An Enlightened Layperson's Analysis of the New FISA Bill

Sigh!! So the Democrats have caved and given George Bush just what he wanted in terms of FISA modifications. Before giving way to general outrage, the first order of business should be to understand just what Congress has enacted and why.

For reasons that have not been made public, one of the FISA judges recently ruled that the Administration was in violation of FISA. Although the what the judge ruled is unknown, there is a general consensus on what happened. FISA, in its original form, did not require a warrant to listen in to calls taking place entirely outside the United States. Since FISA was enacted, however, calls are increasingly sent over fiber optic cables that may be far from the actual people talking. A call between two people outside the United States may pass through a cable in the US. It is believed the court ruled that a warrant would be required to listen in to such a cable. This was generally agreed to be a flaw in need of correction. The difference between Congressional Democrats and the Administration was how much leeway to allow listening into such a cable.

A comparison between the old law, the proposed Democratic bill, and the Administration's bill that passed is as follows:

The old FISA law:

• Defined "electronic surveillance" requiring a warrant as (1) surveillance intentionally targeting of a "United States person" (citizen or permanent legal resident) within the US, or (2) surveillance of the wire communications of a person in the United States, if the acquisition takes place within the US, or (3) surveillance of radio communications between people within the US, or (4) any other surveillance within the US that might come up.
  


• Permitted surveillance without a warrant inside the US for periods of up to one year if the Attorney General certified in writing that that it applied only to foreign governments or embassies and that appropriate "minimization procedures" were applied. (Minimization procedures are rules for limitnig innnocent information that may be accidentally obtained).
  
• Established procedures for applying for FISA warrants.
  


• Commanded the judge to issue a warrant if (1) there is probable cause to believe the target is an "agent of a foreign power" (including terrorist organizations), (2) minimization procedures are adequate, and (3) the application has been properly prepared and, if the target is a US person, is not "clearly erroneous."



• Required telecommunications companies to comply with FISA warrants and immunized them from liability for complying with FISA.
  

The Democratic bill would have:

• Made clear that foreign-to-foreign communications routed through the United States do not require a FISA warrant, even if the surveillance takes place within the US.
  


• Required the Attorney General to submit an application to the FISA court for a one-year order explaining (1) how it is determined that targets of the surveillance are outside the US, (2) the general information being sought and "foreign power" (incuding terrorist organization) that is the target (although individual persons and places need not be named), and (3) minimization procedures being used.
  


• Commanded the judge to grant the order if (1) the surveillance is not a kind requiring personal FISA warrants, (2) the methods described are reasonably designed to determine whether the persons are outside the US, (3) foreign intelligence is a "significant purpose" of the surveillance, and (4) minimization procedures are adequate.
  


• Required telecommunications companies to comply with the court order and immunized them from liability for complying.

The Administration bill that actually passed:

• Makes clear that FISA warrants are not required for surveillance "directed at a person reasonably believed to be located outside the United States."
  


• Gives the Attorney General and Director of National Intelligence authority to authorize such surveillance for one year without a court order, provided they certify (1) there are reasonable procedures in place for determining the people surveilled are outside the US, (2) no individual FISA warrant is required, (3) foreign intelligence is a "significant purpose" of the surveillance, and (4) minimization procedures are adequate.



• Provides for court review of the Attorney General's guidelines 4 to 6 months after the law is enacted. The court may rule against the government only if it finds the determination is "clearly erroneous."
  


• Requires telecommunications companies to comply with the AG and DNI directives and immunize them from liability for complying. Companies could challenge the legality of such a directive in the FISA court.

So, what are the important differences?

With regard to when a warrant is required, the old FISA did not specify any particular calls not requiring a warrant. However, reading the definitions closely, one can see that it did not require a warrant for any communications taking place entirely outside the United States or international radio communications. More controversially, FISA required a warrant for "any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States." This would seem indicate that if the NSA wiretapped a person outside the US, and if the wiretap itself took place outside the US, they could listen in on that person's calls with someone inside the US. However, the NSA could not monitor such a call from a switch inside the US. (This was the crux of the debate over warrantless surveillance; was a warrant required to listen to calls in and out of the US).

The Democratic version excludes from warrant only "communications between persons that are not located within the United States . . . without respect to whether the communication passes through the United States or the surveillance device is located within the United States." This would still require a warrant to wiretap calls between the US and other countries, if the wiretap occurred within the US. The Administration version exempts surveillance "directed at a person reasonably believed to be located outside of the United States." Wiretapping of international calls in and out of the United States would not require a warrant so long as the target was "reasonably believed" not to be in the country. The huge question here is whether "directed at a person reasonably believed to be located outside of the United States" means that our international call can be wiretapped without a warrant only if the person on the other end is a specific target, or if any international call is fair game.

Obviously, there are major enforcement differences between the bills. In the Democratic version, the Attorney General would have to show the court that he was using procedures to protect American calls from surveillance before beginning. In the Administration bill, the AG and DNI have four to six months of unsupervised surveillance, and the FISA court can reign them in only if their procedures are "clearly erroneous." How alarming this is all depends on how far you trust Alberto Gonzales, I guess.

Finally, all versions are superficially similar in requiring telecommunications companies to participate in wiretapping and immunizing them from liability for complying. However, Professor Orin Kerr points out that there is a difference between the Administration version and either the Democratic version or the old FISA. The Administration version compels compliance with an executive order (with the opportunity to appeal it to court). The other versions require compliance with a court order.

Next: Does it matter that the Democrats won last November?

Update: JAO, at Balkinization, adds a new wrinkle. The Attorney General is not required to make the certifications provided in the new law. JAO believes that the new statute permits the NSA to listen in to any calls between the US and other countries, even without the AG certifying that "reasonable procedures" were used to ensure the surveillance was "directed at" people outside the US, the surveillance was for foreign intelligence, or that minimization procedures were used. However, without such certification, the government cannot compel telecommunications companies to cooperate. (Nor, presumably, would they be immune from liability).

Second update:
Occasional Observer on why JAO's interpretation is probably wrong. Speaking solely as an Enlightened Layperson, I am inclined to agree with Occasional Observer.