Letters to the Editor
ondelette
Published Letters: 1984 Editor's Choice: 19
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Some highlights of the new FISA Bill
[Read the article: The administration's FISA falsehoods continue unabated]
[Read more letters about this article: Here]I went through the new FISA amendment, and here are some highlights. They speak worlds about what they are doing and what they have done. I won't include (I was going to) section 408, which absolves the telecoms, the intelligence agencies and their personnel, and all other information gathering people involved in the so-called NSA wiretapping program of any transgressions of the law so long as they were fighting terrorism, back to September 11, 2001.
1) One of the big ones is that they have defined "electronic surveillance" on "U.S. persons" narrowly so that the Attorney General (AG) can authorize a lot of things without court orders, since he has to certify it isn't electronic surveillance. A device isn't being used for electronic surveillance of this kind unless it is 'intentionally directing surveillance at a particular known person who is reasonably believed to be located within the United States'. Any data mining device probably wouldn't be "intentionally directing surveillance" at a person. Previously, it was spying on a U.S. person if the contents originated with or were sent to such a person, now it is only if the sender and all recipients are in the U.S.
2) Previously, to be an agent of a foreign power, you needed to work for the foreign power on U.S. soil, now you are such an agent if you can be "reasonably expected to possess, control, transmit, or receive foreign intelligence information" while you are in the U.S. That makes you eligible for authorized surveillance without a warrant.
3) "Contents" used to include the names of sender and recipients and place of origin and destination, but not anymore (this is what people are calling the "metadata" provision).
4) There are a couple of new sections. One authorizes the AG to authorize "acquisition of foreign intelligence information" for a year if it is "not electronic surveillance" (that is why they wrote the narrow definition of it), or if it resides or is transmitted by communications, service, or storage providers. The AG doesn't need to specify the facilities for collecting the data, only a "significant purpose" of the acquisition needs to be foreign intelligence information, and minimization procedures need to be followed. -- Oh, and by the way, they rewrote the minimization procedures to allow them to keep the data that happens to be collected on U.S. persons indefinitely (it used to have to be destroyed). All the stuff collected can be used in court, the AG can declare it to be sensitive and force all review of appropriateness in court to be "in camera, ex parte" and the target in such cases will only be informed of the appropriateness. Although no warrant has been issued by the court, the AG can have the court cite anyone who doesn't comply with the collection orders with contempt of court.
5) It used to be that a warrant application to the FISA court used to have to be certified as a legit intelligence gathering operation by someone of sufficient status to have been appointed by the president and approved by the senate. The new provisions say the person only has to be a presidential appointee. Most of the requirements for information for the warrant have been replaced by summaries of the information, the government does not have to disclose how it will get the information. Warrants are good for a year, and can be renewed under some circumstances.
6) An emergency order can be issued by the AG equivalent to a warrant, the deadline for getting the real thing has been extended to a week. If the court turns down the application, the information cannot be used unless it is a threat, or unless the AG decides that it is significant foreign intelligence information, in which case the information is valid.
7) Most of these "upgrades" have also been added for physical searches as well. For physical searches, if the AG determines there is a national security interest preventing disclosure, the AG can order the court to transfer the proceedings to determine the legal standing of the intelligence data to the FISA court.
Sorry for the long post, but there are some really dangerous things in here, like that all the stuff is also applicable to garden variety searches, that the AG can overrule the district court on determinations of "state secrets", illegally obtained data can be kept and used, the president can appoint people unconfirmed by congress to certify spying, almost anybody can be designated an agent to a foreign power if data passes through their computer, and spying on all sorts of databases and communications with only a significant purpose, not the only purpose being foreign intelligence.
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@Arne
[Read the article: The administration's FISA falsehoods continue unabated]
[Read more letters about this article: Here]The paragraph you cited will be deleted if the changes go through.
Also, the proposed changes are not just for electronic surveillance, but also for physical searches. And your status changes if you can be labeled as an agent of a foreign power, they want to change the definition of agent of a foreign power to anyone who "is reasonably expected to possess, control, transmit, or receive foreign intelligence information while such person is in the United States".