On Thursday, the Senate is expected to begin consideration of H.R. 5949, the Foreign Intelligence Amendments Act of 2012 (FAA). The bill would reauthorize amendments to the 1978 Foreign Intelligence Surveillance Act (FISA), which are set to expire December 31.
FISA created a secret court to review wiretap applications for national security investigations conducted in the U.S. that involve foreign powers or their agents. With FISA, Congress recognized the need to distinguish between rigorous judicial review of intelligence surveillance efforts in the U.S. (where the Fourth Amendment applies) and allowing the government to conduct surveillance overseas (where the Fourth Amendment does not apply) without judicial oversight.
These distinctions were made through the definition of “electronic surveillance.” The advent of modern technology, however, has made this distinction less clear. Today, an increasing number of calls and e-mails pass though the U.S. without it being clear whether both ends of the communications are occurring outside the U.S. The government has thus had to expend significant manpower generating FISA court applications for surveillance against persons outside the U.S., even though Congress meant to exclude these targets when it enacted FISA.
The original FAA, first passed in 2008, addressed this problem by allowing the FISA court to streamline approval for surveillance of suspected foreign state and terrorist agents without requiring an individualized application for each target—so long as the government reasonably believes the targets are located outside the U.S. Individual warrants, however, are still required if the target is a U.S. citizen regardless of where he is located and even if the government believes he is acting as a foreign agent.
In order to prevent abuse, the FAA also required that the Attorney General and Director of National Intelligence provide the FISA courts with an annual certification of the categories of foreign intelligence targets subject to surveillance. It also required that they certify that procedures are in place to prevent the intentional and unintentional acquisition of individuals known to be in the U.S. and the retention of information on U.S. citizens. The certification must also ensure compliance with the Fourth Amendment, which prohibits unreasonable search and seizures.
In November, the House passed a clean, five-year authorization of the 2008 FAA. While both the White House and many Senate Republicans have pushed for the straightforward passage of the House legislation, others, including Senate Majority Leader Harry Reid (D–NV), have sought consideration of the bill with a limited number of amendments. While some of these amendments simply seek greater clarification on how the FISA courts interpret the provisions within the bill, others would substantially change the nature of the legislation.
Even with limited concerns, however, Senator Reid has made it clear that FISA is “necessary to protect us from the evil in this world.” Indeed, it ensures that U.S. counterterrorism officials have the tools they need to keep America safe. It’s now up to Senator Reid and his colleagues to ensure that key amendments and updates to FISA are not allowed to expire and are not hampered by misguided amendments to the FAA.