After passing a six-month "emergency" surveillance bill in August 2007 - to grapple with holes in US wiretapping powers while trying to legalize a previous secret spying program - Congress passed a long term solution in July '08.
The House and Senate originally had different takes on where to hinge the balance between security and civil liberties (their respective bills are listed below). At issue was how much oversight the courts should have when spying on calls to and from terrorist groups when one person on the call may be in the US - and also whether or not to give phone companies retro-active immunity for giving the feds access to phone calls under a previous, secret wiretapping program. As of the end of June '08, both chambers hatched a compromise, HR 6304, which passed both chambers over the summer.
We offer a glimpse of each chamber's bills below - alongside last year's slap-dash bill.
For background on the secret NSA program and what's been happening on Capitol Hill since, see our NSA Wiretap brief.
|"Emergency" bill - S 1927||House Bill - HR 3773||Senate Bill - S 2248|
| Lets the feds okay surveillance of “persons outside the US” – without a warrant – if: a “significant purpose” of the surveillance is to get foreign intelligence information, and they follow court okayed procedures to try to assure that the target is really outside the US and that there’s minimal intrusion on their privacy.
Requires the feds report to Congress every six months on how the program’s going.
Says warrants aren’t required for wiretaps between two non-US persons who are outside the US – whether or not the calls are routed through the US.
Lets the feds get a one-year warrant to tap non-US citizens outside the US “for intelligence purposes.” Courts have 15 days to okay an application for a warrant.
Lets the feds do emergency wiretaps for up to 45 days without a court warrant, but requires they go for court approval within seven days. Judges have 24 hours to okay emergency applications.
Requires the feds report quarterly to Congress on its warrant applications and once a year on its emergency wiretapping.
Does not give telecom companies retroactive immunity.
Lets the feds okay warrant-less wiretaps for up to one year of “persons located outside the US” in order to get “foreign intelligence information” as long as: they are not doing so to really keep tabs on someone in the US (in which case they’d have to get a warrant), there’s minimal intrusion on the tap-ees’ privacy, and they are following procedures okayed by the courts.
For “US persons” outside the US, the feds can start a wiretap after they certify to the courts that: their target is believed to be outside the US, their procedures are consistent with the 4th amendment, a “significant purpose” of the tap is to get “foreign intelligence information,” and they’ve followed minimal intrusion procedures okayed by the courts.
Requires the feds review their targeting and “minimization” procedures every six months and report on them to the courts and Congress.
Gave telecom companies retroactive immunity from lawsuits over their cooperation with the government on a previously illegal wiretap program.
The Final Compromise
The final deal worked out by House and Senate leaders, HR 6304:
- clarifies that the FISA law (which this bill is updating) is the exclusive means of all "domestic" spying. That was added in to make clear that a president could not trump the law by saying he had powers outside the law to protect the country.
- lets telecoms get immunity from previous lawsuits by showing a FISA court that they had received written assurance from the administration that what they were doing was legal
- lets the feds spy on Americans at home for up to seven days without a warrant in emergency situations
Holding in court: After a company contested the 2007 law allowing the administration to spy on Americans without a warrant, a FISA court ruled in '08 that the president did, constitutionally speaking, have that authority. (NYT)