ACLU Section By Section Analysis of S. 2248, Rockefeller / Bush Administration FISA bill

November 2, 2007
Summary:  This bill unconstitutionally allows the government to wiretap Americans’ emails and phone calls without prior, individualized court review, and without any suspicion of wrongdoing.  It declares all Americans’ international communications fair game, allowing the government to collect, keep, and use them forever without any restrictions on how these communications should be protected. It provides for virtually no checks and balances on the wiretaps, providing that the only role for the secret FISA court is to amend general procedures after surveillance has begun.   

AG = Attorney General
DNI = Director of National Intelligence
FISA = Foreign Intelligence Surveillance Act
FISC = Foreign Intelligence Surveillance Court
ECPs = Electronic Communication Providers

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TITLE I:  COURT-FREE WIRETAPPING AND PHYSICAL SEARCHES

SECTION 101:  WARRANTLESS WIRETAPPING

Creates a new Title VII of the Foreign Intelligence Surveillance Act of 1978 to provide for year-long blanket surveillance orders issued directly by the Attorney General / Director of National Intelligence without prior or individualized court review.

Sec. 701:  Declares that the definition of “electronic surveillance,” and therefore spying overseen by standard FISA procedures, does not include spying targeted “at a person reasonably believed to be located outside the United States.”

Sec. 702: Definitions.

Sec. 703 (a-b): Allows the AG and DNI to issue one year orders for surveillance of communications where one party is outside of the US.  The only limitation on the orders is that the surveillance powers not be used to intentionally target a particular, known person in the US.   

PROBLEMS:  The government can pick up all international communications coming into and out of the US, even if an American is one party to the call.  That the person may  not be the so-called “target” of the wiretap provides no protection – his or her communications are picked up anyway. All of this is done without the review of the court, raising clear and serious Fourth Amendment concerns.

Sec. 703 ( c):   Requires that targeting of US persons, who are outside of the United States, occur with a traditional, individualized FISA warrant if the acquisition is in the US.  However, it allows the government to collect communications of a US person abroad if the acquisition occurs overseas and the FISA court finds that the target is an agent of a foreign power.  

Within 30 days of passage, the bill requires the AG to submit guidelines to the FISC about how it will determine whether people overseas are US persons. 

Sec.  703 (d-e): Requires the AG and DNI to adopt “targeting procedures that are reasonably designed to ensure that any acquisition [directed at people overseas] is limited to targeting persons reasonably believed to be located outside the US.  Allows judicial review pursuant to section (i) below.

Sec. 703(f):  The AG and DNI will adopt minimization procedures for the new warrantless program to collect communications where at least one party is overseas.   Allows judicial review pursuant to section (i) below.

PROBLEMS:  “Minimization” as currently defined in FISA and this bill does not protect Americans’ communications.  Just like the Protect America Act, there is no affirmative responsibility to sequester or destroy the communications of  innocent Americans that is picked up through the new warrantless dragnets. The government can use and share American information “consistent with the need of the US to obtain, produce and disseminate foreign intelligence information.”

Sec. 703(g)   Requires the AG and DNI to certify that the new warrantless surveillance:  (i) will be conducted in line with procedures to reasonably determine that surveillance is targeting people outside of the US; (ii) that these procedures are consistent with the Fourth Amendment; (iii) that a significant purpose is to obtain foreign intelligence information; (iv) that minimization procedures are consistent with Section 101(h) of FISA; (v) the program involves the assistance of a communications service provider; and (vi)  does not constitute “electronic surveillance,” e.g., intentionally targets someone in the US.

  The certification need not identify “the specific facilities, places, premises or property at which the acquisition’ will be directed or conducted.  It shall be sent to the FISC within 5 days of issuance.

PROBLEMS:  Just like the current Protect America Act, there is absolutely no requirement of wrongdoing, much less a necessary link to terrorism, before the government can acquire Americans’ phone calls and emails.  Further, the orders will be nearly blank as they do not even need to specify who’s being surveilled, the type of communications being collected, or even the facilities the government is tapping into.  This again raises acute Fourth Amendment problems of probable cause and particularity.   

Sec. 703(h): Allows the AG and DNI to order communication providers to open their facilities to the government.  The government shall compensate the ECPs for their efforts.  Grants prospective immunity for companies that rely on directives issued under this new program.

