FISA of 1978 Amendments Act of 2008

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Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008
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Long titleAn Act to amend the Foreign Intelligence Surveillance Act of 1978 to establish a procedure for authorizing certain acquisitions of foreign intelligence, and for other purposes.
NicknamesFISA Amendments Act of 2008
Enacted bythe 110th United States Congress
EffectiveJuly 10, 2008
Citations
Public law 110-261
Statutes at Large 122  Stat.   2436
Codification
Acts amended Foreign Intelligence Surveillance Act
USA PATRIOT Act
Protect America Act of 2007
Titles amended 50 U.S.C.: War and National Defense
U.S.C. sections amended 50 U.S.C. ch. 36 § 1801 et seq.
Legislative history
Major amendments
USA Freedom Act

The FISA Amendments Act of 2008, also called the FAA and Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, [1] is an Act of Congress that amended the Foreign Intelligence Surveillance Act. [2] It has been used as the legal basis for surveillance programs disclosed by Edward Snowden in 2013, including PRISM. [3]

Contents

Background

Warrantless wiretapping by the National Security Agency (NSA) was revealed publicly in late 2005 by The New York Times and then reportedly discontinued in January 2007. [4] See Letter from Attorney-General Alberto Gonzales to Senators Patrick Leahy and Arlen Specter, CONG. REC. S646-S647 (January 17, 2007). [5] By 2008 approximately forty lawsuits had been filed against telecommunications companies by groups and individuals alleging that the Bush administration illegally monitored their phone calls or e-mails. [6] Whistleblower evidence suggests that AT&T was complicit in the NSA's warrantless surveillance, which could have involved the private communications of millions of Americans. [7]

The Foreign Intelligence Surveillance Act makes it illegal to intentionally engage in electronic surveillance under appearance of an official act or to disclose or use information obtained by electronic surveillance under appearance of an official act knowing that it was not authorized by statute; this is punishable with a fine of up to $10,000 or up to five years in prison, or both. [8] In addition, the Wiretap Act prohibits any person from illegally intercepting, disclosing, using, or divulging phone calls or electronic communications; this is punishable with a fine or up to five years in prison, or both. [9]

Title VII

The FISA Amendments Act also added a new Title VII to FISA which contained provisions similar, but not identical to, provisions in the Protect America Act of 2007 which had expired earlier in 2008. [10] The new provisions in Title VII of FISA were scheduled to expire on December 31, 2012, but two days before the U.S. Senate extended the FISA Amendments Act for five years, [10] which renewed the U.S. government's authority to monitor electronic communications of foreigners abroad. In January 2018 this was extended by six more years.

Section 702: Non U.S. persons

Section 702 permits the Attorney General and the Director of National Intelligence to jointly authorize targeting of non-US persons reasonably believed to be located outside the United States.

By targeting it is meant that US persons or persons located in the United States may not be the intended targets of the collection. The targeting must have as its object the acquisition of foreign intelligence information, as this is defined by FISA. [11]

This does not mean the communications of US persons can not be collected, as they are subject to what is known as incidental collection under some circumstances, such as when they communicate with non-US persons who are the targets of the collection. [11]

Under § 702(b) of the FISA Amendments Act, acquisitions are subject to several limitations.

Specifically, an acquisition:

Section 702 certifications are authorized annually. There are some differences from the traditional Title I FISA process. The certifications are authorized based on categories of information that are subject to the collection and meet the definition of foreign intelligence information. The authorized certifications include international terrorism, acquisition of weapons of mass destruction and other topics. [11]

Section 702 authorizes foreign surveillance programs by the National Security Agency (NSA), like PRISM and some earlier data collection activities which were previously authorized under the President's Surveillance Program from 2001.

