CDT Summary of Specter and Wilson FISA Bills

September 13, 2006

Cloaked in terms of judicial review and modernization, the Specter and Wilson bill would permit the National Security Agency to turn its vacuum cleaners on American citizens and create a vast database of information, which the government could data mine at will, outside any judicial or congressional oversight, in a fashion reminiscent of the Total Information Awareness program.

None of these changes is necessary to meet the terrorist threat. In fact, a truly updated and technology neutral approach would permit the government, with a court order, to intercept communications regardless of the sophistication of the terrorists.

While recent attention has focused on White House efforts to push the Wilson bill even further in the direction of unchecked Presidential power, both Specter and Wilson bills in their current form would ratify the President's program and permit warrantless surveillance far beyond anything the President has dared to undertake.

The bills achieve this result in an Alice in Wonderland fashion: they define large categories of electronic surveillance as not being electronic surveillance.

Under the 1978 Foreign Intelligence Surveillance Act, if the collection of information fits within the Act's definition of "electronic surveillance," then it requires a court order or must fall under one of the Act's exceptions.

However, if the recording of conversations and the collection of information is excluded from the definition of electronic surveillance, then it is not covered by the Act, and can be carried on without a warrant and without reporting to Congress.

The radically revamped Specter bill and the Wilson bill would cut back the definition of electronic surveillance with the following results:

• With the sweep of a legislative wand, the bills would make the President's warrantless surveillance program no longer a surveillance program, because it targets suspected terrorists who are outside the United States, even though it collects also the conversations of US citizens on the US end of those communications. The problem with this approach, of course, is that the person on the phone or email in the United States has rights too. That party may be a journalist, an aid worker, or any of a number of other types of totally innocent citizens, yet under the Specter and Wilson bills their conversations and email would be intercepted without a warrant.
• The bills don't stop there. While the President has assured the American public that his program is limited to situations where someone who may be associated with al Qaeda is overseas, calling into the US, the Specter and Wilson bills would authorize warrantless interception of every single call into and out of the United States, so long as the government was not targeting anyone in particular.
• The bills even go a step further and allow the recording of purely domestic calls, so long as the surveillance was "directed at" a foreign power or agent. Under this approach, any citizen's calls to the Israeli embassy or the New York office of the Greek-owned Olympic Airways could be recorded without a warrant.
• Finally, the bills' crabbed definition means that the government can record who is calling whom and how often, and record the "To" and "From" lines on all email, even for purely domestic communications, so long as it was targeting no one in particular. Under this approach, for the first time ever, NSA would be able to train its vacuum cleaner on the domestic calls and email of US citizens, creating a permanent database capable of being data mined or searched without even a subpoena.

Singly or together, the ramifications of these changes are bracing, especially with the dismantling of the "wall" between intelligence and law enforcement agencies.

Here's the ultimate irony: By defining the President's program as not being "electronic surveillance," Chairman Specter's bill probably divests the Foreign Intelligence Surveillance Court of jurisdiction to review the President's program, which was supposed to be the purpose of the Chairman's bill.

On a party line vote, the Judiciary Committee also reported Senator DeWine's bill, which would authorize programs of warrantless surveillance inside the US under a lower standard than the Fourth Amendment requires for renewable periods of 45 days and would eliminate prior judicial review and individualized warrants, leaving only after-the-fact congressional oversight by a small subcommittee of the congressional intelligence committees.

CDT supports the Specter-Feinstein bill, which was the only bill reported out of Committee with bipartisan support. Unlike the other bills, the Specter-Feinstein bill restores the constitutional balance of power and is narrowly focused on the issues the Administration said caused it to circumvent FISA -- namely, the need for more resources, greater speed in approving FISA applications, more flexibility to begin wiretapping in an emergency, and clarity that a warrant is not required for the interception of foreign-to-foreign communications.

Contact Nancy Libin (202) 637-9800 x 113 or Jim Dempsey (202) 365-8026.