|
From: [log in to unmask]
[mailto:[log in to unmask]] On Behalf Of CDT
Info
Sent: 25 September 2006 21:28
To: [log in to unmask]
Cc: CDT Policy Posts
Subject: Policy Post 12.17: Congress Poised to Consider Dangerous NSA Bills
A Briefing On Public Policy Issues Affecting Civil Liberties Online from The
Center For Democracy and Technology
(1) Congress Poised to Consider Dangerous NSA Bills
(2) Alice in Wonderland: It's Not Surveillance if Congress Says It Isn't
(3) Both Bills Contain Additional Provisions That Threaten Civil Liberties
(4) Make Your Voice Heard - Call Your Senators and Representatives
-----------------------------------------------------------------
(1) Congress Poised to Consider Dangerous NSA Bills
Both Houses of Congress are expected this week to consider partisan bills
that would both legalize and expand the President's warrantless wiretapping
program, allowing the intelligence agencies to tap the telephone and
Internet communications of American citizens without a court order.
The version in the House of Representatives is H.R. 5825, sponsored by Rep.
Heather Wilson (R-N.M.). The Senate bill, S. 3931, was drafted by Senate
Judiciary Committee Chairman Arlen Specter (R-Pa.) and introduced by
Majority Leader Bill Frist (R-Tenn.).
Proponents and some press accounts have mischaracterized these bills as
providing judicial review of the President's program and as "modernizing"
the Foreign Intelligence Surveillance Act. In fact, these bills would
prevent meaningful judicial review of the President's program and would both
ratify and expand to an unprecedented level the government's authority to
wiretap Americans without a warrant.
The bills are of dubious constitutionality. They would offer no
identifiable improvement in national security, while turning the vacuum
cleaner approach of the National Security Agency on the communications of
innocent Americans. The bills appear to be entirely unnecessary. Members
of Congress secretly briefed on the President's surveillance program have
said that it could be conducted with court orders.
In the Senate, there is a bipartisan alternative, S. 3001, sponsored by Sen.
Diane Feinstein (D-CA) and, remarkably enough, Chairman Specter. The
Specter-Feinstein bill would address the specific concerns about current law
identified by the Administration, while preserving the core checks and
balances laid down in the Foreign Intelligence Surveillance Act of 1978.
In the House, the Judiciary Committee and the Committee on Intelligence
(HPSCI) reported different versions of the Wilson bill and rejected the
moderate bipartisan alternatives. The House leadership, through the Rules
Committee, will likely meld the two versions of the Wilson bill and send a
composite to the House floor for a vote this week.
In the Senate, the Specter bill has been introduced as a stand-alone bill
(S. 3931), but the leadership has said that it might be considered in a
package (S. 3929) that includes the recent compromise authorizing military
commissions for terrorists. These issues are too important and too complex
to be combined in a single bill. Congress should give the privacy rights of
the American people and the national security needs of the intelligence
agencies the full consideration they deserve by voting on the NSA bill
separately - if at all.
More information: http://www.cdt.org/security/nsa
-----------------------------------------------------------------
(2) Alice in Wonderland: It's Not Surveillance if Congress Says It Isn't
Although not identical, the Specter and Wilson bills are similar in many
respects. Both bills would permit the National Security Agency to turn its
vacuum cleaners on American citizens and create a vast database of
information, which the government could data mine at will, outside any
judicial or congressional oversight, in a fashion reminiscent of the Total
Information Awareness program.
None of these changes is necessary to meet the terrorist threat. In fact, a
truly updated and technology-neutral approach would permit the government,
with a court order, to intercept communications regardless of the
sophistication of the terrorists.
The bills achieve their results in an Alice in Wonderland fashion:
they define large categories of electronic surveillance as not being
electronic surveillance.
Under the Foreign Intelligence Surveillance Act (FISA), if the collection of
information fits within the Act's definition of "electronic surveillance,"
then it requires a court order or must fall under one of the Act's
exceptions.
However, if the recording of conversations and the collection of information
are excluded from the definition of electronic surveillance, then they not
covered by the Act and can be carried on without a warrant and without
reporting to Congress.
The radically revamped Specter bill and the Wilson bill would cut back the
definition of electronic surveillance with the following
results:
President's Program - No Longer Electronic Surveillance: With the sweep of a
legislative wand, the bills would exclude the President's warrantless
surveillance program from coverage under FISA, because the President's
program targets suspected terrorists who are outside the United States, even
though it collects also the conversations of US citizens on the US end of
those communications. The problem with this approach, of course, is that the
person on the phone or email in the United States has rights too. That
party may be a journalist, an aid worker, or any of a number of other types
of totally innocent citizens, yet under the Specter and Wilson bills their
conversations and email would be intercepted without a warrant.
Scooping Up International Communications - No Longer Electronic
Surveillance: The bills don't stop there. While the President has assured
the American public that his program is limited to situations where someone
who may be associated with al Qaeda is overseas, calling into the US, the
Specter and Wilson bills would authorize warrantless interception of every
single call into and out of the United States, so long as the government was
not targeting anyone in particular.
