Do You Trust This Man to Protect Your Privacy?


Yesterday President Bush signed an amendment to the Foreign Intelligence Surveillance Act (FISA) that legalizes the warrantless surveillance that the National Security Agency has been conducting since 2001. The major provisions include:

1) A redefinition of "electronic surveillance," for which a warrant from the Foreign Intelligence Surveillance Court is required, to exclude communications involving at least one person who is outside the United States. That means the NSA not only does not need a warrant to eavesdrop on international communications that happen to be routed through a U.S. switch (which seems like a reasonable tweak to FISA); it also does not need a warrant to eavesdrop on communications between people in the U.S. (including legal residents and American citizens) and people in other countries, provided the party outside the country is suspected of involvement in terrorism. That suspicion need not be vetted (or even rubber-stamped) by anyone outside the executive branch; the attorney general and the director of national intelligence will have the unreviewable authority to approve surveillance.

2) Authorization of administrative directives compelling telecommunications companies to cooperate with surveillance or provide records. A company can appeal such an order to a FISA judge, who can modify or set aside the directive only if he finds it "does not meet the requirements of this section or is otherwise unlawful." The requirements are easily met: The government need only assert that "a significant purpose" of the surveillance is "to obtain foreign intelligence information" and have "reasonable procedures in place" for determining that the information sought "concerns persons reasonably believed to be located outside the United States."

Under the new law, then, the government may eavesdrop on your international phone calls, read your international e-mail, and peruse your phone and Internet records at will, based on nothing more than an untested suspicion that the person with whom you're communicating has some sort of connection to terrorism. In practice, since no court will be reviewing the authorization of surveillance (even after the fact), you have no legally enforceable privacy rights that protect the content of these communications or records. You have to put all your trust in the competence and integrity of the director of national intelligence and the attorney general, a man whom several members of the Senate Judiciary Committee (including the senior Republican) recently accused of deliberately misleading Congress.

Addendum: Here is Orin Kerr's take. He expresses some civil liberties concerns but concludes, "Given that this is a 6-month temporary fix, not a permanent change, I tend to support it." Note that the FISA court review to which he alludes involves the government's general procedures for limiting warrantless monitoring to "surveillance directed at a person reasonably believed to be located outside of the United States," not the evidence that a specific target is involved in terrorism. He characterizes that review as "highly deferential." Kerr also worries about compelling the participation of telecommunications companies without individualized court orders.

At Balkinization, Marty Lederman offers his analysis of the amendment, while Jack Balkin warns that the "Party Without a Spine" is conspiring with the "Party of Fear" to bring us a "National Surveillance State."

A PDF of the bill is available here.