Section by Section of the RESTORE Act

October 17, 2007

SECTION BY SECTION  
H.R. 3773,  The RESTORE Act

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AG= Attorney General
DNI = Director of National Intelligence
FISA= Foreign Intelligence Surveillance Act
FISC = Foreign Intelligence Surveillance Court
FISCR = Foreign Intelligence Surveillance Court of Review

Section 1:                    Title

Section 2:                    Foreign to Foreign -- Clarifies that a court order is not required for the collection of foreign to foreign to foreign communications of non-US persons.  If a US person is accidentally captured in this surveillance, his information must be destroyed within 7 days unless there is an emergency. 

Foreign to US and vice versa --Permits the government to apply for a program order from the FISC, as long as it is targeting a foreigner overseas, to collect all communications coming into and going out of the United States, even if an American in the US is on the other end. Unlike the foreign to foreign program above, the government need not destroy Americans’ information. (see below for more detail)

Section 3(a-c):            Creates application and approval process for these new surveillance programs to capture US-foreign and foreign-US communications.  The application includes  a statement that the “targets” of the electronic surveillance are non-US persons reasonably believed to be outside of the US who may communicating with persons inside the US.   It should also include a description of the methods to determine that there is a reasonable belief that the targets are out of the U.S. and not US persons, and also to what extent the government plans to “minimize” US information (which does not mean destroy or purge, but try to limit the use of the information in certain circumstances).  

Clarifies that the application need not even specify what “facilities, places, premises or property” will be tapped. 

Problems:  Sets up a probably unconstitutional “program warrant” or “general warrant” because it does not describe with particularity the accounts or people to be searched or the communications/records to be seized, as required by the Fourth Amendment. 

Another concern is that the application will be virtually blank.  It is unclear how useful the FISC oversight will be when the court knows neither who is targeted nor what facilities are even being accessed to collect the information. 

Section 3(d):               Sets up court review where the secret FISC evaluates whether the secret guidelines are reasonably calculated to determine that the targets are not US person and are outside of the US.  Allows the government to appeal if an application for one of these programs is denied, and provides for interim orders while the appeal proceeds. 

Section 3(e):               On approval, the FISC order shall authorize the surveillance, direct telecommunication companies and other information “custodians” to turn over information and provide access to their facilities and infrastructure, and direct the government to pay the telecoms for their participation.

Clarifies that if telecoms refuse to cooperate they can be held in contempt of court.

A judge shall assess compliance with minimization procedures quartlerly by “reviewing the circumstances under which information concerning US persons was acquired retained or disseminated.” 

Problems:  Only a significant purpose of the surveillance need be for “foreign intelligence” purposes, permitting this tool to be used primarily for other purposes such as criminal ones, allowing the government to go around long standing Fourth Amendment and Title III procedures. 

 

Perhaps the biggest flaw of the entire bill, it leaves the decision of how to handle U.S information in the hands of the Administration and its secret “minimization procedures.”  To clarify, minimization procedures are not, and have never been, made public.  They do not require that American information be destroyed – except in the narrow circumstance of wiretapping an embassy, which absolutely does not apply to this program.  In the end, the only role for the court is to negotiate secret rules that do not even require that American information be destroyed, or ultimately prevent American information from being used or disseminated.   And there is no explicit authority for the court to modify the orders or the minimization procedures if it finds a problem during its quarterly review. 

Section 4:        Creates new emergency authority for the government to issue program orders without court review, lasting up to 45 days.  Must file with court within 7 days of starting the new program.

Problem:  Unlike the current emergency valve in FISA, the government can keep and use any information it collects under its self-issued emergency orders even if the court later determines that there was no emergency or the surveillance didn’t otherwise meet the requirements of FISA.  This eliminates the current incentive to use emergency orders only in truly emergency situations.

Section 5:  Orders must be sent to the Judic and Intel Committees.  The DOJ IG will conduct quartlerly audits determining how many Americans are both targeted, and swept up without targeting under the new programs. 

The government will also report quarterly about its compliance with the secret guidelines negotiated with the secret court and the use of the new 45-day emergency warrantless wiretapping authority.

Problems:  The government will only be reporting to Congress whether the AG is following his own secret rules about when to return to court to get a warrant. 

Further, the IG need not explain how the information about Americans is being used or who has access to it after it is collected through the newly permissible dragnet, but only report on the total numbers.  

Section 6:        Allows the FISC to sit en banc.

Section 7:        Authorizes four more FISA judges for a total of 15. 

Section 8:        Reiterates that FISA is the exclusive means for foreign intelligence wiretapping. 

Section 9:        Allows the government to warrantless wiretap for 15 days if Congress expressly passes an AUMF to that effect or if the US is attacked and the Congress cannot convene. 

Section 10:      Requires an DOJ IG audit the so-called “Terrorist Surveillance Program” and any other collection outside of FISA.  To be submitted in six months and discuss the legality of the programs. 

Section 11:      Institutes record keeping system.

Section 12:      Provides for more resources to facilitate the new orders and audits.

Section 13:      Requires electronic filing to be developed for FISA applications. 

Section 14:      Provides for further training of intelligence personnel and the FISA process.

Section 15:      Requires a congressional briefing on the so-called “Terrorist Surveillance Program” and other surveillance programs within 7 days of passage. 

Section 16:      Technical and conforming amendments.

Section 17:      Creates a sunset for the RESTORE Act on December 31, 2009.

Manager’s Amdt:      Requires that the government give a certification to telecom companies that the program is pursuant to this new program to accompany the court order for compliance.

Manager’s Amdt:      Extends the criminal statute of limitations under FISA from 5 to 10 years.

Manager’s Amdt:      States that “Nothing in this Act or the amendments made by this Act shall be construed to prevent lawfully conducted surveillance of or grant any rights to an alien not lawfully permitted to be in or remain in the United States.” 

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