Purely Domestic Calls - May Not be Electronic Surveillance: The bills even
go a step further and allow the recording of purely domestic calls, so long
as the surveillance was "directed at" a foreign power or agent. Under this
approach, any citizen's calls to the Israeli embassy or the New York office
of the Greek-owned Olympic Airways could be recorded without a warrant.
Call-Identifying and Pattern Data for Domestic Communications- No Longer
Electronic Surveillance: Finally, the bills' crabbed definition means that
the government can record who is calling whom and how often, and record the
"To" and From" lines on all email, even for purely domestic communications,
so long as it was targeting no one in particular. Under this approach, for
the first time ever, NSA would be able to train its vacuum cleaner on the
domestic calls and email of US citizens, creating a permanent database
capable of being data mined or searched without even a subpoena.
Singly or together, the ramifications of these changes are bracing,
especially with the dismantling of the wall between intelligence and law
enforcement agencies.
The Specter bill and the version of the Wilson bill reported by the House
Judiciary Committee give the Attorney General the power to issue directives
to phone companies and Internet service providers compelling them to
cooperate with the government in conducting warrantless surveillance. The
Attorney General orders can be enforced in court and any service provider
that fails to obey can be found in contempt. Although service providers
would have the right to challenge the legality of a directive, it is
unlikely that any service provider would initiate a challenge, since the
bills also entitle the companies to be paid for assisting in the
surveillance and give them complete immunity for compliance with an order.
(The version of the Wilson bill reported by the Intelligence Committee
states that the Attorney General "may require, by written certification"
cooperation in warrantless surveillance but it does not have such explicit
enforcement provisions.)
The Wilson and Specter bills also would allow the government to apply for an
order within -- and conduct warrantless surveillance in an emergency for --
seven days, up from three days under the current version of FISA.
Senators Larry Craig (R-Idaho), John Sununu (R-N.H.) and Lisa Murkowski
(R-Alaska) on Sept. 25 announced that they had agreed to support the Specter
bill. They cited changes made when Sen. Frist introduced the Specter bill
as S. 3931. The changes make no difference to the fundamentals of the bill.
They do not address the fundamental concern that the bill carves out of FISA
large amounts of domestic surveillance.
The Senators cite deletion of language that raises questions about the roles
Congress and the Executive Branch play in regulating surveillance activity
within the United States.
The deleted language was meaningless. The current version of the bill
(introduced by Sen. Frist) still repeals the exclusivity provision and
renders FISA optional, encouraging the President to proceed on his program
and others without judicial approval and setting up case-by-case
constitutional challenges of how far the President can go without a court
order.
-----------------------------------------------------------------
(3) Both Bills Contain Additional Provisions That Threaten Civil Liberties
The bills are similar in many respects, but they also contain some unique
provisions. A conference committee comprised of key members of the House
and Senate would have to work out any differences in the bills after they
were passed by both bodies of Congress.
Chairman Specter's Bill
-Exclusivity versus Blank Check
Chairman Specter negotiated his bill with the Administration and, in
exchange for including several dangerous provisions in the bill, obtained an
unwritten and unenforceable promise that the President would allow the FISA
court to determine whether his warrantless wiretapping program is legal. In
exchange for this promise, Chairman Specter agreed to repeal the
"exclusivity" provision that made FISA (in the intelligence gathering
context) and Title 18 (in the criminal
context) the exclusive means by which the government could conduct
electronic surveillance inside the United States. Deleting the "exclusivity"
provision means that this President and all future Presidents need never
submit another request to the FISA court.
Whether that would be constitutional or not is entirely unclear, casting a
cloud over intelligence gathering.
-Program Warrants
Chairman Specter also agreed to provisions that would authorize a domestic
spying program far broader and more intrusive on the privacy of innocent
Americans than the one the President and Attorney General have described.
The Chairman's bill would authorize surveillance program warrants that could
be directed at domestic calls without the government having to identify whom
it is targeting, in stark contrast to the individualized warrants normally
mandated by the Fourth Amendment. These program warrants could be approved
for an initial 90-day period and then could be renewed for an indefinite
duration.
-Forum Shopping by the Government
What's more, rather than ensuring judicial review of the constitutional
merits of the President's program, the Specter bill actually undermines
judicial review by allowing the government to seek dismissal in any district
court of any challenge to a communications intelligence activity of the
government or, if the government thinks the district court will rule against
it, to transfer the challenge to the Foreign Intelligence Surveillance Court
of Review (FISCR).
Over 30 such cases are currently pending in federal courts around the
country. Chairman Specter's bill would allow the government to seek
dismissal of them on procedural grounds in the district court or to have all
of them transferred to the FISCR, where the government would still be able
to assert the standing doctrine and the state secrets privilege and also
would have the benefit the FISCR's special procedures that allow the
government to present its evidence in secret, making it more difficult for
parties challenging the government program to overcome the evidentiary
burdens they would face.