Allows recipients to challenge a directive before the FISC, and allows the government to seek contempt of court against ECPs who do not cooperate with a directive.  Whether hearing a challenge or a contempt motion, the FISC will only set aside the directive if it “finds that the directive does not meet the requirements of this section or is otherwise unlawful.”   Permits appeals up to the FISCR and the Supreme Court.

PROBLEMS:  May provide for stiff new penalties for ECPs who may refuse to cooperate with the new warrantless dragnet because they believe it to be unconstitutional. 

Sec. 703(i-k)  The FISC shall have jurisdiction to review the certification under (g) to determine whether it meets the statutory elements above.  It will also have jurisdiction to review the targeting guidelines required by subsection (e) to determine that acquisition activity is “limited to the targeting of persons reasonably believed to be located outside the United States.”  Finally, the court will review minimization procedures to make sure they comply with FISA section 101(h).  Targeting and minimization may also be reviewed for consistency with the Fourth Amendment.

The court has the explicit authority to order the collection of communications cease or order changes in the program. 

PROBLEMS:  After the fact, aggregate review of processes does not meet the Fourth Amendment requirements of probable cause and particularity. Just like the Protect America Act, the Administration / Rockefeller bill renders the secret FISA court nearly useless, allowing it intervene only after surveillance is under way, and then only on the basis of information handed over by the executive branch.

703(l):  At least once every six months the AG and DNI shall assess their own compliance with their own guidelines and send the results to the FISC and the Intelligence Committees. 

The Inspectors General of the Justice Department and any other intelligence element are authorized – but not required – to review whether their agencies are in compliance with targeting and minimization procedures.  They also “shall” review the distribution of US person information and number of targets later determined to be in the US and how many of their communications were reviewed.  These reports shall go to the AG, DNI, and the Intelligence Committees.

Each element of the intelligence community is also required to conduct an annual review “to determine whether there is reason to believe that foreign intelligence information has been or will be obtained from the acquisition” and whether minimization procedures were effective in protecting US information.  These reports shall go to the FISC.

At least twice a year the AG shall report to the Intelligence and Judiciary Committees.  Those reports shall include such things as copies of certifications, directives, legal filings, enforcement actions, descriptions of compliance reviews and the annual review conducted by each element of the intelligence agency.

PROBLEMS:   The overwhelming weight of this section allows the government to police itself as to whether it is following its own secret guidelines, which it then secretly reports to the Intelligence Committees.  Minimal reporting is due to the Judiciary Committees and the FISC. 

704(a): Subjects information collected under this new program to the standard FISA rules about use of information under section 106 – for example, notifying a defendant that FISA evidence will be used against him in his trial. 

PROBLEMS:  It exempts any emergency surveillance from notification requirements, whether a true emergency or not.  FISA has always allowed emergency surveillance, with the caveat that if the secret court later determines no true emergency existed, the information could not be used and had to be destroyed – an exclusionary rule of sorts to discourage abuse of this far reaching authority.  There will an incentive to use this authority  in many circumstances where no real emergency exists.

704(b): Table of Contents

704( c): Creates a six year sunset, with the bill ceasing to have legal effect on December 31, 2013. 

SECTION 102:  EXCLUSIVITY

Declares FISA and Title 18 of the United States Code the exclusive means for conducting electronic surveillance – as originally defined in FISA and not the new definition with international program warrants carved out.

SECTION 103:  CONGRESSIONAL ACCESS TO FISC ORDERS

Adds FISC orders to the current semiannual Congressional reporting. It also puts an affirmative responsibility on the AG to give FISC orders that provide substantial legal interpretation to Congress within 45 days of their issuance. 

SECTION 104:  AMENDING REGULAR FISA APPLICATIONS

Reduces specificity of standard, individualized FISA surveillance orders.  First, it strikes the requirements that the government state under what authority it is seeking surveillance  and provide a list of all the surveillance devices to used and the minimization tactics specific to each. Section 104 also amends applications so they no longer need a detailed description of the nature of the information sought and the type of communications or activities to be surveilled; allows only a summary of the means by which surveillance will be effected.  Adds the CIA Director to the list of officials who may request that the AG personally review an application. Adds the Deputy Director of the FBI to the list of officials who may issue certifications relevant to the application.

