|Reform of the National Security Surveillance Laws and Procedures|
I. The Problem
The Foreign Intelligence Surveillance Act (FISA) as enacted in 1978 permitted targeted surveillance to collect foreign intelligence information and protect national security. The PATRIOT Act upset the balance established in FISA and permitted surveillance to be conducted in criminal investigations without a showing of criminal probable cause to a judge. The PATRIOT Act also permitted roving FISA wiretaps that violate the specificity and nexus requirements of the Fourth Amendment. Roving FISA wiretap orders are not required to specify the target or the communications facility (such as a telephone) to be surveilled. The FISA Amendments Act of 2008 further diminished FISA safeguards. The FAA permits the interception in the U.S. of communications that Americans have with non-citizens who are abroad without adequate judicial supervision of such surveillance. The FAA also permits that surveillance to occur on a massive scale: if resources permit, the FISA Amendments Act allows the NSA to collect in bulk the international communications that Americans have with non-citizens abroad.
Moreover, even with the significant revisions to the FISA, President Bush asserted virtually unlimited authority under Article II of the Constitution, and secretly authorized the NSA to engage in a warrantless wiretapping program that violated FISA and the Constitution. Telecommunications carriers that assisted in that surveillance program were granted immunity from civil liability, thus leaving those whose rights were violated without any legal remedy against the carriers and inviting them to assist with unlawful surveillance in the future.
II. Proposed Solutions
A. Guiding Principles
The Fourth Amendment standards articulated in FISA and related federal wiretap laws, such as ECPA, should govern intelligence surveillance conducted in the United States. The President is bound by FISA, and a court order based on probable cause should be required when surveillance is conducted in the U.S. for intelligence purposes. Telecommunications carriers must be expected to comply with statutory standards to prevent misuse of wiretap authority. They can provide a backstop for illegal surveillance because surveillance usually cannot be conducted without their help.
B. Proposed Measures
1. Congressional leaders should commence a comprehensive investigation of domestic intelligence activities. The investigation should seek to uncover illegal or inappropriate surveillance and prevent it from recurring, and it should include an assessment of the effectiveness of new authorities granted in the USA PATRIOT Act and the FISA Amendments Act. This review should provide the basis for congressional consideration of the USA PATRIOT Act provisions that would otherwise expire on December 31, 2009. The review may also identify other civil liberties issues that warrant changes to FISA.
2. President-elect Obama should announce early in the first 100 days of his administration that it is the policy of his administration to:
i. Adhere to FISA’s judicial warrant requirements when engaging in surveillance in the United States;
ii. Comply fully with all intelligence surveillance statutes, and specifically with FISA, and to assert no power under Article II of the Constitution to engage in domestic intelligence gathering that does not fully comply with the law;
iii. Publicly disclose the government documents, including the opinions of the DOJ Office of Legal Counsel, that provided the legal basis for the NSA’s warrantless surveillance program;
iv. Direct the Attorney General to withdraw the government’s motion to dismiss pending privacy litigation brought against telecommunications carriers for assisting with unlawful warrantless surveillance, or seek a stay of those proceedings until such time as the Attorney General, based on review of the Inspectors’ General reports required by the FISA Amendments Act, determines that a grant of immunity is appropriate;
v. Refrain from using the FISA Amendments Act to engage in bulk collection of Americans’ communications, whether domestic or international; and
vi. Cooperate fully with any investigation of post 9-11 warrantless surveillance.
3. As President, Mr. Obama should work with Congress to amend FISA in his first year in office to:
i. Ensure that surveillance authorized under FISA does not undermine the Fourth Amendment’s requirement of probable cause of crime and that it complies with all Fourth Amendment standards;
ii. Repeal Title II of the FISA Amendments Act.
iii. Strengthen FISA’s exclusivity provisions to ensure that telecommunications firms that provide assistance with surveillance in the future are given immunity only when the surveillance is authorized by the FISA court or is conducted under a specific, articulated statutory exception to the court order requirement;
iv. Require that applications for roving intelligence wiretaps specify either the target of surveillance or the telephone or other communications facility to be surveilled;
v. Amend the FISA Amendments Act to require judicial authorization of surveillance and more searching judicial review of such surveillance, and to bar bulk collection of Americans’ international communications;
vi. Implement additional civil liberties safeguards, including possibly, civil liberties recommendations that may be contained in the Inspectors General report on the FISA Amendments Act, due in July 2009; and
vii. Improve public reporting and transparency so that the effectiveness of FISA surveillance can be evaluated.
