Posted by Randy Gainer

The Department of Justice disclosed its most recent proposed changes to the Foreign Intelligence Surveillance Act (FISA) on April 13th. The DoJ proposals are set out in Title IV, “FISA Modernization Provisions,” of the Fiscal Year 2008 Intelligence Authorization Act. The DoJ also issued a supposed “Fact Sheet” on Friday the 13th promoting the proposals but, as Lisa Graves of The Center for National Security Studies said her section-by-section critique of the DoJ “Fact Sheet”, the DoJ ignores the facts and misrepresents the effects of the proposed changes. “The bill’s changes are not modest updates to modernize FISA and increase privacy, but would dramatically change the law and substantially weaken civil liberties protections in the current law.” Id., 1. 

The courts’ decisions in cases challenging the NSA’s warrantless surveillance program, together with political changes brought about by the November 2006 elections, appear to have decreased the DoJ’s chances of persuading Congress to enact its FISA proposals. Even Senator Arlen Specter, R-Pa., who before the elections proposed FISA amendments backed by the Bush administration, gives the DoJ’s FISA proposals little chance of being adopted. “I think this is all really going to have to await a decision by the courts on this matter,” Senator Specter said. James Risen, Legislation Seeks to Ease Rule on Domestic Spying, The New York Times, A13 (April 14, 2007).

Let’s hope that Senator Specter is right this time. The DoJ bill includes several many proposals that should never be enacted. Among the worst are:

  1. Allowing the NSA to intercept and make copies of emails and the content of telephone calls to or from persons in the U.S. and individuals outside of the country, without a warrant or FISA court order, if the acquisition of the communications is done as part of an en masse interception.  See the DoJ’s proposed bill at § 401(b), which would amend the definition of “electronic surveillance” in FISA to apply only to “intentionally directing surveillance at a particular, known person . . . .” This proposed change is unconstitutional. Compare ACLU v NSA, 428 F. Supp.2d 754, 773-75 (E.D. Mich. 2006) (holding that the 4th Amendment forbids the government from intercepting emails and telephone calls of U.S. persons en masse), app. pending, Nos. 06-2095, 06-2140 (6th Cir. 2007), with United States v. Duggan, 743 F.2d 59, 73 (2d Cir. 1984) (finding FISA did not violate the 4th Amendment in part because “the Act requires that the FISA Judge find probable cause to believe that the target is a foreign power or an agent of a foreign power . . . .”)
  2. Allowing the government to retain and analyze indefinitely data collected through surveillance conducted under FISA. See the DoJ’s proposed bill at § 401(d), which would repeal one of the “minimization” requirements currently in FISA, 50 U.S.C. § 1801(h)(4). That section prohibits the government from retaining data obtained through electronic surveillance of U.S. person for more that 72 hours unless approved by a court or the attorney general determines that the information indicates a threat of death or serious bodily harm to any person.
  3. Retroactively granting immunity to telecommunications companies and other persons, presumably including Bush Administration officials, who violated the law by providing telephone call records and other data to the NSA without a court order. See the DoJ’s proposed bill at § 408.

Senator Specter properly admonished the Administration for proposing the immunity provision for telecommunications companies because
“[t]here has never been a statement from the administration as to what these companies have done. That’s been an intolerable situation.” Risen, Legislation Seeks to Ease Rule on Domestic Spying, The New York Times, supra.

The effects of proposed DoJ FISA amendments should be thoroughly evaluated by Congress — after it gets more information about the NSA’s current program and after appeals regarding that program are decided. Until then, the DoJ proposal should be shelved.