have specifically predetermined targets" may
be required. In these situations, "the efficiency of a warrant requirement
would be minimal."
And, in a 2006 essay, Judge Richard Posner opined that FISA
"retains value as a framework for monitoring the communications of known
terrorists, but it is hopeless as a framework for detecting terrorists. [FISA]
requires that surveillance be conducted pursuant to warrants based on probable
cause to believe that the target of surveillance is a terrorist, when the
desperate need is to find out who is a terrorist."[28]
On March 16, 2006, Senators Mike DeWine (R-OH), Lindsey Graham (R-SC), Chuck Hagel (R-NE), and Olympia Snowe (R-ME) introduced the
Terrorist Surveillance Act of 2006 (S.2455),[29][30] under which the President
would be given certain additional limited statutory authority to conduct
electronic surveillance of suspected terrorists in the United States subject to
enhanced Congressional oversight. Also on March 16, 2006, Senator Arlen Specter (R-PA) introduced the National
Security Surveillance Act of 2006 (S. 2453),[31][32]which would amend FISA to grant
retroactive amnesty[33] for warrantless surveillance
conducted under presidential authority and provide FISA court (FISC)
jurisdiction to review, authorize, and oversight "electronic surveillance
programs". On May 24, 2006, Senator Specter and Senator Dianne Feinstein (D-CA) introduced the Foreign Intelligence Surveillance Improvement and
Enhancement Act of 2006 (S. 3001) asserting FISA as the exclusive means
to conduct foreign intelligence surveillance.
All three competing bills
were the subject of Judiciary Committee hearings throughout the summer.[34] On September 13, 2006, the
Senate Judiciary Committee voted to approve all three mutually exclusive bills,
thus, leaving it to the full Senate to resolve.[35]
On July 18, 2006, U.S.
Representative Heather Wilson (R-NM)
introduced the Electronic
Surveillance Modernization Act (H.R. 5825). Wilson's bill would give the
President the authority to authorize electronic surveillance of international
phone calls and e-mail linked specifically to identified terrorist groups
immediately following or in anticipation of an armed or terrorist attack on the
United States. Surveillance beyond the initial authorized period would require
a FISA warrant or a presidential certification to Congress. On September 28,
2006 the House of Representatives passed Wilson's bill and it was referred to
the Senate.[36]
Main
article: Protect America Act
On July 28, 2007, President
Bush called on Congress to pass legislation to reform the FISA in order to ease
restrictions on surveillance of terrorist suspects where one party (or both
parties) to the communication are located overseas. He asked that Congress pass
the legislation before its August 2007 recess. On August 3, 2007, the Senate
passed a Republican-sponsored version of FISA (S.
1927) in a vote of 60 to 28. The House followed by passing the bill,
227–183. The Protect America
Act of 2007 (Pub.L. 110–55, S. 1927) was then signed into law by George W. Bush on 2007-08-05.[37]
Under the Protect America
Act of 2007, communications that begin or end in a foreign country may be
wiretapped by the U.S. government without supervision by the FISA Court. The
Act removes from the definition of "electronic surveillance" in FISA
any surveillance directed at a person reasonably believed to be located outside
the United States. As such, surveillance of these communications no longer
requires a government application to, and order issuing from, the FISA Court.
The Act provides procedures
for the government to "certify" the legality of an acquisition
program, for the government to issue directives to providers to provide data or
assistance under a particular program, and for the government and recipient of
a directive to seek from the FISA Court, respectively, an order to compel
provider compliance or relief from an unlawful directive. Providers receive
costs and full immunity from civil suits for compliance with any directives
issued pursuant to the Act.
A summary of key provisions
follows. The Act empowers the Attorney General or Director of National
Intelligence ("DNI") to authorize, for up to one year, the
acquisition of communications concerning "persons reasonably believed to
be outside the United States" if the Attorney General and DNI determine
that each of five criteria has been met:
·
There are reasonable procedures in place for determining
that the acquisition concerns persons reasonably believed to be located outside
the United States;
·
The acquisition does not constitute electronic
surveillance (meaning it does not involve solely domestic communications);
·
The acquisition involves obtaining the communications
data from or with the assistance of a communications service provider who has
access to communications;
·
A significant purpose of the acquisition is to obtain
foreign intelligence information; and
·
Minimization procedures outlined in the FISA will be
used.
