S. Judiciary Committee Approves FISA Legislation
In February, provisions of the Protect America Act (PAA) – an amendment to the Foreign Intelligence Surveillance Act (FISA) passed by Congress in August last year – will expire. FISA was enacted in the late 1970s in response to "revelations with regard to past abuses of electronic surveillance for national security purposes and to the somewhat uncertain state of the law on the subject," according to a CRS Report. The PAA "gave the government broad powers to monitor Americans' telephone and email communications on any subject with any person located overseas without first obtaining a warrant – in violation of the Fourth Amendment's prohibition on warrantless searches," according to Michelle Richardson of the ACLU.
Prompted by the February 1, 2008 expiration of the PAA, the House and Senate are considering extending of some of its provisions. A provision regarding retroactive immunity to telecommunication companies for warrantless wiretapping has generated debate.
In the aftermath of the September 11, 2001 attacks, the Bush administration allegedly asked telecommunications companies to assist the government by secretly eavesdropping and gathering data on their customers without first obtaining a warrant or legislative authorization, according to a CRS Report. At least 40 lawsuits are pending against telecom companies for violating customer's Fourth Amendment rights. The administration, and some members of Congress, has sought to provide retroactive immunity to the telecom companies for warrantless wiretapping that occurred before the PAA was enacted.
Three main legislative approaches have emerged. First, Congress may abstain from interfering with the judicial processes that will determine whether the telecommunications companies are liable for allegedly assisting the government with secretly eavesdropping and data mining their customers without first requiring the production of a warrant. The House of Representatives took this approach in the RESTORE Act, which it passed in November, as did the Senate Judiciary Committee in legislation it approved yesterday. Second, Congress may make the government liable for the wiretapping while granting immunity to the telecommunications companies, an approach favored by Senator Arlen Specter (R-PA) but that was rejected when he proposed it to the Senate Judiciary Committee. Finally, Congress may grant retroactive immunity to the telecom companies, an approach embodied by legislation approved by the Senate Intelligence Committee. The Congressional Research Service has compiled a side-by-side comparison of the three legislative vehicles that embody the varying approaches.
The full Senate is expected to start consideration of the Senate Judiciary Committee and Senate Intelligence Committee approaches today, according to Wired, with a vote expected next week. Senator Specter announced plans to offer his version of the legislation, which substitutes the federal government for the telecom companies as the defendant. The ACLU, however, argues that Specter's substitution is "immunity by another name," because the government can still assert sovereign immunity, which prohibits lawsuits against the government without the government's consent and would leave the plaintiffs without judicial recourse.
The version of the legislation passed yesterday by the Senate Judiciary Committee "sunsets in 4 years, requires an audit of the warrantless wiretapping programs, eliminates one 'bulk collection' loophole and reaffirms that FISA is the surveillance law of the land, that can't be overwritten by an Authorization to Use Military Force that doesn't explicitly include wiretapping provision," according to advocate groups as reported in Wired.
According to Glenn Greenwald, Senate Majority Leader Reid has chosen to use the Senate Intelligence Committee version of the legislation as the "base" bill to be considered by the full Senate, which would require 60 votes to amend.