The FISA Improvements Act is a proposed act by Senator
Dianne Feinstein
Dianne Goldman Berman Feinstein ( ; born Dianne Emiel Goldman; June 22, 1933) is an American politician who serves as the senior United States senator from California, a seat she has held since 1992. A member of the Democratic Party, she wa ...
, Chair of the
Senate Intelligence Committee. Prompted by the disclosure of
NSA
The National Security Agency (NSA) is a national-level intelligence agency of the United States Department of Defense, under the authority of the Director of National Intelligence (DNI). The NSA is responsible for global monitoring, collecti ...
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.
Overview
In the wake of the
Snowden disclosures,
President Obama
Barack Hussein Obama II ( ; born August 4, 1961) is an American politician who served as the 44th president of the United States from 2009 to 2017. A member of the Democratic Party, Obama was the first African-American president of the ...
and many lawmakers believed that restoration of public trust would require legislative changes. More than 20 bills have been written with the goal of reining in government surveillance powers.
On October 28, 2013, Senator Dianne Feinstein, long described as a staunch defender of the
National Security Agency
The National Security Agency (NSA) is a national-level intelligence agency of the United States Department of Defense, under the authority of the Director of National Intelligence (DNI). The NSA is responsible for global monitoring, collect ...
(NSA), announced that a "total review of all intelligence programs is necessary".
A bill was introduced by Feinstein on October 31, 2013. Amendments were offered and rejected. The same day it was introduced, the bill passed the
United States Senate Select Committee on Intelligence
The United States Senate Select Committee on Intelligence (sometimes referred to as the Intelligence Committee or SSCI) is dedicated to overseeing the United States Intelligence Community—the agencies and bureaus of the federal government of ...
by a vote of 11-4. The committee's report on the bill was published on November 12.
Feinstein issued a press release saying that the bill would impose restrictions on how data is collected, including prohibiting bulk collection of the content of communications, and place a limit of five years on retention of the data. It would make unauthorized access to data obtained under the FISA orders punishable by ten years in prison. The bill would make the
FISA 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 agai ...
require "reasonable articulable suspicion" of association with international terrorism before records are reviewed. It also would set limits on the number of people with access to the data, and set limits on the number of "hops" (contact intermediaries) that can be searched. It would require the NSA to make an annual report of the number of queries made and the number of FBI investigations or probable cause orders issued. The bill would also require intelligence agencies to report violations of law to Congress, require a review once per by the Attorney General of collection procedures, and permit the FISA court to invite independent
amicus curiae perspectives on cases. It would require
Senate confirmation
Advice and consent is an English phrase frequently used in enacting formulae of bills and in other legal or constitutional contexts. It describes either of two situations: where a weak executive branch of a government enacts something prev ...
of appointments of the
NSA director
The director of the National Security Agency (DIRNSA) is the highest-ranking official of the National Security Agency, which is a defense agency within the U.S. Department of Defense. The director of the NSA also concurrently serves as the Chief ...
and
NSA Inspector General.
MSNBC
MSNBC (originally the Microsoft National Broadcasting Company) is an American news-based pay television cable channel. It is owned by NBCUniversala subsidiary of Comcast. Headquartered in New York City, it provides news coverage and politi ...
reported that the bill "purports to ban the NSA's controversial bulk collection of communications records under Section 215 of the
Patriot Act
The USA PATRIOT Act (commonly known as the Patriot Act) was a landmark Act of the United States Congress, signed into law by President George W. Bush. The formal name of the statute is the Uniting and Strengthening America by Providing Appro ...
" but "basically allows the NSA to continue bulk collection."
Feinstein defended data collection in her press release, saying that "The threats we face—from terrorism, proliferation and cyber attack, among others—are real, and they will continue. Intelligence is necessary to protect our national and economic security, as well as to stop attacks against our friends and allies around the world."
Response
Senate Intelligence Committee
The Senate Intelligence Committee report recommended the bill, saying that the program was "an effective counterterrorism tool" and "was determined by the Department of Justice in two Administrations and by at least fifteen different judges serving on the Foreign Intelligence Surveillance Court (FISC) to be lawful." While noting that the committee had encountered inadvertent violations of the law, the majority reported "It remains the case that, through seven years of oversight of this metadata program under Section 215, the Committee has not identified a single case in which a government official engaged in a willful effort to circumvent or violate Section 215 in the conduct of the bulk telephone metadata program." The committee endorsed measures to codify and enhance privacy protections, saying these measures "could not have been enacted absent the declassification of lawful intelligence activities that were, until recently, properly classified, as to do so would have revealed the programs to our adversaries and thereby compromised their effectiveness." However, it condemned the disclosures and said that the leaks "have not exposed government wrongdoing."