The United States Foreign Intelligence Surveillance Court (FISA Court) ruled that the FBI used the identifiers of 16,000 persons though the FBI could legally justify only seven based on the required foreign intelligence or crime-fighting purposes. There were queries that were not reasonably likely to retrieve foreign-intelligence information or evidence of crime, such as queries to vet a potential source, candidates for local police, college students participating in a "Collegiate Academy", and of individuals who had visited the FBI office. It also noted other instances of noncompliance. [13] [14]

Section 704: U.S. persons outside the United States

Section 704 permits the Foreign Intelligence Surveillance Court to authorize surveillance targeting US persons outside the United States to acquire foreign intelligence information. Unlike Section 702, Section 704 requires an order from the FISA Court. This is claimed as an "additional protection for U.S. persons that did not exist prior to the FAA". [15]

Legislative history

Netroots opposition to the bill

A group of netroots bloggers and Representative Ron Paul supporters joined together to form a bipartisan political action committee called Accountability Now to raise money during a one-day money bomb, which, according to The Wall Street Journal , would be used to fund advertisements against Democratic and Republican lawmakers who supported the retroactive immunity of the telecommunications company. [30]

Provisions

Specifically, the Act: [31]

Effects

ACLU lawsuit

The American Civil Liberties Union (ACLU) filed a lawsuit challenging the FISA Amendments Act of 2008 on the day it was enacted. The case was filed on behalf of a broad coalition of attorneys and human rights, labor, legal, and media organizations whose ability to perform their work—which relies on confidential communications—could be compromised by the new law. [36] The complaint, captioned Amnesty et al. v McConnell and filed in the United States District Court for the Southern District of New York, argued that the eavesdropping law violated people's rights to free speech and privacy under the First and Fourth Amendments to the Constitution. [37] The case was dismissed from the district court on the grounds that the plaintiffs could not prove their claims, but was revived in March 2011 by the United States Court of Appeals for the Second Circuit, which disagreed. [38] The subsequent citation was Amnesty v. Blair .

Comparisons

In an internet broadcast interview with Timothy Ferriss, Daniel Ellsberg compared the current incarnation of FISA to the East German Stasi. [39] Ellsberg stated that the powers which were currently being given to the federal government through this and other recent amendments to FISA since the September 11 attacks opened the door to abuses of power and unwarranted surveillance.

See also

Related Research Articles

<span class="mw-page-title-main">United States Foreign Intelligence Surveillance Court</span> U.S. federal court

The United States Foreign Intelligence Surveillance Court (FISC), also called the FISA Court, is a U.S. federal court established under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants against foreign spies inside the United States by federal law enforcement and intelligence agencies.

<span class="mw-page-title-main">Foreign Intelligence Surveillance Act</span> 1978 United States federal law

The Foreign Intelligence Surveillance Act of 1978 is a United States federal law that establishes procedures for the surveillance and collection of foreign intelligence on domestic soil.

The USA PATRIOT Act was passed by the United States Congress in 2001 as a response to the September 11, 2001 attacks. It has ten titles, each containing numerous sections. Title II: Enhanced Surveillance Procedures granted increased powers of surveillance to various government agencies and bodies. This title has 25 sections, with one of the sections containing a sunset clause which sets an expiration date, December 31, 2005, for most of the title's provisions. This was extended twice: on December 22, 2005 the sunset clause expiration date was extended to February 3, 2006 and on February 2 of the same year it was again extended, this time to March 10.

<span class="mw-page-title-main">NSA warrantless surveillance (2001–2007)</span> Part of Terrorist Surveillance Program

NSA warrantless surveillance — also commonly referred to as "warrantless-wiretapping" or "-wiretaps" — was the surveillance of persons within the United States, including U.S. citizens, during the collection of notionally foreign intelligence by the National Security Agency (NSA) as part of the Terrorist Surveillance Program. In late 2001, the NSA was authorized to monitor, without obtaining a FISA warrant, phone calls, Internet activities, text messages and other forms of communication involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lies within the U.S.

