Monday, July 28, 2008

Long Overdue

I have finally gotten through the FISA reform bill. I am not a lawyer, so any of my readings of this legislation may not be completely accurate. There is also the problem that many of the clauses refer back to the original FISA or other laws, which I don't have a copy of. What follows is my best attempt to translate it to somewhat human readable form.

Non-US citizens outside of the US


  • Any surveillance authorized under this section may not target a person in the US -- citizen or not.
  • This legislation also cannot be used to indirectly target someone in the US or a US citizen (can't wiretap person b in France because you want to hear what person A in Houston is saying).
  • The AG and DNI must put into place policies that would prevent the violation of the above conditions, and have those policies approved by Congress and the FISA court

Certifications (similar to warrants, but with lighter requirements):

  • Must be filed for before the surveillance begins.
  • The AG and DNI can determine that "intelligence important to the national security of the United States may be lost or not timely acquired and time does not permit" filing for the warrant in advance. Certifications run under this must be submitted to the FISA court within seven days of the surveillance beginning.
  • FISA court must review certifications within 30 days
  • Certifications must include:
    • A statement that protections described above are in place to prevent improper surveillance.
    • A statement that Fourth Amendment protections are in place
    • A statement that the surveillance is for foreign intelligence purposes using a communication service provider
    • The start date of the surveillance
    • An affidavit from the head of the relevant intelligence agency
    • If the surveillance was started before the FISA court can review the certification, an explanation by the AG/DNI must be included as well.
    • It does NOT need to include a description of how the surveillance will be conducted
  • Valid for one year and can be reauthorized.
  • The certification will be used to force telecoms to provide full assistance to the government, including implementing procedures to ensure the secrecy of the surveillance.
  • Telecoms cannot be sued for following these orders
  • Telecoms can challenge these orders through the FISA court and both the government and telecom can appeal any decision on this challenge up to the Court of Review.
  • Government can also appeal denied certifications. Any surveillance already in process may continue during the appeal process.
  • Accepted certifications must be accompanied by an explanation by the judge for acceptance.

Review procedures:

  • Every six months the AG and DNI must submit an assessment of how well the policies are complied with.
  • The IG will review compliance with the procedures in place and compile a report on each violation.
  • The head of each intelligence agency with access to FISA will report annually to Congress and the court about the IG's findings and describe any new procedures they intend to put in place to reduce future violations.

US Citizens outside the US


  • FISA courts can only authorize wiretapping of US citizens outside of the US.
  • If a citizen returns to US soil, or is discovered to have been in the country, the wiretapping must stop immediately (it can be resumed if the person is reasonably believed to have left again).
  • Review methods are the same as per previous section


  • Must describe the specific information sought
  • The target must be working for a foreign power
    • Evidence backing this up must accompany the request
    • Actions protected by the First Amendment (speech, religion, etc.) are not valid evidence
  • A full description of the method to be used to gain the information must be included (i.e. forced entry, wiretapping (including which telecom will be asked to comply)
  • Information about any previous surveillance of this target must be included.
  • Must specify a time span of the surveillance (not more than 90 days)
  • Requesting officer must swear under oath that the information contained is accurate (the officer's name is attached to the order)
  • Telecoms cannot be sued for actions taken while following these orders
  • AG can authorize an emergency surveillance but:
    • Must inform a FISA judge when he is authorizing it
    • Must file the request no later than seven days after authorizing it
  • If a person is already under warranted surveillance locally, the AG can authorized continued surveillance if the person goes overseas

Previous warrantless wiretapping program

  • Lawsuits against telecoms or other persons can be thrown out if the AG testifies to the district court that:
    • The surveillance was in connection to an intelligence activity between 9/11/2001 and 1/17/2007
    • It was related to preventing a terrorist attack
    • The order was authorized by the president
    • The order was said to be "determined to be lawful"
  • The administration can claim national security interests to prevent information from being released about the program
  • No state can launch an independent investigation into the telecoms' actions
  • The IG of the DOJ, DNI, NSA, and DOD (and any other agency involved) must give a complete review to Congress of this program including:
    • All the determinations used as a basis for the program
    • All legal reviews of the program
    • All communications with the private sector
    • Any interaction with the FISA courts
    • Anything else the IG determines to be relevant
  • The report may include a classified annex, but the main part of the report must be declassified
  • The initial report is due 60 days after authorization of the act, a final report is due in one year

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