Tech Law Journal logo


House Passes Bill to Extend FISA Outside the US Surveillance Authority

September 12, 2012. The House passed HR 5949 [LOC | WW], the "FISA Amendments Act Reauthorization Act of 2012", without amendment, by a vote of 301-118. See, Roll Call No. 569.

Republicans voted 227-7. Democrats voted 74-111. President Obama publicly supported this bill. See, story titled "Obama Backs FISA Bill" in TLJ Daily E-Mail Alert No. 2,446, September 12, 2012.

The Senate has not yet passed its version of the bill, S 3276 [LOC | WW]. Sen. Ron Wyden (D-OR), who opposed the bill in the Senate Intelligence Committee (HIC), has placed a hold on the bill.

This bill would extend for five years government authority to conduct surveillance related to persons "outside" the US, without individualized court approval. Surveillance of persons "outside of the United States" is a term of art that also enables surveillance of persons inside of the US who fall within the protection of the 4th Amendment.

Rep. Lamar Smith (R-TX) stated in the House that "America and its allies continue to face national security threats from foreign nations, spies, and terrorist organizations. Our national security agencies must be able to conduct surveillance of foreign terrorists and others so we can stop them before they disable our defenses, carry out a plot against our country, or kill innocent Americans." See, Congressional Record, September 26, 2012, at Page H5891.

Rep. Zoe Lofgren (D-CA) stated that the 2008 Act "raises several serious constitutional and civil liberties issues that Congress needs to address and has not addressed in this bill".

Rep. Lofgren argued that "Congress should prohibit the Federal Government from intentionally searching for information on a U.S. person in a data pool amassed lawfully under section 702 of FISA -- should such a data ever be amassed--unless the searching official has a warrant."

Section 702 of the FISA, which is codified at 50 U.S.C. ß 1881a, contains the "outside" the US surveillance authority.

Rep. Jerrold Nadler (D-NY) also spoke in opposition. He said that Rep. John Conyers (D-MI) "had an amendment that would have shortened the sunset by 2 years, but we won't even have a chance to consider it, perhaps because some of our Republican colleagues might also want to support such an amendment. As a result, we will not revisit the law until after the end of the next presidential term."

Jerrold NadlerRep. Nadler (at right) also said that "I had an amendment that would have required the Attorney General to make publicly available a summary of each decision of the FISA court and the FISA court of review that includes a significant construction of section 702, which allows warrantless surveillance, with appropriate security redactions and editing."

Rep. Nadler said that "the Republican majority has, once again, told the Members of this House and the American people that it's ``my way or the highway.''"

The Department of Justice (DOJ) and Director of National Intelligence (DNI) have not been forthcoming in reports to Congress, or in testimony before the House Judiciary Committee (HJC) and Senate Judiciary Committee (SJC), regarding how this program is being implemented, and in particular, how many US citizens have had their communications intercepted or accessed.

Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "CCIA joins members of Congress, privacy advocates and others calling for more information about the scope and operation of the FISA program. Itís important for Congress and citizens to understand how these government surveillance powers are being used and how well the DOJ is following measures within the law to protect basic rights and freedoms. It makes little sense to rubber stamp a program ahead of having the information needed to review it -- thatís why we have this review and renewal period."

He added that "The protests over the SOPA bill showed that people deeply care about their privacy and freedom online. Both parties put Internet freedom in their platforms and Republicans even added that personal data should receive full constitutional protection from government overreach. No one will know if we have overreach or not as the implementation of this law has remained so shrouded in secrecy."

The ACLU stated in a release that the program is "unconstitutional" for violating the 4th Amendment. Indeed, the ACLU has brought a judicial challenge to the 2008 Act.

The ACLU's Michelle Richardson stated in this release that the 2008 Act "authorizes the National Security Agency to conduct dragnet surveillance of Americansí international emails and phone calls".