FISA Amendments Act of 2008
Encyclopedia
The FISA Amendments Act of 2008 (also called the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, , enacted 2008-07-10) is an Act of Congress
that amended
the Foreign Intelligence Surveillance Act.
(NSA) was revealed publicly in late 2005 by The New York Times and then discontinued in January 2007. See Letter from Attorney-General Alberto Gonzalez to Senators Patrick Leahy and Arlen Specter, CONG. REC. S646-S647 (Jan. 17, 2007). Approximately forty lawsuits have been filed against telecommunications companies by groups and individuals alleging that the Bush administration illegally monitored their phone calls or e-mails.
Whistleblower evidence suggests that AT&T
was complicit in the NSA's warrantless surveillance, which could have involved the private communications of millions of Americans. The Foreign Intelligence Surveillance Act makes it illegal to intentionally engage in electronic surveillance under appearance of an official act or to disclose or use information obtained by electronic surveillance under appearance of an official act knowing that it was not authorized by statute; this is punishable with a fine of up to $10,000 or up to five years in prison, or both. In addition, the Wiretap Act prohibits any person from illegally intercepting,
disclosing, using or divulging phone calls or electronic communications; this is punishable with a fine or up to five years in prison, or both.
The FISA Amendments Act also added a new Title VII to FISA which contained provisions similar, but not identical, to provisions in the Protect America Act of 2007
which had expired earlier in 2008. The new provisions in Title VII of FISA are scheduled to expire on December 31, 2012.
blog
gers and Representative Ron Paul
supporters joined together to form a bipartisan political action committee
, Accountability Now, to raise money during a one-day money bomb, which, according to The Wall Street Journal
, would be used to fund advertisements against Democratic and Republican lawmakers who supported the retroactive immunity of the telecommunications company.
(ACLU) filed a lawsuit challenging the FISA Amendments Act of 2008 the same day that it was enacted into law. The case was filed on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations whose ability to perform their work - which relies on confidential communications - could be compromised by the new law. The complaint, captioned Amnesty et al. v McConnell and filed in the United States District Court for the Southern District of New York, argues that the new spying law violates Americans' rights to free speech and privacy under the First and Fourth Amendments to the Constitution. The case was dismissed from the district court on the grounds the plaintiff couldn't prove their claims, but was reversed on March 21, 2011 in the United States Court of Appeals for the Second Circuit
which said they could. The subsequent citation is Amnesty v. Blair
.
, Daniel Ellsberg
compared the current incarnation of FISA to the East German Stasi
. Ellsberg stated that the powers which were currently being given to the federal government through this and other recent amendments to FISA since the September 11th Attacks opened the door to abuses of power and unwarranted surveillance. Unlimited surveillance of the communications and conversations of American citizens by the federal government could be initiated by only the allegation of intent, regardless of fact. Abusive acquisition of information under FISA could conceivably be used to intimidate or suppress organizations or individuals in opposition to the governing administration.
Act of Congress
An Act of Congress is a statute enacted by government with a legislature named "Congress," such as the United States Congress or the Congress of the Philippines....
that amended
Rescind or amend something previously adopted
The motion to rescind, repeal, or annul is used in parliamentary procedure to cancel or countermand a previous action or order.-Explanation and Use:-Robert's Rules of Order Newly Revised :...
the Foreign Intelligence Surveillance Act.
Background
Warrantless wiretapping by the National Security AgencyNational Security Agency
The National Security Agency/Central Security Service is a cryptologic intelligence agency of the United States Department of Defense responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S...
(NSA) was revealed publicly in late 2005 by The New York Times and then discontinued in January 2007. See Letter from Attorney-General Alberto Gonzalez to Senators Patrick Leahy and Arlen Specter, CONG. REC. S646-S647 (Jan. 17, 2007). Approximately forty lawsuits have been filed against telecommunications companies by groups and individuals alleging that the Bush administration illegally monitored their phone calls or e-mails.
Whistleblower evidence suggests that AT&T
AT&T
AT&T Inc. is an American multinational telecommunications corporation headquartered in Whitacre Tower, Dallas, Texas, United States. It is the largest provider of mobile telephony and fixed telephony in the United States, and is also a provider of broadband and subscription television services...
was complicit in the NSA's warrantless surveillance, which could have involved the private communications of millions of Americans. The Foreign Intelligence Surveillance Act makes it illegal to intentionally engage in electronic surveillance under appearance of an official act or to disclose or use information obtained by electronic surveillance under appearance of an official act knowing that it was not authorized by statute; this is punishable with a fine of up to $10,000 or up to five years in prison, or both. In addition, the Wiretap Act prohibits any person from illegally intercepting,
disclosing, using or divulging phone calls or electronic communications; this is punishable with a fine or up to five years in prison, or both.
