Vol. 72/No. 30      July 28, 2008

The bill was described by the New York Times as “the biggest revamping of federal surveillance law in 30 years.” The American Civil Liberties Union filed a lawsuit challenging the bill as a violation of the First and Fourth amendments to the Constitution the day it was signed.

The bill amended the Foreign Intelligence Surveillance Act (FISA) of 1978. FISA was enacted following the Watergate scandal and lawsuits filed by the Socialist Workers Party and others against the FBI for its domestic spying and disruption campaign against political activists—revelations that resulted in widespread growth of distrust in government snoops.

The 1978 FISA legislation was promoted by liberals and civil libertarians as a way to put some restrains on “illegal” spying. The government set up secret courts to issue wiretap and search warrants requested from spy agencies. Since then, the FISA courts have provided a legal rubber stamp to government spy operations, having turned down only 5 of 19,000 requests in 26 years. It was the FISA courts, for example, that gave the green light for the searches and wiretaps of the Cuban Five that were used to frame them up on conspiracy charges in 2001.

This most recent amendment to the 1978 act legitimizes to a large extent a once-secret spy program set up by the Bush administration that circumvented the FISA courts. The program, established following the Sept. 11, 2001, attacks in New York and Washington, instructed the National Security Agency (NSA) to conduct warrantless wiretaps of U.S. residents it claimed might have links to al-Qaeda. It targeted hundreds of people inside the United States and included taps of domestic communications. The program was officially closed in January 2007.

Communications companies including AT&T, Verizon, and Sprint Nextel provided the NSA with phone and e-mail taps without warrants. Following the disclosure of the program, more than 40 lawsuits were filed against these companies for violating their customers’ constitutional rights. The recently passed amendment grants immunity from lawsuit to all these companies.

The amendment also loosens some of the restrictions in the FISA law. For example, it allows the attorney general and director of national intelligence to authorize taps of anyone in the United States for a period of seven days without filing for a warrant, instead of the previous 48 hours. Spying can continue while awaiting the secret court’s decision. The only official requirement is that the domestic targets are in communication with foreign nationals “reasonably believed” to be outside the country.

The final version of the amendment was approved by the Senate 69-28 and the House of Representatives by 293-129. Its backers include presumptive presidential nominees John McCain and Barack Obama. McCain, although not present for the vote, has consistently spoken in favor of the bill, particularly its immunity clause. Obama, who was critical of the bill while contending for the Democratic party nomination, took time out from campaigning to be present for his “aye” vote. Former Democratic presidential candidate Hillary Clinton was among the minority that voted against it.

FISA was first amended in 2001 with the USA Patriot Act, which made it easier for the government to obtain customer records from libraries and Internet service providers. In August 2007, Congress enacted the Protect America Act, which had similar provisions to the most current amendment, but expired in February 2008. The new bill will be up for review in 2012.
 
 
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