Tech Law Journal logo

Senate Approves Bill to Extend FISA Outside the US Warrantless Intercept Authority

December 28, 2012. The Senate passed HR 5949 [LOC | WW], the "FISA Amendments Act Reauthorization Act of 2012", by a vote of 73-23. See, Roll Call No 236.

The House passed this bill on September 12, 2012. It is now ready for President Obama's signature. He announced his support for this bill back in September. See, story titled "Obama Backs FISA Bill" in TLJ Daily E-Mail Alert No. 2,446, September 12, 2012.

See also, related stories in this issue:

Introduction. This short bill merely extends 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.

This warrantless "outside" of the US surveillance authority was enacted as part of HR 6304 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008". It is Public Law No. 110-261. The 2008 Act provides that this "outside" of the US authority sunsets on December 31, 2012.

The Senate rejected four amendments on roll call votes on December 27 and 28.

The House Republican leadership brought this bill to the House floor in September under a closed rule, thereby allowing no amendments to be considered. See, story titled "House Rules Committee Allows No Amendments to FISA Surveillance Bill" in TLJ Daily E-Mail Alert No. 2,446, September 12, 2012.

House Democrats had sought to offer three amendments. One would have shortened the extension. Another would have required the Attorney General to publish an unclassified summary of each FISA body opinion that includes a significant construction or interpretation of Section 702. A third would have expanded Congressional reporting requirements.

Outside the US Surveillance. Section 702 of the Foreign Intelligence Surveillance Act (FISA), which is codified at 50 U.S.C. 1881a, contains the "outside" the US surveillance authority.

This section, which was enacted by the 2008 Act, allows federal surveillance, without individualized court approval, under the FISA, of people believed to be outside of the US. More specifically, it pertains to "the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information".

However, US citizens are located abroad, persons abroad communicate with persons inside the US, and those conducting surveillance often do not know the location of the persons they are attempting to surveil. Hence, this provision enables the government to conduct warrantless wiretaps and other surveillance of US citizens located in the US when communicating with persons whom the government believes are abroad.

Foreigners located outside the US are not protected by the 4th Amendment. The US government can wiretap them at will without court approval without violating US law. However, the 2008 Act authorizes surveillance that also results in the interception of communications of persons who are protected by the 4th Amendment.

It should be noted that the provision in the 2008 Act does require a court order. However, it allows broad generalized orders. It allows orders that cover entire surveillance programs, without identification or description of any person, phone, or email account. The 4th Amendment requires individualized orders. That is, it requires orders "particularly describing the place to be searched, and the persons or things to be seized".

The 2008 Act also contains some limitations on this broad surveillance authority. For example, the government "may not intentionally target any person known at the time of acquisition to be located in the United States" under this authority.

Reaction. The American Civil Liberties Union (ACLU) has challenged the constitutionality of the 2008 Act. It stated in a release on December 28 that this is an "unconstitutional spying bill that violates the Fourth Amendment and gives vast, unchecked surveillance authority to the government". The ACLU also assigned blame to former President Bush, but not to President Obama. Obama voted for the 2008 Act as a Senator, and announced his support for its extension.

The Electronic Frontier Foundation (EFF) stated in a release that "Incredibly, the Senate rejected all the proposed amendments that would have brought a modicum of transparency and oversight to the government's activities, despite previous refusals by the Executive branch to even estimate how many Americans are surveilled by this program or reveal critical secret court rulings interpreting it."

The Cato Institute's Julian Sanchez complained in a December 28 audio [12:40] that the Senate delayed consideration until days before expiration, and then proceeded under "manufactured urgency".

See also, story titled "House Judiciary Committee Approves FISA Bill" in TLJ Daily E-Mail Alert No. 2,399, June 19, 2012, and stories titled "Senate Considers Bill To Extend FISA Outside the US Warrantless Wiretap Authority", "House Judiciary Committee Takes Up Bill To Extend FISA Outside the US Warrantless Wiretap Authority", and "Commentary: Warrantless Wiretaps and Senate Secrecy" in TLJ Daily E-Mail Alert No. 2,396, June 14, 2012.

(Published in TLJ Daily E-Mail Alert No. 2,499, December 30, 2012.)