FISA 2.0 Called 'Atrocious' Privacy Violation

Monisha Bansal | Staff Writer | Wednesday, January 23, 2008

FISA 2.0 Called 'Atrocious' Privacy Violation

( - With Congress working on legislation to revise the Foreign Intelligence Surveillance Act (FISA) before the sunset provision in the Protect America Act expires on Feb. 1, privacy advocates say the proposal being offered by the Senate Select Committee on Intelligence is "atrocious."

In August, Congress passed and the president signed the Protect America Act, which allows the attorney general and the director of national intelligence (DNI) to "authorize the acquisition of foreign intelligence information" without the approval of the special court established by FISA.

According to the liberal American Civil Liberties Union, Senate Majority Leader Harry Reid (D-Nev.) is likely to bring an amendment to the floor this week written by the Intelligence Committee.

"We're back pretty much where we were in August," said Caroline Fredrickson, director of the ACLU Washington Legislative Office, during a conference call with reporters.

"Sen. Reid is about to move a bill to the floor that looks an awful lot like the Protect America Act, except with one additional very bad provision, and that's the provision that provides immunity to those telecommunications carriers that - in violation of the law -turned over their customer data to the NSA," she said. (NSA is the National Security Agency and Central Security Service of the U.S. government.)

Democratic pollster Mark Mellman, CEO of the Mellman Group, noted that according to a survey he conducted last week, "Americans surely want to protect the country from terrorism, but they also insist on protecting our constitutional rights."

"To that end, Americans vigorously oppose warrant-less wiretaps. They strongly support the notion that the government should have to get a warrant before wiretapping the conversations that U.S. citizens have with people abroad by 63 to 33 percent - almost a two-to-one margin," he said, noting that the numbers cut across party lines and ideology.

Fifty-seven percent of voters also rejected immunity for phone companies that may have violated the law by selling customers' private information to the government, preferring to let courts decide the outcome of any cases.

Brian Darling, director of Senate relations at the conservative Heritage Foundation, however, said, "I don't think Americans want to punish companies for good faith actions to help the federal government in capturing and investigating terrorists."

Darling added that "the Protect America Act restored the capability of our intelligence gathering federal officials to collect communications intelligence about al Qaeda by using cutting edge technology that enables us to collect data on terrorists."

"The Bush administration has asserted that this law has helped the United States develop a greater understanding al Qaeda networks," he told Cybercast News Service. "Al Qaeda continues to be a national security threat, and any effort to restrict the Protect America Act may have some unintended consequences that will slow the intelligence-gathering aspect of the global war on terror."

P.J. Crowley, director of homeland security at the liberal Center for American Progress (CAP), added that, while FISA is outdated, how it is updated matters.

"Advocates of the Protect America Act focus only on one side of the equation - finding the terrorists among us," Crowley told Cybercast News Service. "They overlook the fact that an open-ended search for a terrorist will implicate Americans at the other end of the phone or e-mail who are completely innocent.

"This is why the FISA court remains relevant," he said. "The FISA court has already adapted how it operates to accommodate the government's need to act quickly. Warrants can be constructed in ways that allow broad latitude but retain oversight by the court."

Mark Agrast, a senior fellow at CAP, said he was concerned the Intelligence Committee bill would give the administration a "blank check" to spy on Americans.

"The Protect America Act was ostensibly intended to address a specific problem acknowledged on all sides: foreign-to-foreign communications that pass through U.S. switches," he told Cybercast News Service.

"But the administration seized on this as an opportunity to enact legislation that effectively eviscerates FISA and goes far beyond what was necessary to address this problem," noting that the bill "makes a few modest improvements in the Protect America Act but fails to remedy its core deficiencies," Agrast said.

While the ACLU's Frederickson called the Intelligence Committee bill an "atrocious piece of legislation," she said the group is urging Reid to instead consider the Judiciary Committee's updates to the bill, introduced by Sen. Ron Wyden (D-Ore.), which would expand FISA's role.

But Darling called the bill "unwise," noting that "the Wyden Amendment would require a warrant for any overseas surveillance that is conducted that targets a U.S. citizen or a foreign national who holds a U.S. green card and is for foreign intelligence purposes."

"The Judiciary Committee substitute amendment makes FISA the exclusive means for acquiring 'communications information' for foreign intelligence purposes," he said. "This is potentially overbroad and may effectively bar the acquisition of information critical to the war on terror because the term communication information may prove to be too broad."

"Any statutory restriction on the president's power to effectively thwart domestic terrorist acts would be unwise," said Darling.

"By failing to assert his constitutional authority and buying into Congress' authority, the president has put himself in a position where he's now negotiating with Congress over minutia that will weaken our foreign intelligence-gathering capacity and lead inevitably to litigation," said Roger Pilon, vice president for legal affairs at the libertarian Cato Institute and director of Cato's Center for Constitutional Studies.

"He would have been far better off at the outset to have asserted his constitutional authority since every court has backed him on that," Pilon told Cybercast News Service.

"He has authority under Article II of the Constitution to engage in foreign intelligence-gathering. Not until 1978 did Congress seek to insinuate itself into this issue and try to micromanage foreign intelligence-gathering thereafter," he added.

"The congressional intrusion is unconstitutional," said Pilon, who added that the requirements that Congress created put a "burden" on those trying to gather intelligence information.

"It is hard enough already to do this intelligence gathering without having to do all of this secondary paperwork to satisfy Congress," he said.

As this story went to press, Pilon confirmed for Cybercast News Service that the Senate will take up the Intelligence Committee's bill, adding, "There are provisions of it that are problematic to the administration, and understandably so.

"They will complicate and significantly burden the collection of intelligence by requiring among other things retroactive record-keeping ... that will distract from the already overwhelming burden of terrorist intelligence-gathering around the world. A further concern is the ever-changing law, which makes it extraordinarily difficult for the people who actually do this to make repeated adjustments," Pilon added.

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