This determination by the
Attorney General and DNI must be certified in writing, under oath, and
supported by appropriate affidavit(s). If immediate action by the government is
required and time does not permit the preparation of a certification, the
Attorney General or DNI can direct the acquisition orally, with a certification
to follow within 72 hours. The certification is then filed with the FISA Court.
Once the certification is
filed with the FISA Court, the Attorney General or DNI can direct a provider to
undertake or assist in the undertaking of the acquisition.
If a provider fails to
comply with a directive issued by the Attorney General or DNI, the Attorney
General may seek an order from the FISA Court compelling compliance with the
directive. Failure to obey an order of the FISA Court may be punished as a
contempt of court.
Likewise, a person
receiving a directive may challenge the legality of that directive by filing a
petition with the FISA Court. An initial review must be conducted within 48
hours of the filing to determine whether the petition is frivolous, and a final
determination concerning any non-frivolous petitions must be made – in writing
– within 72 hours of receipt of the petition.
Determinations of the FISA
Court may be appealed to the Foreign Intelligence Court of Appeals, and a
petition for a writ of certiorari of
a decision from the FICA can be made to the U.S. Supreme Court.
All petitions must be filed
under seal.
The Act allows providers to
be compensated, at the prevailing rate, for providing assistance as directed by
the Attorney General or DNI.
The Act provides explicit
immunity from civil suit in any federal or state court for providing any
information, facilities, or assistance in accordance with a directive under the
Act.
Within 120 days, the
Attorney General must submit to the FISA Court for its approval the procedures
by which the government will determine that acquisitions authorized by the Act
conform with the Act and do not involve purely domestic communications. The
FISA Court then will determine whether the procedures comply with the Act. The
FISA Court thereafter will enter an order either approving the procedures or
directing the government to submit new procedures within 30 days or cease any
acquisitions under the government procedures. The government may appeal a
ruling of the FISA Court to the FICA and ultimately the Supreme Court.
On a semiannual basis, the
Attorney General shall inform the Intelligence and Judiciary Committees of the
House and Senate of incidents of noncompliance with a directive issued by the
Attorney General or the DNI, incidents of noncompliance with FISA
Court-approved procedures by the Intelligence Community, and the number of certifications
and directives issued during the reporting period.
The amendments to FISA made
by the Act expire 180 days after enactment, except that any order in effect on
the date of enactment remains in effect until the date of expiration of such
order and such orders can be reauthorized by the FISA Court.”[38] The Act expired on February
17, 2008.
Legal experts experienced
in national security issues are divided on how broadly the new law could be
interpreted or applied. Some believe that due to subtle changes in the
definitions of terms such as "electronic surveillance", it could
empower the government to conduct warrantless physical searches and even
seizures of communications and computer devices and their data which belong to
U.S. citizens while they are in the United States, if the government contended
that those searches and potential seizures were related to its surveillance of
parties outside the United States. Intelligence officials, while declining to
comment directly on such possibilities, respond that such interpretations are
overly broad readings of the act, and unlikely to actually occur. Democratic
lawmakers have nonetheless indicated that they are planning to introduce a
revised version of the legislation for consideration as early as September
2007.[39]
In a September 10, 2007
address at a symposium on modernizing FISA held at Georgetown
University Law Center's National Security Center, Kenneth L. Wainstein, Assistant Attorney General for National Security, argued
against the current six-month sunset provision in the Protect America
Act of 2007, saying that the broadened surveillance powers the act provides for
should be made permanent. Wainstein proposed that internal audits by the Office
of the Director
of National Intelligence and the National Security Division of the Justice Department,
with reporting to select groups of Congressmen, would ensure that the expanded
capability would not be abused.[40]
Also on September 10, DNI Mike McConnell testified
before the Senate Committee on Homeland Security and Governmental
Affairs that the Protect America Act had helped foil a major
terror plot in Germany. U.S. intelligence-community officials questioned the
accuracy of McConnell's testimony and urged his office to correct it, which he
did in a statement issued September 12, 2007. Critics cited the incident as an
example of the Bush administration's exaggerated claims and contradictory
statements about surveillance activities. Counterterrorism officials familiar
with the background of McConnell's testimony said they did not believe he made
inaccurate statements intentionally as part of any strategy by the
administration to persuade Congress to make the new eavesdropping law
permanent. Those officials said they believed McConnell gave the wrong answer
because he was overwhelmed with information and merely mixed up his facts.[41]
Speaking at National Security
Agency headquarters in Fort Meade, Maryland on September 19,
2007, President George W. Bush urged
Congress to make the provisions of the Protect America Act permanent. Bush also
called for retroactive immunity for telecommunications companies who had cooperated
with government surveillance efforts, saying, "It's particularly important
for Congress to provide meaningful liability protection to those companies now
facing multibillion-dollar lawsuits only because they are believed to have
assisted in efforts to defend our nation, following the 9/11 attacks".[42]
On October 4, 2007, the
bipartisan Liberty and Security Committee of the Constitution Project,
co-chaired by David Keene and David D. Cole, issued its "Statement on
the Protect America Act".[43] The Statement urged Congress
not to reauthorize the PAA, saying the language of the bill "runs contrary
to the tripartite balance of power the Framers envisioned for our
constitutional democracy, and poses a serious threat to the very notion of
government of the people, by the people and for the people". Some in the
legal community have questioned the constitutionality of any legislation that
would retroactively immunize telecommunications firms alleged to have
cooperated with the government from civil liability for having potentially
violated their customers' privacy rights.[44]
In an article appearing in
the January/February 2008 issue of the Institute of Electrical and Electronics Engineers journal
of Security and Privacy, noted technology experts from academia and the
computing industry found significant flaws in the technical implementation of
the Protect America Act which they said created serious security risks,
including the danger that such a surveillance system could be exploited by
unauthorized users, criminally misused by trusted insiders, or abused by the
government.[45]
On October 7, 2007, the Washington Post reported that House
Democrats planned to introduce alternative legislation which would provide for
one-year "umbrella" warrants, and would require the Justice
Department inspector general to audit the use of those warrants and issue
quarterly reports to a special FISA court and to Congress. The proposed bill
would not include immunity for telecommunications firms facing lawsuits in
connection with the administration's NSA
warrantless surveillance program. House Democrats said that as
long as the administration withholds requested documents explaining the basis
for the program that they cannot consider immunity for firms alleged to have
facilitated it.[46] On October 10, 2007 comments
on the White House South Lawn, President Bush said he would not sign any bill
that did not provide retroactive immunity for telecommunications corporations.[47]
On October 18, 2007, the
House Democratic leadership put off a vote on the proposed legislation by the
full chamber to avoid consideration of a Republican measure that made specific
references to Osama bin Laden.
