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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]
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[edit]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]
[edit]Legislative history
- 2008-06-20: Passed the U.S. House of Representatives, by a 293 to 129 vote.[8][9]
- 2008-06-26: A Senate vote was delayed by a filibuster spearheaded by Senators Russ Feingold and Chris Dodd.[10] Feingold said the bill threatened civil liberties in the United States.[10] Dodd has said granting retroactive immunity would undermine the rule of law.[10]
- 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]
- 2008-07-10: President George W. Bush signed the bill into law.
[edit]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-daymoney 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]
[edit]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
[edit]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].
[edit]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]
[edit]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].
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