In a 301 to 118 decision, the US House of Representatives has voted in favor of the FISA Amendments Act Reauthorization Act of 2012, a bill which will extend the US government's previously established warrantless wiretapping programs for the next five years. The bill preserves far-reaching and highly controversial enhancements to government surveillance powers granted under amendments to the Foreign Intelligence Surveillance Act (FISA) in 2008, and has been met with considerable resistance from privacy groups and members of Congress on both sides of the aisle.
FISA was originally tasked with preventing American citizens from being spied on following a 1978 scandal that found Richard Nixon's administration using US intelligence agencies to target activists and political opponents. But those protections have since been severely eroded, first by the USA Patriot Act in 2001, and again by the FISA Amendments Act of 2008, greatly expanding government surveillance powers to allow warrantless wiretapping of phone, email, and other communications.
Today, the Department of Justice filed a petition requesting the Supreme Court to overturn an appellate court ruling that allowed a lawsuit filed by the ACLU that challenges the constitutionality of the 2008 FISA Amendments Act to go forward. The FISA Amendments Act, signed into law in 2008 allows unprecedented surveillance of Americans’ international communications with none of the safeguards that the Constitution requires. Little is known about how the Act has been used. In response to a Freedom of Information Act lawsuit filed by the ACLU, the government revealed that every six-month review of the Act had identified “compliance incidents,” suggesting either an inability or an unwillingness to properly safeguard Americans’ privacy rights. The government has withheld the details of those “compliance incidents,” however, including statistics relating to abuses of the Act. The Act is scheduled to sunset in December 2012, and the ACLU is calling for amendments that would prohibit dragnet surveillance, require the government to be more transparent about how the law is being used, and place stronger restrictions on the retention and dissemination of information that is collected. Full story here.
Leave it to Senator (!) Al Franken to remind DOJ officials of the Fourth Amendment in discussing the FISA (Foreign Intelligence Surveillance Act) Amendments upholding warrantless "roving" wiretapping. A roving wiretap is a wiretap specific to the United States that follows the surveillance target. The Patriot Act greatly expanded roving wiretapping.
Here is an excerpt from a great article from Cato @ Liberty that details the difference between roving wiretaps, Title III wiretaps, and the Fourth Amendment. Or as appellate Judge Sydney Thomas asked: "What happened to the Fourth Amendment? Was it repealed somehow?"
To understand the reasons for potential concern, we need to take a little detour into the differences between electronic surveillance warrants under Title III and FISA. The Fourth Amendment imposes two big requirements on criminal warrants: “probable cause” and “particularity”. That is, you need evidence that the surveillance you’re proposing has some connection to criminal activity, and you have to “particularly [describe] the place to be searched and the persons or things to be seized.” For an ordinary non-roving wiretap, that means you show a judge the “nexus” between evidence of a crime and a particular “place” (a phone line, an e-mail address, or a physical location you want to bug). You will often have a named target, but you don’t need one: If you have good evidence gang members are meeting in some location or routinely using a specific payphone to plan their crimes, you can get a warrant to bug it without necessarily knowing the names of the individuals who are going to show up. On the other hand, though, you do always need that criminal nexus: No bugging Tony Soprano’s AA meeting unless you have some reason to think he’s discussing his mob activity there. Since places and communications facilities may be used for both criminal and innocent persons, the officer monitoring the facility is only supposed to record what’s pertinent to the investigation.
When the tap goes roving, things obviously have to work a bit differently. For roving taps, the warrant shows a nexus between the suspected crime and an identified target. Then, as surveillance gets underway, the eavesdroppers can go up on a line once they’ve got a reasonable belief that the target is “proximate” to a location or communications facility. It stretches that “particularity” requirement a bit, to be sure, but the courts have thus far apparently considered it within bounds. It may help that they’re not used with great frequency: Eleven were issued last year, all to state-level investigators, for narcotics and racketeering investigations.
Surveillance law, however, is not plug-and-play. Importing a power from the Title III context into FISA is a little like dropping an unfamiliar organism into a new environment—the consequences are unpredictable, and may well be dramatic. The biggest relevant difference is that with FISA warrants, there’s always a “target”, and the “probable cause” showing is not of criminal activity, but of a connection between that target and a “foreign power,” which includes terror groups like Al Qaeda. However, for a variety of reasons, both regular and roving FISA warrants are allowed to provide only a description of the target, rather than the target’s identity. Perhaps just as important, FISA has a broader definition of the “person” to be specified as a “target” than Title III. For the purposes of criminal wiretaps, a “person” means any “individual, partnership, association, joint stock company, trust, or corporation.” The FISA definition of “person” includes all of those, but may also be any “group, entity, …or foreign power.” Some, then, worry that roving authority could be used to secure “John Doe” warrants that don’t specify a particular location, phone line, or Internet account—yet don’t sufficiently identify a particular target either. Congress took some steps to attempt to address such concerns when they reauthorized Section 206 back in 2005, and other legislators have proposed further changes—which I’ll get to in a minute. But we actually need to understand a few more things about the peculiarities of FISA wiretaps to see why the risk of overbroad collection is especially high here.
In part because courts have suggested that the constraints of the Fourth Amendment bind more loosely in the foreign intelligence context, FISA surveillance is generally far more sweeping in its acquisition of information.
"A bipartisan congressional consensus seems to be emerging: First, the Bush administration's eavesdropping program (or something like it) should be continued to try to avert Al Qaeda attacks. Second, such spying should be subjected to oversight by Congress and the courts, regardless of whether President Bush wants it to be.
What kind of oversight? And how should Congress update the Foreign Intelligence Surveillance Act of 1978 to deal with the unprecedented magnitude of the internal security threat posed by jihadists who covet doomsday weapons? If we get the answers wrong, we will end up with weaker defenses against terrorism, insufficient protections against the abuse of civil liberties, or both."
