On July 10, 2008, President Bush signed into law the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008 (H.R. 6304), which allows courts to grant retroactive immunity to telecommunications companies that facilitated warrantless surveillance efforts by the government in the wake of the September 11, 2001, terrorist attacks.

The much debated bill is expected to put a halt to a number of pending lawsuits against the major U.S. telecommunications providers accused of giving the Bush administration illegal access to customer communications, and establishes new rules for government monitoring of electronic communications in the United States.

The Act now provides for three permitted methods for electronic surveillance within the United States:

  • (1) under order of the Foreign Intelligence Surveillance Court (FISC);
  • (2) upon authorization by the Attorney General that an emergency situation requires electronic surveillance to obtain foreign intelligence information; or
  • (3) upon authorization by the Attorney General that an emergency requires the use of a pen register or trap and trace device (used to track calls to or from a person in the United States) to gather foreign intelligence information.

For the second and third methods, the Attorney General must seek and obtain permission from a FISC judge within seven days.

Background of the Foreign Intelligence Surveillance Act

Congress first enacted FISA in 1978 to create a framework for investigators to monitor communications between individuals in the United States and foreign nationals in an effort to prevent the government from abusing its surveillance powers for political purposes, as was done in the Vietnam War and Watergate eras.

At the same time, Congress created a highly secretive court to consider requests for surveillance under FISA. Under the FISA law, intelligence officials seeking to monitor communications in the United States were required to obtain a court order from the FISC authorizing the surveillance.

Within weeks of the September 11th attacks, however, the Bush administration authorized a new surveillance program allowing the National Security Agency (NSA) to directly monitor phone and e-mail communications in the United States without receiving a court order from the FISC. The NSA allegedly set up equipment at telephone and Internet switching sites to track e-mails and phone calls, and used these sites to monitor thousands of international telephone calls and e-mails sent to and from individuals in the United States.

Only a select few members of Congress knew about the administration’s secret surveillance program when it was first reported in the media in December 2005. Immediately following the news report, the Bush administration proffered two legal justifications for the NSA monitoring program.

First, the administration claimed Congress authorized the surveillance in its post-9/11 resolution permitting “all necessary and appropriate force” against terrorism.

Second, and perhaps of greater lasting importance, the administration argued that the Constitution grants the president “inherent authority” to conduct warrantless surveillance of foreign powers or their agents.

In January 2007, the White House announced that it was discontinuing the warrantless surveillance program, instead bringing surveillance of all communications to and from persons in the United States under the auspices of the FISC.

Despite the majority support in Congress for this development, the legislature was reluctant to grant immunity to communications providers who assisted with the now defunct program. The Bush administration and Congress jostled over immunity and other details for more than a year before ultimately adopting the revised Act.

Forty-six civil lawsuits alleging participation in the warrantless surveillance program now stand to be dismissed upon certification that the service providers were cooperating with a request or directive from a Justice Department or intelligence official. Civil rights groups are already in the process of challenging the bill’s constitutionality.

Implications of the Act for Carriers and U.S. Citizens

Limits of Immunity. Immunity only applies to surveillance methods authorized by the Act, or to warrantless surveillance under the President’s program between September 11, 2001, and January 17, 2007.

Surveillance Overseas. The Act requires the government to get FISC approval before it monitors electronic communications of an American overseas. Currently, the Attorney General approves this type of electronic surveillance on his own.

Extended Intercept Orders. The Act allows the government to obtain broad, year-long intercept orders from the FISC that target foreign groups and people. The original FISA law required the government to get wiretapping warrants for each individual targeted from inside the United States.

Emergency Intercepts. The bill gives the government seven days to conduct a wiretap in case of an emergency situation before it must seek an intercept order from the FISC. The original law provided for a three-day window.

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