I'll See Your Wiretap and Raise you Weapons of Mass Destruction: FISA 2008 Analysis

In 1978, Congress passed the Foreign Intelligence Surveillance Act (50 USC § 1801) which was temporarily overridden by the Protect America Act of 2007 (PL 110-55). The Protect America Act was passed as a short-term bill that would legalize what the President was doing illegally by extending Executive powers over wiretapping to allow for wiretaps without warrant. The clarification on this was that warrentless wiretaps were allowed when the target was a non-US citizen outside the United States.

Now that Protect America has expired (it expired back in February), Congress has passed an Amendment Act to the original FISA bill (EFF has a copy of the bill). I’ve read all 114 pages of the bill, as torturous as an exercise as that is, and thought I would point out some of the provisions. This bill is very important for those of us in technology.

Emergency Orders

FISA78 provided for emergency orders where, if the Attorney General deemed an immediate (and urgent) search or action was required, he could submit an application for warrant as late as 72 hours after the action was executed. This allowed flexibility for law enforcement and counterterrorism without violating 4th Amendment protections against illegal search and seizure.

FISA2008 extends this emergency window to seven days.

If the Attorney General and the Director of National Intelligence make a determination under subsection (c)(2) and time does not permit the submission of a certification under this subsection prior to the implementation of an authorization under subsection (a), the Attorney General and the Director of National Intelligence shall submit to the Court a certification for such authorization as soon as practicable but in no event later than 7 days after such determination is made.

Dispersing of the Legislative Authority

Applications for warrants, in FISA78, were required to be approved by the Senate. This was sound practice and consistent with Constitutional separation of powers. It provided a check-valve against executive abuse. FISA2008 allows for the Senate or the Deputy Director of the FBI to authorize these applications, opening the door to executive branch abuse.

Section 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804) is amended by striking “Senate””” and inserting “Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official-” [Amd. Sec. 104(1)(D)(ii)]

Targeting US Citizens Outside the United States

U.S. Citizens were expressly exempted from targeting in FISA78. In fact, FISA78 was written with wording directed specifically at “Foreign Powers”. FISA78 was safe. FISA2008 makes it entirely possible for the FISC (Foreign Intelligence Surveillance Court) to authorize direct targeting of U.S. citizens.

No element of the intelligence community may intentionally target, for the purpose of acquiring foreign intelligence information, a United States person reasonably believed to be located outside the United States under circumstances in which the targeted United States person has a reasonable expectation of privacy and a warrant would be required if the acquisition were conducted inside the United States for law enforcement purposes, unless a judge of the Foreign Intelligence Surveillance Court has entered an order with respect to such targeted United States person or the Attorney General has authorized an emergency acquisition pursuant to subsection (c) or (d), respectively, or any other provision of this Act. [Sec. 704(a)(2)]

Telco Immunity

The biggest problem, from the view of the technology community, is the Get Out of Jail Free card given to the telecoms/ISPs. See, currently, an ISP could be sued or at least be in jeopardy of violation of their own Terms of Service if they disclosed information to the government without warrant, etc. The telcos also don’t have a monetization opportunity with current rules. The government serves a subpoena, the ISP hands over data.

Under FISA2008, not only do ISPs get immunity from any kind of lawsuit involving a government request for data, but they can now make money by doing so. The law provides that the government should pay “prevailing rates” for the use of facilities and information. Sounds like a business opportunity, if you ask me. In essence, the opportunity for corruption is so rampant here that we might as well liken this sort of thing to awarding no-bid contracts.

No cause of action shall lie in any court against any electronic communication service provider for providing any information, facilities, or assistance in accordance with a directive issued pursuant to paragraph (1). [Sec. 702(h)(3)]

Now, I’m a fan of FISA. 1978. I’m a Constitutionalist. I’m a rule of law kind of guy. I’m a separation of powers kind of guy. I think the judicial branch exists to provide oversight over the executive branch, among other things. So I’m a fan of making the government jump through hoops, also recognizing that there are legitimate needs for the provisions of FISA. Rare, but they do exist.

So when I heard about the brouhaha over Obama cautiously pledging to vote for the bill, I couldn’t understand why anyone would mind ensuring the President had some checks and balances. After reading the bill itself, I can see the problems. I really like Washington Monthly’s analysis of this and agree that the bulk of the attention is being focused on telcos. I guess that’s because all of us bloggers are causing a stink over soemthing that directly affects us. However, the rest of the bill is as important, if not more.

My favorite addition to the new FISA bill has to do with Weapons of Mass Destruction. Section 101 of the original bill is added to with, just for the heck of it, definitions of WMDs which are given equivalent representation alongside “Sabotage” and “International Terrorism”.

The options we have on this bill are limited. Both McCain and Obama are planning on supporting it – and yes, I do think the intelligence community needs additional powers. But not at the expense of our freedoms, including a “reasonable expectation of privacy”. The barriers between us and the government are getting shorter.

Your thoughts?

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