At the same time, the Senate
Intelligence Committee reportedly reached a compromise with the
White House on a different proposal that would give telephone carriers legal
immunity for any role they played in the National Security Agency's domestic
eavesdropping program approved by President Bush after the Sep 11 terrorist attacks.[48]
On November 15, 2007, the Senate Judiciary
Committee voted 10–9 along party lines to send an alternative
measure to the full Senate other than the one the intelligence committee had
crafted with the White House. The proposal would leave to the full Senate
whether or not to provide retroactive immunity to telecommunications firms that
cooperated with the NSA. Judiciary Committee chairman Patrick Leahy said that granting such
immunity would give the Bush administration a "blank check" to do
what it wants without regard to the law. Arlen Specter of Pennsylvania, the top
Republican on the committee, said that court cases may be the only way Congress
can learn exactly how far outside the law the administration has gone in
eavesdropping in the United States. When the full Senate takes up the bill,
Specter is expected to offer a compromise that would shield the companies from
financial ruin but allow lawsuits to go forward by having the federal
government stand in for the companies at trial.[49]
On the same day, the House
of Representatives voted 227–189 to approve a Democratic bill that would expand
court oversight of government surveillance inside the United States while
denying immunity to telecom companies. House Judiciary
Committee chairman John Conyers left the door open to an
immunity deal in the future, but said that the White House must first give
Congress access to classified documents specifying what the companies did that
requires legal immunity.[50]
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In February 2008, the
Senate passed the version of the new FISA that
would allow telecom companies immunity. On March 13, 2008, the U.S. House of
Representatives held a secret session to discuss related information. On March
14, the House voted 213–197 to approve a bill that would not grant
telecom immunity – far short of the 2/3 majority required to override a
Presidential veto.[51] The Senate and House bills are
compared and contrasted in a June 12, 2008 report from the Congressional
Research Service.[52]
On March 13, 2008, the
House of Representatives held a secret, closed door meeting to debate changes
to the FISA bill.[53][54]
1. ^ 50 USC §1801(b) "“Agent of a
foreign power” means--
(2) any person who--
(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;
(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;
(D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or
(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C)."
(2) any person who--
(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;
(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;
(D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or
(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C)."
2. ^ Weiner, Eric (October 18, 2007). "The Foreign Service Intelligence Act: A
Primer". National Public Radio.
8. ^ Rosenbach, Eric, and Aki J. Peritz.
Confrontation or Collaboration? Congress and the Intelligence Community. Belfer
Center for Science and International Affairs. June 12, 2009. Harvard Kennedy
School. July 21, 2009 <http://belfercenter.ksg.harvard.edu/files/IC-book-finalasof12JUNE.pdf>.
13. ^ 50
U.S.C. § 1802(a)(1), Conditions under which the
President, through the Attorney General, may authorize electronic surveillance
without a court order
14. ^ 50
U.S.C. § 1802(a)(3), Requirement of the Attorney
General's to file reports under seal on warrantless surveillance to the FISC
15. ^ 50
U.S.C. § 1802(a)(2), Requirement of the Attorney
General's to report on compliance with warrantless surveillance requirements to
Congress
16. ^ 50 U.S.C. §1802 (a)(1)(A) The limitation
of warrantless surveillance to foreign powers as defined in 50 U.S.C § 1801 (a)
(1),(2), and (3)
17. ^ a b 50 U.S.C. §1809 – Criminal sanctions
18. ^ a b 50 U.S.C. §1810 – Civil liability
28. ^ Richard A. Posner (15 February 2006). "A New Surveillance Act". wsj.com.
Retrieved 10 July 2013.
35. ^ Conflicting Bills on Warrantless Surveillance Advance in
Senate, Secrecy News, September 14, 2006
37. ^ Bazan, Elizabeth (February 14, 2008). "P.L.
110-55, the Protect America Act of 2007:Modifications to the Foreign
Intelligence Surveillance Act" (PDF).Congressional
Research Service. Retrieved April 29, 2008.
38. ^ Sussmann, Michael (August 6, 2007). "FISA Amended to Allow Acquisition of Cross-Border
Communications Without a Court Order". DigestibleLaw.com.
Archived fromthe original on September 29, 2007.
Retrieved August 11, 2007.
39. ^ James Risen and Eric Lichtblau (August
19, 2007). "Concerns Raised on Wider Spying Under New Law".
The New York Times. Retrieved August 19, 2007.
40. ^ Ryan Singel (September 11, 2007). "Government Promises to Self-Audit Spying to Make
Powers Permanent". Wired News. Retrieved September 11, 2007.
41. ^ Michael Isikoff and Mark Hosenball
(September 12, 2007). "Spy Master Admits Error". Newsweek.
Archived from the original on November 5, 2007.
Retrieved September 13, 2007.
42. ^ Anne Broache (September 12, 2007). "President
Bush rallies for immortal spy law changes, telco protection".
CNET News.com. Retrieved September 20, 2007.