SECTION 105:  AMENDING REGULAR FISA ORDERS

Amends the FISC orders to mirror the shorter and less specific applications detailed in the previous section.

Extends the emergency wiretapping provision from 3 to 7 days. 

Directs the FISC to simultaneously authorize pen register / trap and trace orders at the request of the government if the FISC is otherwise approving a wiretap order. 

SECTION 106:  USE OF INFORMATION

Extends the mandatory destruction requirement of accidentally acquired, purely domestic  radio communications to all communications regardless of the mode of transmission.

SECTION 107:  AMENDMENTS TO PHYSICAL SEARCHES

Eliminates requirement that physical search applications be detailed.  Explicitly permits a place to be searched before the target becomes the owner.  Adds the Deputy Director of the FBI and the Director of the CIA to the approval process.

TITLE II- IMMUNITY FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS

SECTION 201:  DEFINITIONS

Employs traditional definitions of electronic service providers (ECPs).  Defines their “assistance” as “provision of access to information (including communication contents, communications records, or other information relating to a customer or communication), facilities, or another form of assistance.”          

Defines covered civil actions as any state or federal court action seeking money or other relief against an ECP. 

SECTION 202:  RETROACTIVE IMMUNITY FOR ILLEGAL WIRETAPPING

Allows the AG to kill state and federal court cases by certifying that either 1) the ECP did not participate in surveillance activities, or 2) that it did so between September 11, 2001 and January 17, 2007, and participated in reliance on a written assertion by the President that the activity was legal. Such a certification can only be reviewed by the court for abuse of discretion.

Allow the AG or deputy AG to make the above certifications ex parte and in camera, and requires the court to dismiss the case without clarifying whether the case was dismissed because the ECP did not participate or because the President provided a written certification.  .

Declares that all state actions are removable to federal court.

Applies to all cases pending at the time of passage and field thereafter.

PROBLEMS:  Lets the AG single handedly decide whether consumers can seek justice in state or federal court to determine whether they have been spied upon or even seek an injunction from happening in the future.  Those courts will literally have no say about whether cases should continue.  Completely hides ECP involvement in spying by gagging the court from distinguishing between those cases that are killed because the ECP didn’t spy, and those cases that the AG just wants buried to hide liability.  Cases will be dismissed even if they do not seek money damages but only declaratory and injunctive relief. Writes into law the executive branch’s unlimited power to shield an entire industry without any public airing of facts.    

SECTION 203:  PROSPECTIVE IMMUNITY FOR ECPS

Creates a new Title VIII to FISA:

Sec. 801: Definitions

Sec. 802: Allows the AG to kill any case against someone who assists the intelligence community – an ECP, a landlord, or other custodian, for example – by certifying to the court that the person was acting in accordance with a government order under FISA or Title 18. 

Again, allows the AG to make this certification in secret, and prevents the court from publicly announcing under which authority the activities took place and therefore led to dismissal. 

Also the federal government is empowered to remove all state cases to federal court. 

PROBLEMS: Allows the AG to single handedly – and preemptively – prevent Americans from asserting their rights in court.  Literally, if the AG says spying is legal, it is legal, and no court will ever be able to hear facts asserting otherwise. 

SECTION 204:  PREEMPTION OF STATE INVESTIGATIONS

Sec. 803:  Declares that no state may conduct an investigation into an ECP’s cooperation with the intelligence community; attempt to regulate intelligence activities; impose punishment for cooperating with the government; or bring a civil action that will lead to disclosure of information about intelligence activities.

The federal government may bring suit to enforce this in federal district court.

Applies to investigations active on and after the date of passage. 

PROBLEMS:  Retroactively and prospectively prevents states from enforcing their own privacy laws.  Will kill current state level investigations into whether laws have been broken by the warrantless spying facilitated by ECPs. 

TITLE III – OTHER PROVISIONS

Section 301:  Severability

Severability clause.

Section 302:  Transition Procedures

Orders in effect pursuant to the Protect America Act shall remain so until their original expiration dates.   Orders in effect at the time of the sunset – December 31, 2013 – shall also stay in effect until their original expiration dates.

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