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The FISA Amendments Act of 2008 (also called the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, H.R. 6304, enacted 2008-07-10) is an Act of Congress that amended the Foreign Intelligence Surveillance Act.[1]

Contents

Background

Warrantless wiretapping by the National Security Agency (NSA) was revealed publicly in late 2005 by The New York Times[2] and then discontinued in January 2007. See Letter from Attorney-General Alberto Gonzalez to Senators Patrick Leahy and Arlen Specter, CONG. REC. S646-S647 (Jan. 17, 2007).[3] Approximately forty lawsuits have been filed against telecommunications companies by groups and individuals alleging that the Bush administration illegally monitored their phone calls or e-mails.[4] Whistleblower evidence suggests that AT&T was complicit in the NSA's warrantless surveillance, which could have involved the private communications of millions of Americans.[5] The Foreign Intelligence Surveillance Act makes it illegal to intentionally engage in electronic surveillance under appearance of an official act or to disclose or use information obtained by electronic surveillance under appearance of an official act knowing that it was not authorized by statute; this is punishable with a fine of up to $10,000 or up to five years in prison, or both.[6] In addition, the Wiretap Act prohibits any person from illegally intercepting, disclosing, using or divulging phone calls or electronic communications; this is punishable with a fine or up to five years in prison, or both.[7]

Legislative history

House vote h2008-437 - 293 to 129
Senate vote s2008-168 - 69 to 28
Dodd (D-CT) amendment to remove telecom immunity provisions - failed 32 to 66, vote vote s2008-164
Senators who voted to remove telecom immunity here, but ended up voting for bill with telecom immunity intact: Baucus (D-MT), Casey (D-PA), Obama (D-IL),Whitehouse (D-RI)
  • 2008-07-09: Dodd's amendment calling for a striking of Title II (the immunity provisions) was rejected 66 to 32.[11] The bill itself was then put to a vote and passed 69 to 28.[12]
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Netroots opposition to the bill

A group of netroots bloggers and Representative Ron Paul supporters joined together to form a bipartisan political action committee, Accountability Now, to raise money during a one-day money bomb, which, according to The Wall Street Journal, would be used to fund advertisements against Democratic and Republican lawmakers who supported the retroactive immunity of the telecommunications company.[13]

Provisions

Specifically, the Act:[14]

  • Prohibits the individual states from investigating, sanctioning of, or requiring disclosure by complicit telecoms or other persons.
  • Permits the government not to keep records of searches, and destroy existing records (it requires them to keep the records for a period of 10 years).
  • Protects telecommunications companies from lawsuits for "'past or future cooperation' with federal law enforcement authorities and will assist the intelligence community in determining the plans of terrorists."
  • Removes requirements for detailed descriptions of the nature of information or property targeted by the surveillance.
  • Increased the time allowed for warrantless surveillance to continue from 48 hours to 7 days. (This includes pen registers and trap & trace surveillance.)
  • Requires FISA court permission to wiretap Americans who are overseas.
  • Requires government agencies to cease warranted surveillance of an American who is abroad if said person enters the United States. (However, said surveillance may resume if it is reasonably believed that the person has left the States.)
  • Prohibits targeting a foreigner to eavesdrop on an American's calls or e-mails without court approval.
  • Allows the FISA court 30 days to review existing but expiring surveillance orders before renewing them.
  • Allows eavesdropping in emergencies without court approval, provided the government files required papers within a week.
  • Prohibits the government from invoking war powers or other authorities to supersede surveillance rules in the future.
  • Requires the Inspectors General of all intelligence agencies involved in the President's Surveillance Program to "complete a comprehensive review" and report within one year

Effects

  • The provisions of the Act granting immunity to the complicit telecoms create a roadblock for a number of lawsuits intended to expose and thwart the alleged abuses of power and illegal activities of the federal government since and before the September 11th attacks.[citation needed]
  • Allows the government to conduct surveillance of any person for up to one week (168 hours) without a warrant, increased from the previous 48 hours, as long as the FISA court is notified at the time such surveillance begins, and an application as usually required for surveillance authorization is submitted by the government to FISA within those 168 hours[citation needed].

ACLU Lawsuit

The American Civil Liberties Union (ACLU) filed a lawsuit challenging the FISA Amendments Act of 2008 the same day that it was enacted into law. The case was filed on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations whose ability to perform their work - which relies on confidential communications - could be compromised by the new law.[15] The complaint, captioned Amnesty et al. v McConnell and filed in the United States District Court for the Southern District of New York, argues that the new spying law violates Americans' rights to free speech and privacy under the First and Fourth Amendments to the Constitution.[16]

Comparisons

In an internet broadcasted interview with Timothy Ferriss, Daniel Ellsberg compared the current incarnation of FISA to the East German Stasi[17]. Ellsberg stated that the powers which were currently being given to the federal government through this and other recent amendments to FISA since the September 11th Attacks opened the door to abuses of power and unwarranted surveillance. Unlimited surveillance of the communications and conversations of American citizens by the federal government could be initiated by only the allegation of intent, regardless of fact[citation needed]. Abusive acquisition of information under FISA could conceivably be used to intimidate or suppress organizations or individuals in opposition to the governing administration[citation needed].

