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USA: EPIC Report on: Bill amending the Foreign Intelligence Surveillance Act (FISA)

01 March 2008

Electronic Privacy Information Center (EPIC), Washington, D.C. report on:

House Passes Wiretap Bill, Rejects Telecom Immunity

This week the House passed another version of a bill amending the Foreign Intelligence Surveillance Act (FISA). The bill, H.R. 3773, rejects administration demands for automatic retroactive Telecom immunity, establishes a bipartisan commission to investigate the President's warrantless wiretapping, and provides for greater oversight of surveillance targeted against persons overseas. The House leadership had previously rejected attempts to strong-arm it into accepting wholesale a Senate bill, which provided for telecom immunity and had weaker oversight of surveillance. This bill marks the second house version of FISA reform, a previous one -- the RESTORE Act -- having been passed last fall and rejected by the Senate. FISA establishes a separate legal regime for "foreign intelligence" surveillance distinct from ordinary law enforcement surveillance. FISA can also be used to obtain some business records.

The House version contains some steps towards and accountability and eases the progress of lawsuits concerning the president's warrantless surveillance program. It allows telecommunications companies to attempt to exonerate themselves by providing classified evidence to a court. Proponents of immunity had argued that the state secrets privilege prevented the telecommunications companies from adequately defending themselves. The bill also creates a bipartisan commission to investigate warrantless wiretapping. The commission would have the power to inspect federal agency documents, and issue subpoenas. The commission would be able to enforce the subpoenas in federal courts. The passage of the House bill followed a secret session of the House, which administration proponents had demanded. Only five such sessions have occurred, the last taking place 25 years ago.

The FISA debates spring from a continued attempt to expand the president's wiretapping powers. FISA was amended last summer by the Protect America Act (PAA), which expired in February. The PAA removed some surveillance from the limited FISA court review, allowed the government to create more surveillance programs with limited review, and immunized from lawsuits telecommunications companies that participated in these programs. Both the Senate and House have passed bills continuing PAA authorities, but they differ in how much oversight is granted and in whether there will be retroactive immunity for telecommunication companies that participated in the president's warrantless surveillance program.

The President has vowed to veto any legislation that does not include retroactive immunity for telecommunications companies.

House Bill, H.R. 3773: http://thomas.loc.gov/cgi-bin/bdquery/z?d110:h.r.03773

Secret Sessions of Congress: A Brief Historical Overview: http://opencrs.com/document/RS20145/2007-05-30%2000:00:00

Comparison of RESTORE Act, Senate bill, and Revised House bill: http://majorityleader.house.gov/docUploads/side-by-side-10Mar08.pdf

EPIC's Page on FISA: http://epic.org/privacy/terrorism/fisa/