Two committees within the U.S. House of Representatives have approved a bill put forth by Democrats this week as an alternative to the broad surveillance legislation rushed through in August to update the Foreign Intelligence Surveillance Act (FISA) of 1978.
Known as the “Restore Act,” short for the Responsible Electronic Surveillance that is Overseen, Reviewed, and Effective Act of 2007 (H.R. 3773), the new bill seeks to scale back government freedoms included in the Protect America Act, which was passed in August amid widespread privacy concerns and is due to expire in February.
The Restore Act passed 20-14 in the House Judiciary Committee and 12-7 in the House Permanent Select Committee on Intelligence in Wednesday votes. A vote by the full House of Representatives is expected next week.
“We’ve put the FISA court back in business after President Bush and Vice President Cheney secretly put it out of business six years ago,” said Silvestre Reyes (D-Texas), chairman of the House Intelligence Committee. “This bill gives strong tools to our intelligence professionals while upholding Constitutional protections for all Americans.”
The need to update FISA became a controversial issue in August following news early in the month that a special FISA court had made a secret ruling in recent months limiting the government’s authority to eavesdrop on phone calls and e-mails.
The Protect America Act, granting the government more freedom to wiretap without warrants, was rushed through shortly thereafter, just before the start of Congress’s August recess, after a Democratic alternative was defeated. A sunset clause was included to force the issue to be reexamined in six months.
Last month, President Bush said he wanted not only to make the Protect America Act permanent, but also to expand it with retroactive immunity for telecommunications companies that have come under fire for their role in wiretapping efforts conducted by the National Security Agency (NSA). AT&T, for instance, is involved in a lawsuit brought by the Electronic Frontier Foundation for its assistance in the NSA’s broad-scale wiretapping efforts.
Checks and Balances
The Restore Act was introduced on Tuesday by House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) and Reyes in an effort to address concerns about civil liberty protections in the Protect America Act.
It is designed to provide a series of checks and balances so that FISA requirements are upheld unless there is express legal authorization. It does not require individual warrants when targets are reasonably believed to be abroad, but it does demand a FISA warrant to listen in on the communications of people in the United States.
The new bill will also provide additional resources for the National Security Agency and Department of Justice to ensure that there are no backlogs of critical intelligence gathering. Audits by the Office of the Inspector General, including an initial audit that will cover previous warrantless surveillance programs conducted by the Bush administration, will provide ongoing independent oversight and review.
‘A Step Backward’
Bush responded to the bill’s success in the house by asserting that it “would take us a step backward.” He also said he would not sign any legislation into law unless it provided liability protection to telecom firms.
“Those who oppose this bill are doing so for one reason: They are trying to convince Americans that those of us who support this legislation are somehow less committed to protecting this country from attack,” Chairman Conyers said. “They will pretend this bill doesn’t meet our nation’s security needs, despite the fact that it gives the Director of National Intelligence everything he said he needed.
“Americans are willing to make sacrifices to meet true national security imperatives, but they should not give up their rights unnecessarily, just to allow one political party to score points.” he added. “This bill — the Restore Act — successfully provides the national security tools needed to go after terrorists and protects vital rights of Americans. The bill’s opponents know this but find it more convenient to pretend otherwise.”
No ‘Get Out of Jail Free’ Card
“I think it’s better than what was passed in August,” Marc Rotenberg, executive director of the Electronic Privacy Information Center (EPIC), told the E-Commerce Times. “The fact that it does not provide a ‘Get Out of Jail Free’ card for companies is critical.”
The real test, however, will be whether the FISA court will play a meaningful role in reviewing surveillance activity under the proposed legislation, he added.
“It’s very important for consumers to have this protection,” added Lillie Coney, EPIC’s associate director. “It has a detrimental effect if people don’t have security in the communications they engage in.”
Good laws need to be in place, and all companies must be held to the same standards, Coney added.
“We want transparency in what companies have been doing and we want the rule of law to apply,” Coney told the E-Commerce Times. “These laws were designed to protect society, and companies need to understand that if they violate them, there will be implications.”