-Expanded Lone Wolf Provision
The Specter bill also contains a provision that is similar to the PATRIOT
Act's "lone wolf" provision. It would allow the government to obtain a FISA
order to wiretap a non-US person who was engaged in activities relating to
the development or proliferation of "weapons of mass destruction," but who
was not connected to a "foreign power."
Representative Wilson's Bill
Both the House Judiciary Committee and the House Permanent Select Committee
on Intelligence (HPSCI) passed versions of Representative Wilson's bill.
The House Rules Committee will probably devise a single version of the bill
that the full House will vote on this week. Although the House Judiciary
Committee adopted some innocuous amendments, like a requirement that the
Attorney General report on minimization procedures to the congressional
intelligence committees and a finding that Congress has the authority to
regulate the President's inherent power to gather foreign intelligence, the
bills also contain several dangerous provisions that are not in the Senate
version of the bill.
-Immunity for Warrantless Surveillance Activity
In addition to expanding warrantless wiretapping as discussed above by
simply defining much interception of telephone and Internet communications
to not be electronic surveillance, the House Judiciary Committee version
would immunize from liability any person from any activity related to any
electronic surveillance program that was intended to protect the US from a
terrorist attack. This provision would result in the dismissal of all
pending cases challenging the program and would preclude anyone in the
future from bringing an action against the government challenging the
legality of the program.
-Warrantless Surveillance Following Any Attack
The HPSCI version contains a provision that would authorize warrantless
electronic surveillance and warrantless physical searches inside the United
States for 2 months after an "armed attack against the territory of the
United States." The bill does not define "armed attack against the
territory of the United States" and it does not indicate that the attack
must be by a foreign terrorist group. Are US embassies "territory of the
United States?" Was the July 4, 2002 attack at the El Al check-in counter at
Los Angeles airport, in which a solo gunman killed three people, an armed
attack against the territory of the US? How about the attacks of the
Washington DC sniper?
The HPSCI version also adds a detailed new section - "Authorization
Following a Terrorist Attack Upon the United States" - that would allow
warrantless electronic surveillance for 45 days after "a terrorist attack
against the United States" as long as the President
(1) notifies the congressional intelligence committees and (2) a FISA judge
that the US has been "the subject of a terrorist attack" and "identifies the
terrorist organizations or affiliates of terrorist organizations believed
to be responsible for the terrorist attack."
Finally, the HPSCI version contains a provision allowing the Attorney
General to authorize warrantless surveillance for renewable periods of 90
days if the President determines and notifies the congressional intelligence
committees that there is "an imminent threat of attack likely to cause
death, serious injury, or substantial economic damage to the United States."
(Warrantless surveillance of US persons would be limited to a period of 60
days.)
There is no definition of "imminent threat of attack" and it is not limited
to attacks in the United States. Would this include "imminent attacks"
against US soldiers in Iraq? How is "substantial economic damage" defined?
These questions are unanswered.
-----------------------------------------------------------------
(4) Make Your Voice Heard - Call Your Senators and Representatives
CDT has created an online resource where concerned citizens can find the
phone numbers of their Senators and their Representative in the
House:
http://www.cdt.org/action/nsa/
Call your elected representatives today and urge them to vote against the
Specter and Wilson bills. Urge them to support the bi-partisan
Specter-Feinstein bill in the Senate, and any bipartisan alternative that
the House leadership allows a vote on.
_______________________________________________
Detailed information about online civil liberties issues may be found at
http://www.cdt.org/.
This document may be redistributed freely in full or linked to
http://www.cdt.org/publications/policyposts/2006/17
Excerpts may be re-posted with prior permission of [log in to unmask]
Policy Post 12.17 Copyright 2006 Center for Democracy and Technology
_______________________________________________
http://www.cdt.org/mailman/listinfo/policy-posts
--
This message has been scanned for viruses and dangerous content by the
NorMAN MailScanner Service and is believed to be clean.
The NorMAN MailScanner Service is operated by Information Systems and
Services, Newcastle University.
====
This e-mail is intended solely for the addressee. It may contain private and
confidential information. If you are not the intended addressee, please take
no action based on it nor show a copy to anyone. Please reply to this e-mail
to highlight the error. You should also be aware that all electronic mail
from, to, or within Northumbria University may be the subject of a request
under the Freedom of Information Act 2000 and related legislation, and
therefore may be required to be disclosed to third parties.
This e-mail and attachments have been scanned for viruses prior to leaving
Northumbria University. Northumbria University will not be liable for any
losses as a result of any viruses being passed on.
************************************************************************************
Distributed through Cyber-Society-Live [CSL]: CSL is a moderated discussion
list made up of people who are interested in the interdisciplinary academic
study of Cyber Society in all its manifestations.To join the list please visit:
http://www.jiscmail.ac.uk/lists/cyber-society-live.html
*************************************************************************************
|
