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H.R. 6304 — FISA Amendments Act of 2008: New Law Expands Government Surveillance Powers

Commentary First Amendment Fourth Amendment

H.R. 6304 — FISA Amendments Act of 2008

Full Text of Enrolled Bill
Senate Vote Summary Summary

On July 9, the Senate passed H.R. 6034, the FISA Amendments Act of 2008, and President George W. Bush signed it into law the following day. The new law modifies the Foreign Intelligence Surveillance Act of 1978 (“FISA”) to expand (subject to certain new checks) the federal government's surveillance powers and retroactively immunize telecommunication companies that cooperated with the warrantless wiretapping program brought to light in 2005.

The New York Times summarizes the politics surrounding the FISA issue, in which presumptive Democratic nominee for president Barack Obama's “yea” vote attracted scorn from some Democrats.

The Electronic Frontier Foundation (PDF), a longtime opponent of President's surveillance program, calls Section 202 an immunity “compromise” in name only.

Orin Kerr, writing at The Volokh Conspiracy, criticizes as “misleading” media coverage that ignores the law's new procedural safeguards (as compared to last year’s less restrictive Protect America Act (“PAA”)).

On the issue of immunity, Charlie Reina (writing at the Huffington Post), regrets that the public will never know who was monitored or which companies cooperated with the original warrantless wiretapping requests.

The bill’s history illustrates the controversy that surrounded the issue. In February, the Senate passed a bill similar to 6304, which included retroactive immunity provisions. In March, the House passed an alternative bill that did not include immunity for telecommunications companies and would have instituted additional checks on the executive’s ability to eavesdrop. However, under the threat of veto, the House on June 20 passed H.R. 6304, sponsored by Rep. Silvestre Reyes (D-TX), which provided for a “compromise” immunity procedure. Under it, the federal courts must dismiss any suit in which the Attorney General certifies that the defendant telecom acted upon a written notice indicating that the request was “authorized by the President and determined to be lawful.” Following a filibuster, the Senate passed H.R. 6304 this week, 69-28.

Apart from the debate over retroactive immunity, there are substantial questions about what kind of wiretapping regime the FISA Amendments Act has created. Relative to the Protect America Act of 2007, passed as a six-month stopgap, the text of the new law includes more procedural checks and an increased opportunity for judicial review.

Significantly, it requires a court order to eavesdrop on US persons abroad, and it instructs Foreign Intelligence Surveillance Courts to review statutory compliance de novo (See Orin Kerr’s analysis).

On the other hand, Marty Lederman notes that the new Act (like the PAA, but in contrast to the original FISA) permits intercepting foreign communications received in the US without a warrant — the very gravamen of the warrantless wiretapping program that first spurred Congress to reconsider the issue of surveillance. Additionally, Timothy B. Lee faults the law for what it doesn’t contain: a functional mechanism to prevent the abuse of unreviewable executive “authorizations,” nor one that will prevent the executive from stalling the review process while continuing to listen in.

In sum, privacy activists worry that the new law has unduly and unaccountably expanded domestic spying powers, and some legally-minded observers see the FISA Amendments Act as a naked attempt to aggrandize the executive branch. President Bush, on the other hand, has called it “vital” to protect American lives. The new law's validity may soon be tested in court, as the American Civil Liberties Union, The Nation, and a host of other groups have filed a complaint in the Southern District of New York, seeking to have it declared contrary to the First and Fourth Amendments.

Related JOLT articles: Amitai Etzioni, Implications of Select New Technologies for Individual Rights and Public Safety, 15 Harv. J.L. & Tech. 257 (2002) (applying the national security vs. civil liberties debate to several new technologies and describing several forms of accountability); Christopher Woo and Miranda So, The Case for Magic Lantern, 15 Harv. J.L. & Tech. 521 (2002) (arguing for a limited use of keylogging software within the FISA framework of the time).