In re: Sealed Case No. 02-001, 310 F.3d 717 (2002), is a per curiam decision by the United States Foreign Intelligence Surveillance Court of Review in which it reviewed restrictions that were placed upon a Foreign Intelligence Surveillance Act (FISA) application by the Foreign Intelligence Surveillance Court (FISC) on May 17, 2002. The Court of Review reversed the FISC's restrictions by stating that they "are not required by FISA or the Constitution." The opinion represents the first meeting of and first opinion by the Court of Review. For the purposes of review, the FISC's modification of the requested application worked as a "denial" and thus gave the Court of Review jurisdiction to take the case.

<i>American Civil Liberties Union v. National Security Agency</i>

American Civil Liberties Union v. National Security Agency, 493 F.3d 644, is a case decided July 6, 2007, in which the United States Court of Appeals for the Sixth Circuit held that the plaintiffs in the case did not have standing to bring the suit against the National Security Agency (NSA), because they could not present evidence that they were the targets of the so-called "Terrorist Surveillance Program" (TSP).

<span class="mw-page-title-main">Section summary of Title II of the Patriot Act</span>

The following is a section summary of the USA PATRIOT Act, Title II. The USA PATRIOT Act was passed by the United States Congress in 2001 as a response to the September 11, 2001 attacks. Title II: Enhanced Surveillance Procedures gave increased powers of surveillance to various government agencies and bodies. This title has 25 sections, with one of the sections containing a sunset clause which sets an expiration date, of 31 December 2005, for most of the title's provisions. On 22 December 2005, the sunset clause expiration date was extended to 3 February 2006.

<span class="mw-page-title-main">Terrorist Surveillance Program</span> NSA program

The Terrorist Surveillance Program was an electronic surveillance program implemented by the National Security Agency (NSA) of the United States in the wake of the September 11, 2001 attacks. It was part of the President's Surveillance Program, which was in turn conducted under the overall umbrella of the War on Terrorism. The NSA, a signals intelligence agency, implemented the program to intercept al Qaeda communications overseas where at least one party is not a U.S. person. In 2005, The New York Times disclosed that technical glitches resulted in some of the intercepts including communications which were "purely domestic" in nature, igniting the NSA warrantless surveillance controversy. Later works, such as James Bamford's The Shadow Factory, described how the nature of the domestic surveillance was much, much more widespread than initially disclosed. In a 2011 New Yorker article, former NSA employee Bill Binney said that his colleagues told him that the NSA had begun storing billing and phone records from "everyone in the country."

<span class="mw-page-title-main">David S. Kris</span> American lawyer

David Steven Kris is an American lawyer. From 2009 to 2011, he served as the United States Assistant Attorney General for the National Security Division of the United States Department of Justice. He also served as the associate deputy attorney general for national security issues at the Department of Justice from 2000 to 2003.

<i>Hepting v. AT&T</i>

Hepting v. AT&T, 439 F.Supp.2d 974, was a class action lawsuit argued before the United States District Court for the Northern District of California, filed by Electronic Frontier Foundation (EFF) on behalf of customers of the telecommunications company AT&T. The plaintiffs alleged that AT&T permitted and assisted the National Security Agency (NSA) in unlawfully monitoring the personal communications of American citizens, including AT&T customers, whose communications were routed through AT&T's network.

Warrantless searches are searches and seizures conducted without court-issued search warrants.

<span class="mw-page-title-main">Protect America Act of 2007</span> US surveillance law

The Protect America Act of 2007 (PAA),, is a controversial amendment to the Foreign Intelligence Surveillance Act (FISA) that was signed into law by U.S. President George W. Bush on August 5, 2007. It removed the warrant requirement for government surveillance of foreign intelligence targets "reasonably believed" to be outside the United States. The FISA Amendments Act of 2008 reauthorized many provisions of the Protect America Act in Title VII of FISA.

<span class="mw-page-title-main">President's Surveillance Program</span> Intelligence activities in the US

The President's Surveillance Program (PSP) is a collection of secret intelligence activities authorized by the President of the United States George W. Bush after the September 11 attacks in 2001 as part of the War on Terrorism. Information collected under this program was protected within a Sensitive Compartmented Information security compartment codenamed STELLARWIND.

