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Government Surveillance

Center for Democracy & Technology Urges Rejection of FISA Bill Compromise


Brock N Meeks, CDT
(202) 637-9800 ex. 114
(703) 989-3547 (CELL)

Washington – The Center for Democracy & Technology today urged Congress to reject legislation to amend the Foreign Intelligence Surveillance Act that is expected to be voted on in the House tomorrow and in the Senate next week. The legislation, H.R. 6304, the FISA Amendments Act, fails to give the FISA court adequate authority to ensure that Americans are protected against unjustified surveillance of their communications. It also effectively provides immunity to telecommunications carriers that assisted with warrantless surveillance for years after September 11, 2001.

“Congress has had ample opportunity to ensure that the civil liberties of Americans are protected and it failed,” said CDT President and CEO Leslie Harris. “Congress could have given intelligence agencies the necessary authority to domestically collect the communications of targets abroad while preserving privacy protections for Americans,” Harris said. “Instead, under this flawed bill, intelligence agencies can authorize themselves to conduct surveillance. Meanwhile, court review of surveillance procedures will often be too little and too late to provide meaningful protection.”

In particular, the legislation: — Purports to require prior judicial authorization of targeting and minimization procedures for surveillance, but includes an exception so broad that it essentially eliminates prior judicial review for new surveillance programs; — Fails to require an individualized court order based on probable cause when the focus of surveillance has shifted from a target abroad to a person in the U.S.; and — Immunizes telecoms that assisted with unlawful warrantless surveillance by directing the court to dismiss privacy lawsuits against the companies if the surveillance was designed to detect or prevent terrorist activities and they received written assurances that the President had authorized the surveillance – assurances that they reportedly received.

Gregory T. Nojeim, Director of CDT’s Project on Freedom, Security and Technology, criticized the bill for granting immunity to telephone companies that assisted with the NSA’s illegal, warrantless surveillance program. “By granting telecom immunity, the bill will provide relief to telecoms today, but create enormous uncertainty for companies in the future,” Nojeim said. “What happens when a future President asks them to assist with unlawful surveillance? The answer is, no one knows,” he added.

While urging members to oppose the legislation on balance, CDT welcomed two provisions. One strengthens the “exclusivity” provision in FISA by precluding the argument that Congress may implicitly authorize warrantless surveillance. The other requires an important Inspectors General audit of the post 9/11 warrantless surveillance program.

The legislation is being considered under a looming but manageable deadline, because surveillance orders issued under last year’s stopgap legislation will begin to expire in August. “Instead of enacting such flawed legislation now, Congress would do well to extend the existing surveillance orders and let the next Congress and Administration work for a better compromise,” Nojeim said.