4. President Obama should support inclusion of many of these reforms in any legislation that is proposed to reauthorize the FISA provisions that expire at the end of 2009.
American Association of Law Libraries
American Library Association
Association of Research Libraries
Bill of Rights Defense Committee (BORDC)
Electronic Frontier Foundation (EFF)
Government Accountability Project
National Coalition Against Censorship
South Asian Americans Leading Together
U.S. Bill of Rights Foundation
* These groups and individuals support the general principles expressed and the general policy thrust and judgments in the policy proposals described above. The allies listed do not necessarily endorse the specific language in every proposed solution, but they do agree that the proposals reflect the general principles that should govern policy in this area. Please contact the individuals and organizations listed in this section for more information
IV. Counter-Arguments and Rebuttal:
Agencies of the federal government engaged in intelligence surveillance, such as the FBI/Department of Justice, the National Security Agency, and the Office of the Director of National Intelligence will likely oppose measures to require more judicial oversight of their surveillance activities. However, history has shown that in many cases, judicial oversight is the measure most likely to prevent abuse of surveillance powers.
V. Recommended Documents for Further Information:
a. Piercing the “Historical Mists” of FISA, 17 STAN. L. & POL’Y REV. 101 (2006), available at http://2009transition.org/liberty-security/administrator/index2.php?option=com_docman§ion=documents&task=download&bid=7
b. The Constitution Project, Statement on the National Security Agency’s Domestic Surveillance, available at http://www.constitutionproject.org/libertyandsecurity/article.cfm?messageID=401&categoryid=6
c. Electronic Privacy Information Center: Foreign Intelligence Surveillance Act
d. Electronic Privacy Information Center: FISA Orders 1979-2007
e. Center for Democracy & Technology: FISA and warrantless snooping: http://www.cdt.org/security/nsa/briefingbook.php
f. Electronic Frontier Foundation: Telecom immunity in the FISA Amendments Act: http://www.eff.org/issues/nsa-spying/archive
g. Electronic Frontier Foundation: NSA spying and litigation related to it:
h. The President’s lack of authority under Article II of the Constitution to engage in warrantless surveillance:
i. Letter from law professors to Congress questioning the legality of the NSA warrantless surveillance program (Jan. 9, 2006)
ii. DOJ Memorandum in support of the NSA warrantless surveillance program (Jan. 19, 2006)
iii. Second letter from law professors to Congress responding to and questioning DOJ’s analysis of the legality of NSA warrantless surveillance (Feb. 2, 2006)
i. Documents that President-elect Obama should consider releasing to the public, with classified information redacted:
i. List of Most Wanted Surveillance Documents compiled by Center for
j. Jim Dempsey, Center for Democracy & Technology, Does “Targeting” Warrant the Vacuum Cleaner, (June 25, 2008) at http://blog.cdt.org/2008/06/25/does-targeting-authorize-the-vacuum-cleaner/
k. Congressional Research Service reports on FISA:
i. The Foreign Intelligence Surveillance Act: An Overview of the Statutory
ii. The Foreign Intelligence Surveillance Act: An Overview of Selected
l. Books about executive power that have information about warrantless wiretapping:
i. Jack Goldsmith, The Terror President (2007)
ii. Charlie Savage, The Return of the Imperial Presidency (2007)
m. Text of Foreign Intelligence Surveillance Act – 50 U.S.C. §§ 1801 et seq. (current as of Jan. 2, 2006)
i. 50 U.S.C. § 1801-1811 – Electronic Surveillance
ii. 50 U.S.C. § 1821-1829 – Physical Searches
iii. 50 U.S.C. § 1841-1846 – Pen Registers and Trap and Trace
iv. 50 U.S.C. § 1861-1863 – Access to Certain Business Records for
v. 50 U.S.C. § 1871 – Reporting Requirement
*These statutory provisions are current as of Jan. 2, 2006, the latest published volume of the U.S. Code. The provisions were amended in the 110th Congress by the FISA Amendments Act of 2008 (H.R. 6304, Pub. L. 110-261), signed into law on July 10, 2008.