Clapper v. Amnesty International USA, 568 U.S. 398 (2013), was a United States Supreme Court case in which the Court held that Amnesty International USA and others lacked standing to challenge section 702 of the Foreign Intelligence Surveillance Act of 1978, as amended by the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008.

<span class="mw-page-title-main">PRISM</span> Mass surveillance program run by the NSA

PRISM is a code name for a program under which the United States National Security Agency (NSA) collects internet communications from various U.S. internet companies. The program is also known by the SIGAD US-984XN. PRISM collects stored internet communications based on demands made to internet companies such as Google LLC and Apple under Section 702 of the FISA Amendments Act of 2008 to turn over any data that match court-approved search terms. Among other things, the NSA can use these PRISM requests to target communications that were encrypted when they traveled across the internet backbone, to focus on stored data that telecommunication filtering systems discarded earlier, and to get data that is easier to handle.

The Fourth Amendment Protection Acts, are a collection of state legislation aimed at withdrawing state support for bulk data (metadata) collection and ban the use of warrant-less data in state courts. They are proposed nullification laws that, if enacted as law, would prohibit the state governments from co-operating with the National Security Agency, whose mass surveillance efforts are seen as unconstitutional by the proposals' proponents. Specific examples include the Kansas Fourth Amendment Preservation and Protection Act and the Arizona Fourth Amendment Protection Act. The original proposals were made in 2013 and 2014 by legislators in the American states of Utah, Washington, Arizona, Kansas, Missouri, Oklahoma and California. Some of the bills would require a warrant before information could be released, whereas others would forbid state universities from doing NSA research or hosting NSA recruiters, or prevent the provision of services such as water to NSA facilities.

<span class="mw-page-title-main">USA Freedom Act</span> 2015 U.S. surveillance law

The USA Freedom Act is a U.S. law enacted on June 2, 2015, that restored and modified several provisions of the Patriot Act, which had expired the day before. The act imposes some new limits on the bulk collection of telecommunication metadata on U.S. citizens by American intelligence agencies, including the National Security Agency. It also restores authorization for roving wiretaps and tracking lone wolf terrorists. The title of the act is a ten-letter backronym that stands for Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015.

<span class="mw-page-title-main">FISA Improvements Act</span>

The FISA Improvements Act is a proposed act by Senator Dianne Feinstein, Chair of the Senate Intelligence Committee. Prompted by the disclosure of NSA surveillance by Edward Snowden, it would establish the surveillance program as legal, but impose some limitations on availability of the data. Opponents say the bill would codify warrantless access to many communications of American citizens for use by domestic law enforcement.

<span class="mw-page-title-main">Proposed reforms of mass surveillance by the United States</span>

Proposed reforms of mass surveillance by the United States are a collection of diverse proposals offered in response to the Global surveillance disclosures of 2013.

<span class="mw-page-title-main">Barack Obama on mass surveillance</span> Overview of the statements of former U.S. president Barack Obama on mass surveillance

Former U.S. President Barack Obama favored some levels of mass surveillance. He has received some widespread criticism from detractors as a result. Due to his support of certain government surveillance, some critics have said his support violated acceptable privacy rights, while others dispute or attempt to provide justification for the expansion of surveillance initiatives under his administration.

References

  1. H.R. 6304, enacted July 10, 2008
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  9. "U.S. CODE: Title 18, section 2511. Interception and disclosure of wire, oral, or electronic communications prohibited".
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  14. "FISA Court Opinion Outlines FBI Abuse of Key Intelligence Surveillance Authority". Center for Democracy and Technology. September 4, 2020. Retrieved March 8, 2022.
  15. [google.com/books/edition/Oversight_of_the_U_S_Department_of_Justi/mlxFAQAAMAAJ Hearing Before the Committee on the Judiciary, United States Senate, One Hundred Twelfth Congress, Second Session, June 12, 2012]. p. 37.{{cite book}}: Check |url= value (help)
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  32. 1 2 "FISA Amendments Act of 2008" – Section 702, subsection h, paragraph 3; Section 703, subsection e.
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