See also

References

  1. ^ "U.S. Senate Roll Call Vote Summary, Vote 00168, 100th Congress, 2nd Session". 2008-07-09. http://senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=110&session=2&vote=00168. 
  2. ^ ""Bush Lets U.S. Spy on Callers Without Courts"". NYT's Risen & Lichtblau's December 16, 2005 "Bush Lets U.S. Spy on Callers Without Courts". http://www.commondreams.org/headlines05/1216-01.htm. Retrieved February 18, 2006.  via commondreams.org
  3. ^ http://graphics8.nytimes.com/packages/pdf/politics/20060117gonzales_Letter.pdf
  4. ^ Lichtblau, Eric (2008-06-20). [Deal Reached in Congress to Rewrite Rules on Wiretapping "Senate Votes to Expand Spy Powers"]. The New York Times. Deal Reached in Congress to Rewrite Rules on Wiretapping. Retrieved 2008-11-02. 
  5. ^ "Mark Klein - AT&T WhistleBlower". MSNBC/YouTube. http://youtube.com/watch?v=U_qYGbieoMM. 
  6. ^ "US CODE: Title 50, section 1809. Criminal sanctions". http://www4.law.cornell.edu/uscode/50/usc_sec_50_00001809----000-.html. 
  7. ^ "US CODE: Title 18, section 2511. Interception and disclosure of wire, oral, or electronic communications prohibited". http://www4.law.cornell.edu/uscode/18/usc_sec_18_00002511----000-.html. 
  8. ^ Kane, Paul (2008-06-21). "House Passes Spy Bill; Senate Expected to Follow". Washington Post. http://www.washingtonpost.com/wp-dyn/content/story/2008/06/20/ST2008062001087.html. 
  9. ^ "Final Vote Results For Roll Call 437, June 20, 2008". http://clerk.house.gov/evs/2008/roll437.xml. 
  10. ^ a b c "Senators block consideration of wiretap bill". CNN. 2008-06-27. http://www.cnn.com/2008/US/06/26/senate.fisa/. 
  11. ^ "Vote Summary On Dodd Amendment (No. 5064) to strike title II". senate.gov. 2008-07-09. http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=110&session=2&vote=00164. 
  12. ^ "Vote Summary On A bill to amend the Foreign Intelligence Surveillance Act of 1978 to establish a procedure for authorizing certain acquisitions of foreign intelligence, and for other purposes.". senate.gov. 2008-07-09. http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=110&session=2&vote=00168. 
  13. ^ Schatz, Amy (2008-07-08). "Paul Camp, Liberals Unite On Spy Bill". Wall Street Journal. http://online.wsj.com/article/SB121443403835305037.html?mod=googlenews_wsj. 
  14. ^ Hess, Pamela (2008-07-09). "Senate Immunizes Telecom Firms From Wiretap Lawsuits". The New York Sun. http://www.nysun.com/national/senate-grants-telecom-companies-immunity/81525/. Retrieved 2008-11-02. 
  15. ^ "American Civil Liberties Union : ACLU Sues Over Unconstitutional Dragnet Wiretapping Law". American Civil Liberties Union. 2008-07-10. http://www.aclu.org/safefree/nsaspying/35942prs20080710.html. 
  16. ^ "Amnesty et al. v McConnell Complaint" (PDF). American Civil Liberties Union. 2008-07-10. http://www.aclu.org/pdfs/safefree/faa_complaint_20080710.pdf. 
  17. ^ http://www.youtube.com/watch?v=hIaWdH6XaBM

External links


Source material

Up to date as of January 22, 2010

From Wikisource

Public Law 110-261
by the 110th Congress of the United States
Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008
Pub.L. 110−261, 122 Stat. 2436, H.R. 6304, enacted July 10, 2008.
Note: This is the original legislation as it was initially enacted. Like many laws, this statute may have since been amended once or many times, and the text contained herein may no longer be legally current. Follow the interlinks within the content or check to see What Links Here for more.


110TH UNITED STATES CONGRESS
2ND SESSION

An Act

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

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

Section 1. Short Title and Table of Contents.

(a) SHORT TITLE.—
This Act may be cited as the ``Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008´´ or
the ``FISA Amendments Act of 2008´´.
(b) TABLE OF CONTENTS.—
The table of contents for this Act is as follows:
Sec. 1. Short Title and Table of Contents.
TITLE I — FOREIGN INTELLIGENCE SURVEILLANCE
Sec. 101. Additional Procedures Regarding Certain Persons Outside the United States.
Sec. 102. Statement of Exclusive Means by Which Electronic Surveillance and Interception of Certain Communications may be Conducted.
Sec. 103. Submittal to Congress of Certain Court Orders Under the Foreign Intelligence Surveillance Act of 1978.
Sec. 104. Applications for Court Orders.
Sec. 105. Issuance of an Order.
Sec. 106. Use of Information.
Sec. 107. Amendments for Physical Searches.
Sec. 108. Amendments for Emergency Pen Registers and Trap and Trace Devices.
Sec. 109. Foreign Intelligence Surveillance Court.
Sec. 110. Weapons of Mass Destruction.
TITLE II — PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS
Sec. 201. Procedures for Implementing Statutory Defenses Under the Foreign Intelligence Surveillance Act of 1978.
Sec. 202. Technical Amendments.
TITLE III — REVIEW OF PREVIOUS ACTIONS
Sec. 301. Review of Previous Actions.
TITLE IV — OTHER PROVISIONS
Sec. 401. Severability.
Sec. 402. Effective Date.
Sec. 403. Repeals.
Sec. 404. Transition Procedures.


Approved July 10, 2008.

Legislative History

  • CONGRESSIONAL RECORD, Vol. 154 (2008):
    • June 20, considered and passed House.
    • July 8, 9, considered and passed Senate.
  • WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 44 (2008):
    • July 9, Presidential remarks.

See Also

Executive orders


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