The FISA Amendments Act also added a new Title VII to FISA which contained provisions similar, but not identical, to provisions in the Protect America Act of 2007
Protect America Act of 2007
The Protect America Act of 2007 , , is a controversial amendment to the Foreign Intelligence Surveillance Act that was signed into law on August 5, 2007. It removed the warrant requirement for government surveillance of foreign intelligence targets "reasonably believed" to be outside of the...
which had expired earlier in 2008. The new provisions in Title VII of FISA are scheduled to expire on December 31, 2012.
Legislative history
- 2008-06-20: Passed the U.S. House of Representatives, by a 293 to 129 vote.
- 2008-06-26: A Senate vote was delayed by a filibusterFilibusterA filibuster is a type of parliamentary procedure. Specifically, it is the right of an individual to extend debate, allowing a lone member to delay or entirely prevent a vote on a given proposal...
spearheaded by Senators Russ FeingoldRuss FeingoldRussell Dana "Russ" Feingold is an American politician from the U.S. state of Wisconsin. He served as a Democratic party member of the U.S. Senate from 1993 to 2011. From 1983 to 1993, Feingold was a Wisconsin State Senator representing the 27th District.He is a recipient of the John F...
and Chris Dodd. Feingold said the bill threatened civil liberties in the United States. Dodd has said granting retroactive immunity would undermine the rule of lawRule of lawThe rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
.
- 2008-07-09: Dodd's amendment calling for a striking of Title II (the immunity provisions) was rejected 66 to 32. The bill itself was then put to a vote and passed 69 to 28.
- 2008-07-10: President George W. BushGeorge W. BushGeorge Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
signed the bill into law.
Netroots opposition to the bill
A group of netrootsNetroots
Netroots is a term coined in 2002 by Jerome Armstrong to describe political activism organized through blogs and other online media, including wikis and social network services. The word is a portmanteau of Internet and grassroots, reflecting the technological innovations that set netroots...
blog
Blog
A blog is a type of website or part of a website supposed to be updated with new content from time to time. Blogs are usually maintained by an individual with regular entries of commentary, descriptions of events, or other material such as graphics or video. Entries are commonly displayed in...
gers and Representative Ron Paul
Ron Paul
Ronald Ernest "Ron" Paul is an American physician, author and United States Congressman who is seeking to be the Republican Party candidate in the 2012 presidential election. Paul represents Texas's 14th congressional district, which covers an area south and southwest of Houston that includes...
supporters joined together to form a bipartisan political action committee
Political action committee
In the United States, a political action committee, or PAC, is the name commonly given to a private group, regardless of size, organized to elect political candidates or to advance the outcome of a political issue or legislation. Legally, what constitutes a "PAC" for purposes of regulation is a...
, Accountability Now, to raise money during a one-day money bomb, which, according to The Wall Street Journal
The Wall Street Journal
The Wall Street Journal is an American English-language international daily newspaper. It is published in New York City by Dow Jones & Company, a division of News Corporation, along with the Asian and European editions of the Journal....
, would be used to fund advertisements against Democratic and Republican lawmakers who supported the retroactive immunity of the telecommunications company.
Provisions
Specifically, the Act:- Prohibits the individual states from investigating, sanctioning of, or requiring disclosure by complicit telecoms or other persons.
- Permits the government not to keep records of searches, and destroy existing records (it requires them to keep the records for a period of 10 years).
- Protects telecommunications companies from lawsuits for "'past or future cooperation' with federal law enforcement authorities and will assist the intelligence community in determining the plans of terrorists." Immunity is given by a certification process. The certification can be overturned by a court on specific grounds.
- Removes requirements for detailed descriptions of the nature of information or property targeted by the surveillance if the target is reasonably believed to be outside the country.
- Increased the time for warrantless surveillance from 48 hours to 7 days, if the FISA court is notified and receives an application, specific officials sign the emergency notification, and relates to a U.S person located outside of the U.S with probable cause they are an agent of a foreign power. After 7 days, if the court denies or does not review the application, the information obtained cannot be offered as evidenceEvidenceEvidence in its broadest sense includes everything that is used to determine or demonstrate the truth of an assertion. Giving or procuring evidence is the process of using those things that are either presumed to be true, or were themselves proven via evidence, to demonstrate an assertion's truth...
. If the United States Attorney GeneralUnited States Attorney GeneralThe United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...
believes the information shows threat of death or bodily harm, they can try to offer the information as evidence in future proceedings. - Permits the Director of National Intelligence and the Attorney GeneralAttorney GeneralIn most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may also have executive responsibility for law enforcement or responsibility for public prosecutions.The term is used to refer to any person...
to jointly authorize warrantless electronic surveillance, for 1-year periods, targeted at a foreigner who is abroad. This provision will sunset on December 31, 2012. - Requires FISA court permission to target wiretaps at Americans who are overseas.
- Requires government agencies to cease warranted surveillance of a targeted American who is abroad if said person enters the United States. (However, said surveillance may resume if it is reasonably believed that the person has left the States.)
- Prohibits targeting a foreigner to eavesdrop on an American's calls or e-mails without court approval.
