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Week Ending October 19, 2007

H.R.3773 To amend the Foreign Intelligence Surveillance Act of 1978 to establish a procedure for authorizing certain acquisitions of foreign intelligence, and for other purposes.

The Foreign Intelligence Surveillance Act of 1978 was created to authorize the surveillance of telephone and other electronic communications of non-US persons outside the US. The Act created the FISA Court to provide approval and oversight of those surveillance activities.

Congress approved some amendments to the 1978 law in July 2007 but the process was hastily fashioned and the bill amendments were approved with reluctance by some lawmakers concerned that the amendments allowed the government too much freedom to intervene in American’s conversations and e-mails. The primary point of contention has been that the amendments to FISA passed in August allowed for surveillance of US citizens without a court order when receiving foreign communications.

The bill first clarifies that no FISA Court order is necessary for “the acquisition of the contents of any communication between persons that are not United States persons and are not located within the United States for the purpose of collecting foreign intelligence information, without respect to whether the communication passes through the United States or the surveillance device is located within the United States.” That provision essentially allows for intelligence gathering overseas even if the call is routed through the US telecommunications system.

The bill then says that the Director of National Intelligence and the Attorney general must jointly apply for a FISA Court order or extension authorizing surveillance of a non-US person outside the US for the purpose of gathering foreign intelligence. That provision, although sounding similar to the preceding one aims, bill supporters hold, to assure that calls made to or from the US that are subject to surveillance are done with Court oversight to protect privacy rights of US citizens who may have been caught up in the surveillance web.

The DNI and AG may

The application to the Court must establish that:

1. The targets of the surveillance are reasonably believed to be located outside the US and are reasonably believed to be persons that are not US persons,

2.  The acquisition of information involves obtaining foreign intelligence information from a communications provider or custodian or an officer or employee who has access to the communications as they happen, as they are stored or to equipment used to transmit or store the communications,

3. a significant purpose of the acquisition of the information is to obtain foreign intelligence information.

The DNI and AG must describe the procedures that they will use to determine that there is a reasonable belief that the targets are persons outside the US and not US persons, the nature of the information sought, including identity of any foreign power against whom the acquisition will be directed, how the process will be minimized, and the guidelines that will be used when the Federal government seeks to conduct electronic surveillance of a person reasonably believed to be located in the US.

The bill further allows for the surveillance of groups such as al Qaeda and to continues surveillance if one party to the call or e-mail is in the US. The bill also provides that it is not required to identify the specific facilities, places, premises or property at which the acquisition of foreign intelligence will be directed. The Judge must act on an application within 15 days and will approve the application if he finds that the proposed procedures are reasonably designed to determine whether the targets are outside the US and not US persons, the effort is minimalized and, if the surveillance involves a person believed to be within the US, that the proper applications are filed.

When the application is approved the Court will issue an order to the communications provider to cooperate with the surveillance. Communications providers who produce telecommunications information would be compensated at the prevailing rate for providing the information, facilities or assistance pursuant to a court order and the used of the facilities and equipment is to be done with a minimum of interference with the services that the provider is providing the target of the surveillance.

The DNI and AG may authorize the emergency acquisition of foreign intelligence information for a period of no more than 45 days if they can jointly determine that:

An emergency situation exists with respect to an acquisition before an order approving the acquisition can be, with due diligence, obtained, and

The targets of the acquisition are reasonably believed to be outside the US and not US persons.

Under that emergency provision the AG can require a communications provider to produce the data and access to the facilities in which the data passes through or is stored, however, if the Court does not approve the emergency application, the communications provider must stop the acquisition process.

The bill did not grant retroactive immunity to communications providers for past violations of law, but that provision was modified. Various comments and press reports stated that the Bush administration required that phone companies be exempt from legal liability for having provided information to the Federal government after the 9-11 attacks without court warrants. The phone companies are facing lawsuits based on alleged privacy trespasses. Reportedly, those lawsuits would be dropped under the modified version of the bill.

A report to Congress is required to explain:

The number of targets of an acquisition under an order that were later determined to be located in the United States;

The number of persons located in the United States whose communications have been acquired under the order;

The number and nature of reports disseminated containing information on a United States person that was collected under the order; and 

The number of applications submitted for approval of electronic surveillance for targets whose communications were acquired. Other oversight reports to Congress are required.

The DNI and AG must develop and adopt and maintain a record keeping system on instances where the identity of a US person whose communications were acquired was disclosed by an element of the intelligence community to other federal departments and agencies.

The Justice Department Inspector General is directed to audit all federal programs involving the acquisition of communications conducted without a court order on or after September 11, 1001.

FISA is recognized as the exclusive means by which electronic surveillance may be conducted for gathering foreign intelligence information and that there are no exceptions to that status until a specific statutory authorization is enacted. (Other than amendments to FISA.

This authorization continues until December 31, 2008.

Sponsor:  Rep. John Conyers, Jr. (D-MI-14^th)

Vote:

Cost to the taxpayers: The bill authorizes to be appropriated such sums as are necessary to meet the personnel and information technology demands to ensure the timely and efficient processing of applications and other submissions to the Court, the Inspector General Audit of surveillances without a court order, and the records keeping requirements of the bill.

Earmark Certification:   Not applicable to this bill.

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No reproduction, language translation or distribution without written permission from TheWeekInCongress.com.(TM)