44. ^ Anthony J. Seebok (January 29, 2008). "Is It Constitutional for the Senate to
Retroactively Immunize From Civil Liability the Telecoms That Provided the
Government with Information About Customers' Communications?".
FindLaw Writ Legal News and Commentary. Retrieved February 7, 2008.
45. ^ Steven M. Bellovin, Matt Blaze,
Whitfield Diffie, Susan Landau, Peter G. Neumann, and Jennifer Rexford
(February 5, 2008). "Risking Communications Security: Potential Hazards
of the Protect America Act" (PDF). Institute of Electrical and Electronics Engineers Security
and Privacy. doi:10.1109/MSP.2008.17.
Retrieved February 5, 2008.
46. ^ Ellen Nakashima (October 7, 2007). "Democrats to Offer New Surveillance Rules".
The Washington Post. Retrieved October 7, 2007.
47. ^ David Stout (October 10, 2007). "Bush Presses Congress on New Eavesdropping
Law". The New York Times. Retrieved October 10, 2007.
48. ^ Eric Lichtblau (October 18, 2007). "Senate Deal on Immunity for Phone Companies".
The New York Times. Retrieved October 18, 2007.
49. ^ Pamela Hess (November 15, 2007). "Congress Takes Up Terrorist Surveillance".
Associated Press. Archived from the original on November 16, 2007.
Retrieved November 15, 2007.
50. ^ Pamela Hess (November 15, 2007). "House OKs Surveillance Oversight Bill".
Associated Press. Archived from the original on November 18, 2007.
Retrieved November 15, 2007.
51. ^ Jonathan Weisman (March 15, 2008). "House Passes a Surveillance Bill Not to Bush's
Liking". The Washington Post. Retrieved March 28, 2008.
52. ^ Bazan, Elizabeth (February 8, 2008). "The
Foreign Intelligence Surveillance Act: Comparison of House-Passed H.R. 3773, S.
2248 as Reported by the Senate Select Committee on Intelligence, and S. 2248 as
Reported Out of the Senate Judiciary Committee" (PDF). Congressional
Research Service. Retrieved April 29, 2008.
·
Greenwald, Glenn.
"Fisa court oversight: a look inside a secret and empty
process." The Guardian. Tuesday June 18, 2013.
·
Roberts, Dan. "US must fix secret Fisa courts, says top judge who
granted surveillance orders." The Guardian. Tuesday July 9, 2013.
·
Foreign Intelligence Surveillance Act resources
from the Federation of American Scientists
·
The Foreign Intelligence Surveillance Act: A Brief
Overview of Selected Issues, Congressional Research Service,
February 8, 2008
·
The Foreign Intelligence Surveillance Act: An Overview of
the Statutory Framework and Recent Judicial Decisions, Congressional
Research Service, September 22, 2004
·
2004 FISA Annual Report to Congress, via FAS
·
"So Judge, How Do I Get That FISA Warrant?" The
Policy and Procedure for Conducting Electronic Surveillance. The
Army Lawyer, October 1997
·
Executive
Order 12139 –
Jimmy Carter's Executive order to provide as set forth in FISA for the authorization
of electronic surveillance for foreign intelligence purposes
·
Executive
Order 12949 –
Bill Clinton's Executive order to provide for the authorization of physical
searches for foreign intelligence purposes
·
David Alan Jordan, Decrypting the Fourth Amendment: Warrantless NSA
Surveillance and the Enhanced Expectation of Privacy Provided by Encrypted
Voice over Internet Protocol – Boston College Law Review, Vol.
47, 2006
·
K. A. Taipale, The Ear
of Dionysus: Rethinking Foreign Intelligence Surveillance, 9
Yale J. L. & Tech. 128 (Spring 2007).
·
Prepared Remarks of Kenneth L. Wainstein, Assistant
Attorney General for National Security at the Georgetown
University Law Center's National Security Center Symposium on Foreign
Intelligence Surveillance Act Modernization, September 10, 2007
·
The Need to Roll Back Presidential Power Grabs,
by Arlen Specter, The New York
Review of Books, Volume 56, Number 8 · May 14, 2009
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