- Allows the FISA court 30 days to review existing but expiring surveillance orders before renewing them.
- Allows eavesdroppingEavesdroppingEavesdropping is the act of secretly listening to the private conversation of others without their consent, as defined by Black's Law Dictionary...
in emergencies without court approval, provided the government files required papers within a week. - Prohibits the government from invoking war powers or other authorities to supersede surveillance rules in the future.
- Requires the Inspectors GeneralInspector GeneralAn Inspector General is an investigative official in a civil or military organization. The plural of the term is Inspectors General.-Bangladesh:...
of all intelligence agencies involved in the President's Surveillance ProgramPresident's Surveillance ProgramThe President's Surveillance Program is a collection of secret intelligence activities authorized by then President of the United States George W. Bush after the September 11 attacks in 2001 as part of the War on Terrorism...
to "complete a comprehensive review" and report within one year
Effects
- The provisions of the Act granting immunity to the complicit telecoms create a roadblock for a number of lawsuits intended to expose and thwart the alleged abuses of power and illegal activities of the federal government since and before the September 11th attacks.
- Allows the government to conduct surveillance of any person for up to one week (168 hours) without a warrant, increased from the previous 48 hours, as long as the FISA courtUnited States Foreign Intelligence Surveillance CourtThe United States Foreign Intelligence Surveillance Court is a U.S. federal court authorized under , . It was established by the Foreign Intelligence Surveillance Act of 1978 . The FISC oversees requests for surveillance warrants against suspected foreign intelligence agents inside the United...
is notified at the time such surveillance begins, and an application as usually required for surveillance authorization is submitted by the government to FISA within those 168 hours .
ACLU Lawsuit
The American Civil Liberties UnionAmerican Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
(ACLU) filed a lawsuit challenging the FISA Amendments Act of 2008 the same day that it was enacted into law. The case was filed on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations whose ability to perform their work - which relies on confidential communications - could be compromised by the new law. The complaint, captioned Amnesty et al. v McConnell and filed in the United States District Court for the Southern District of New York, argues that the new spying law violates Americans' rights to free speech and privacy under the First and Fourth Amendments to the Constitution. The case was dismissed from the district court on the grounds the plaintiff couldn't prove their claims, but was reversed on March 21, 2011 in the United States Court of Appeals for the Second Circuit
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
which said they could. The subsequent citation is Amnesty v. Blair
Amnesty v. Blair
Amnesty v. Blair 2nd Cir. 09-4112 was a decision by the United States Court of Appeals for the Second Circuit reversing the dismissal of the Southern District of New York's opinion in the case brought by Amnesty International USA, International Criminal Defense Attorneys Association, The Nation...
.
Comparisons
In an internet broadcasted interview with Timothy FerrissTimothy Ferriss
Timothy Ferriss is an American author, entrepreneur, and public speaker. In 2007, he published The 4-Hour Workweek: Escape 9-5, Live Anywhere, and Join the New Rich, which was a New York Times and USA Today bestseller. In 2010, he followed up with The 4-Hour Body...
, Daniel Ellsberg
Daniel Ellsberg
Daniel Ellsberg, PhD, is a former United States military analyst who, while employed by the RAND Corporation, precipitated a national political controversy in 1971 when he released the Pentagon Papers, a top-secret Pentagon study of U.S. government decision-making in relation to the Vietnam War,...
compared the current incarnation of FISA to the East German Stasi
Stasi
The Ministry for State Security The Ministry for State Security The Ministry for State Security (German: Ministerium für Staatssicherheit (MfS), commonly known as the Stasi (abbreviation , literally State Security), was the official state security service of East Germany. The MfS was headquartered...
. Ellsberg stated that the powers which were currently being given to the federal government through this and other recent amendments to FISA since the September 11th Attacks opened the door to abuses of power and unwarranted surveillance. Unlimited surveillance of the communications and conversations of American citizens by the federal government could be initiated by only the allegation of intent, regardless of fact. Abusive acquisition of information under FISA could conceivably be used to intimidate or suppress organizations or individuals in opposition to the governing administration.
See also
- NSA warrantless surveillance controversyNSA warrantless surveillance controversyThe NSA warrantless surveillance controversy concerns surveillance of persons within the United States during the collection of foreign intelligence by the U.S. National Security Agency as part of the war on terror...
- Defense of DemocraciesDefense of DemocraciesDefense of Democracies is a non-profit organization created in February 2008 to lobby the U.S. House of Representatives to approve the updated Foreign Intelligence Surveillance Act passed by the U.S. Senate. The organization’s has spent over US$3 million on television and radio ad campaign to...
- Protect America Act of 2007Protect America Act of 2007The Protect America Act of 2007 , , is a controversial amendment to the Foreign Intelligence Surveillance Act that was signed into law on August 5, 2007. It removed the warrant requirement for government surveillance of foreign intelligence targets "reasonably believed" to be outside of the...