T Nation

New FISA Legislation

So Congress has now passed some legislation to clarify the whole situation on foreign wiretaps. Overall, it looks like they did a fairly good job - probably because they took their time (remember the kerfluffle over this was a while ago).

Here’s the text of what was passed:


Here’s a summary from GWU law professor Orin Kerr ( http://www.volokh.com/archives/archive_2007_08_05-2007_08_11.shtml#1186332672 ):


[i]So what does the legislation do? As I see it, there are three key parts of the new legislation. The first change is a clarification that FISA warrants are not needed for “surveillance directed at a person reasonably believed to be located outside of the United States.”

That is, if the government is monitoring someone outside the United States from a telecom switch in the U.S., it can listen in on the person’s calls and read their e-mails without obtaining a FISA warrant first. The Fourth Amendment may still require reasonableness in this setting when one or more people on the call of e-mail are inside the U.S. or are United States citizens, but there is no statutory warrant requirement.

The second change is a requirement of a formal authorization of a program to do such monitoring. The Director of National Intelligence and the AG have to approve a program (for up to one year) reasonably designed to be limited to the monitoring of persons outside the United States. Those procedures have to be submitted to the FISA court, which then reviews whether the Executive’s conclusion that the procedures are reasonably designed to only pick up the communications of people reasonably believed to be outside the U.S. is “clearly erroneous.”

If the conclusion is clearly erroneous, the court sends them back and tells the Executive to try again. The government can also appeal that determination to the FISA Court of Review and if needed the Supreme Court. I’m not exactly sure, but my sense is that this is a one-size-fits-all order; that is, the one authorization covers all the providers.

The third change – and probably the most important, albeit something that a lot of people will overlook – is that ISPs and telcos have to comply with the program. They will get compensation for their time and effort “at the prevailing rate,” and they can challenge the legality of the program in the FISA court, but they can’t opt out of the program if it is held to be legal.

In effect, the government’s certification of the program is akin to a court order; it makes the program mandatory instead of optional. So long as the program passes legal muster, the providers have to go along with it; if they refuse to cooperate, the FISA Court can hold them in contempt. (Note that the providers can’t be held civilly liable for their mandatory participation in the program, either.)[/i]

Here is a link to an op-ed from Columbia law professor Phillip Bobbitt arguing the merits of this reform:

It seems to me that this was a good job and that it clarified an important area.

See this interview with Director of National Intelligence Michael McConnell on the background foreign intelligence issues: