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Know Your FISA Fixes

December 4, 2007 - by Donny Shaw

One of the major themes of the current session of Congress has been their attempt to modernize the government’s wiretapping rules while protecting U.S. citizens’ rights to privacy as guaranteed by the Constitution. The PROTECT Act that Congress approved in August was widely considered a bust — it gave the administration too much power and too little oversight in their surveillance of communications involving people in the U.S. Now Congress is trying to fix the mistakes they made with the PROTECT Act, and there are two different proposals being considered to do so.

Since The Foreign Intelligence Surveillance Act (FISA) was enacted in 1978, establishing rules to regulate the government’s surveillance of communication involving U.S. persons, telecommunications technology has changed, sparking the necessity of changes in the law. Globalization, web-based communicating, and other new technologies that don’t necessarily respect national boundaries may be making it more difficult for the government to easily eavesdrop on communications between foreign agents. This is the problem the PROTECT Act sought to fix, but, in most eyes, failed.

The House’s RESTORE Act and the Senate’s FISA Amendments Act are complex and, because they concern secret government procedures, opaque. But since they make proposals concerning the ever-important issues of national security and civil liberties, it’s crucial that we know what they would do.

For that purpose, I highly recommend this 53-page monograph by David Kris, the former Assistant Deputy Attorney General for national security issues in the Department of Justice. It goes through all the FISA background and history you need to familiarize yourself with the issue and then examines Congress’s current proposals at several levels of detail — read the appendix for a section-by-section analysis.

The House approved the RESTORE Act in November and the Senate may take up the FISA Amendments Act as early as this week. Once both chambers have passed a FISA bill, they will have to be reconciled in a conference before being sent to the President, so there is still time to learn about the bills and contact your senators and representative. Be sure to watch OpenCongress’s blog coverage of the House and Senate bills to keep up with current actions in Congress and what people are saying about them.

Hat tip for the link to Marty Lederman at Balkinization.

Pictured above is Attorney General Michael Mukasey at the Justice Department for a FISA meeting.

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