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Week Ending September 29, 2006

H.R.5825 To update the Foreign Intelligence Surveillance Act of 1978.

Under the current 1976 Foreign Intelligence Surveillance Act (FISA) and subsequent amendments, the PATRIOT ACT in particular, electronic surveillance requires a warrant from the special FISA Court judge either before or within 72 hours of the surveillance. The President, having authorized surveillance without a FISA warrant and after refusing to ask for one after the fact, held that the requirement for a court warrant does not apply to him during times of war. After a federal court decision that rebuffed the President’s actions, this bill aims to make clear what electronic surveillance is, who might be subject to it, who may participate in the process and when and for how long the president may authorize electronic surveillance without a warrant and what may be done with that information in particular.

The FISA Act concerned itself primarily with electronic surveillance of overseas targets. Under this amending bill electronic surveillance could be directed at electronic transmissions of anyone who possesses or is reasonably expected to transmit or receive foreign intelligence information while in the US. Authorization in this bill begins with narrowing the target to information transmitted by a foreign power or and agent of the foreign power but expands current law to allow for the surveillance to be conducted on US soil.

What is electronic surveillance?

Electronic surveillance means the installation or use of a surveillance device for the intentional collection of information relating to a person (who is reasonably believed to be in the US) by targeting that person's communications when that person has a reasonable expectation of privacy and a warrant would normally be required for law enforcement to perform the surveillance. The activity is further defined as the intentional acquisition of the contents of any communication, without the consent of a party to the communication (under circumstances in which the person has a reasonable expectation of privacy and a warrant would normally be required for law enforcement to perform the surveillance) if both the sender and all intended recipients are located within the US.

A surveillance device is one that allows surveillance by the Federal Government but does not include any device that extracts or analyzes information from data already lawfully acquired by the Federal Government. Consequently, data-mining techniques that gather and scour massive batches of electronic communication data for indications of terrorist activities is not considered electronic surveillance, may not be impacted by this bill's limitations providing the data scoured is lawfully obtained by the US government.

Who is and who is not authorized or responsible for electronic surveillance?

The bill separates businesses and individuals who may assist the Federal Government with electronic surveillance activities from the entities authorized and responsible for conducting the surveillance. The US Attorney General may require by written certification any person with authorized access to electronic communications or equipment used to transmit or store electronic communications or equipment used to transmit or store that communications to provide information, facilities or technical assistance necessary to accomplish authorized electronic surveillance to an official designated by the President for a period of up to one year provided the Attorney General certifies in writing, under Oath, that the act of providing the information, facilities or technical assistance does not constitute electronic surveillance.

The Attorney General may require a person providing the information, facilities, or technical assistance to provide the information, facilities or technical assistance in such a manner as will protect the secrecy of the act of providing the information, facilities or technical assistance and produce a minimum of interference with the service that person is providing his or her customers. That person, following security procedures approved by the Attorney general and the Director of National Intelligence may maintain any of the records concerning the surveillance, the information, facilities or technical assistance provided if that person so desires. The person providing the information, facilities or technical assistance shall be compensated at the prevailing rate.

The President may also designate an official who may authorize electronic surveillance of international radio communications of a diplomat or diplomatic mission or post of the government of a foreign country in the US in accordance with procedures approved by the Attorney General.

Getting the Warrant

The bill specifies that among other requirements already established for obtaining a warrant the government must include a statement of the basis for the certification that the information sought is the type of foreign intelligence information designated, but the provision identifying the means by which the surveillance will be effected is removed from FISA law.

Surveillance without a warrant

The Attorney General may authorize the emergency deployment of electronic surveillance if he / she determines that an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information that needs attention before an order authorizing such surveillance can, with due diligence be obtained. The Attorney General must determine that the factual basis for issuance of an order exists and must inform the FISA judge at the time that the decision has been made to employ emergency surveillance, and makes an application for a warrant not more than 120 hours after he / she authorizes that surveillance.

If an emergency authorization is employed the Attorney general shall require that minimum procedures are applied to mean that the surveillance itself only applies to specific targets and is not an authorization of a broad surveillance area. The surveillance must terminate when the information is obtained or after the 120 hours without a warrant expires or if the application for the warrant is denied, whichever is earliest. Any information gathered without warrant and if a warrant is denied may not be received in evidence or otherwise disclosed in trial hearing or other proceedings or before any court, grand jury, department, office, agency, regulatory body, legislative committee or other authority of the US, a State or political subdivision. Any information concerning a US person gathered in such a surveillance scenario may be disclosed in any other manner without consent of the person except with the approval of the Attorney general if the information dictates a threat of death or serious bodily harm to any person.

The President’s authority during times of attack

Following a terrorist attack on the US the President, acting through the Attorney General may authorize electronic surveillance without an order to acquire foreign intelligence for a period not to exceed 45 days if the President notifies each member of the congressional intelligence committees and a judge having jurisdiction over surveillances that the US has been the subject of a terrorist attack, identifies the terrorist organizations or affiliates of terrorist organizations believed to be responsible for the attack. The President may then extend his authority for additional 45 day periods through the same notification procedures, apparently, indefinitely.

After a terrorist attack on the US surveillance of individuals is covered allowing the president or an official designated may authorize surveillance of an individual providing the president determines that there is reasonable belief that such a person is communicating with a terrorist organization or an affiliate of a terrorist organization that is reasonable believed to be responsible for the terrorist attack and the information obtained from the electronic surveillance may be foreign intelligence. The authorization of surveillance on such an individual without a court order may continue for no more than 90 days unless the president through the Attorney General certifies to congressional intelligence committees that the continuation is vital to the national security, describes the circumstances that prevented the Attorney General from obtaining an order, describes the reasons for believing the US person is affiliated with or in communication with a terrorist organization reasonably believed to be responsible for the attack and describes the foreign intelligence information derived from the surveillance.

Congressional oversight

The bill specifies the House Permanent Select Committee on Intelligence and the Select Committee on Intelligence of the Senate as the committees with oversight.

For more information on this subject and to review the provisions of the 1976 Act visit our Legislation in the Spotlight pages here

Sponsor: Rep. Heather Wilson (R-NM-1^st)

Vote: Passed House 232 to 191 (RC 502) September 28, 2006. A Motion to Recommit the bill failed 202 to 221 (RC 501) September 28, 2006

Cost to the taxpayers: No discernible cost

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