In a minority view attached to the report, Senators
Ron Wyden,
Mark Udall
Mark Emery Udall ( ; born July 18, 1950) is an American politician who served as a United States Senator from Colorado from 2009 to 2015. A member of the Democratic Party, he previously served in the United States House of Representatives, repres ...
, and
Martin Heinrich
Martin Trevor Heinrich (; born October 17, 1971) is an American businessman and politician serving as the senior United States senator from New Mexico, a seat he has held since 2013. A member of the Democratic Party, Heinrich served as the U.S ...
wrote "this bill would codify the government's authority to collect the phone records of huge numbers of law-abiding Americans, and also to conduct warrantless searches for individual Americans' phone calls and emails. We respectfully but firmly disagree with this approach." Feinstein's response in the report was that the bill "does not provide any new legislative authority with which the government may acquire call records or any other information under Section 215--in fact, it narrows the existing authority for it."
Interest groups
The
American Civil Liberties Union
The American Civil Liberties Union (ACLU) is a nonprofit organization founded in 1920 "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States". T ...
(ACLU) urged opposition, calling the bill a "dream come true for the NSA".
The Electronic Frontier Foundation (EFF) called the bill a "fake fix" that would "permanently entrench" current surveillance practices.
The ACLU and EFF were among fifty-four "civil liberties and public interest groups" that authored a coalition letter to Congressional leadership urging them to oppose the act.
Media
One area of concern raised by ''
The Guardian
''The Guardian'' is a British daily newspaper. It was founded in 1821 as ''The Manchester Guardian'', and changed its name in 1959. Along with its sister papers ''The Observer'' and ''The Guardian Weekly'', ''The Guardian'' is part of the Gu ...
'', crediting blogger
Marcy Wheeler
Marcy Wheeler (known on Twitter by the handle "emptywheel") is an American independent journalist specializing in national security and civil liberties. Wheeler publishes on her own site, ''Emptywheel'', established in July 2011. She has reported ...
, regards a "backdoor search provision" which could allow domestic U.S. law enforcement agencies warrantless access to the data. A FISA court document declassified in 2011 and a leak by
Edward Snowden previously published by the newspaper indicated that generally searches of the database for "
U. S. Persons" was not permitted, but contained a provision that:
:"While the FAA 702 minimization procedures approved on 3 October 2011 now allow for use of certain United States person names and identifiers as query terms when reviewing collected FAA 702 data, analysts may NOT/NOT
ot repeat notimplement any USP
S personsqueries until an effective oversight process has been developed by NSA and agreed to by DOJ/ODNI
ffice of the Director of National Intelligence"
According to ''The Guardian'', Section 6 of the Act "blesses" such a procedure, permitting intelligence agencies to search "the contents of communications" collected overseas for U.S. persons provided that the purpose pertained to "foreign intelligence information". The provision was also criticized by Senator
Ron Wyden, who said that the bill "would give intelligence agencies wide latitude to conduct warrantless searches for American phone calls and emails", instead supporting the
USA Freedom Act
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 metada ...
by Senators
Patrick Leahy
Patrick Joseph Leahy (; born March 31, 1940) is an American politician and attorney who is the senior United States senator from Vermont and serves as the president pro tempore of the United States Senate. A member of the Democratic Party, ...
and
F. James Sensenbrenner that would require a search warrant to obtain the information. Sensenbrenner called Feinstein's bill an effort "for the first time in our country's history to allow unrestrained spying on the American people."
See also
*
USA Freedom Act
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 metada ...
, a legislative bill to end US government bulk collection.
References
External links
Summary of FISA Improvements Act
Full Text of the FISA Improvements Act{{Webarchive, url=https://web.archive.org/web/20160204190330/http://thomas.loc.gov/cgi-bin/query/z?c113:S.+1631: , date=2016-02-04
Proposed legislation of the 113th United States Congress
Global surveillance