Senate Appears Ready to Rollover on FISA

The Senate held a hearing on the FISA legislation this week and there seems little good news out of that house for civil libertarians. First, senators are still doing the bidding of telecommunications companies in seeking immunity – despite efforts by senators like Chris Dodd. The provision would wipe out dozens of hard fought cases brought by privacy groups and citizens. It would eliminate one of the only remaining protections for customers and excuse any past abuse of their privacy and contractual rights. Even Senators like Leahy who express “concern” with immunity are talking about the need to review material before including such immunity. There should be no need for such a review. There is no public policy justification for immunity regardless of those documents. The Bush Administration lacked authority to demand this information and these companies failed to fight for their customers. If there is clearly a reasonable basis for granting access, the companies should make that argument in a court of law. If Congress does anything in the matter, it should be tweaking procedural rules to guarantee a final judgment on the controversy.

Second, the legislation continues to replace the clarity of the constitutional requirement of probable cause and a warrant with a fluid and largely secret process in control of the Executive Branch.

The specific language of Section 701 is a recipe for abuse that will be handed to an Administration that has previously abused the very same law. For example, the section states “nothing in the definition of electronic surveillance under section 101 (f) shall be construed to encompass surveillance that is targeted in accordance with this title at a person reasonably believed to be located outside the United States.” This leaves ambiguity as to the other person in the conversation who may be inside the country. More importantly, the law should extend the protections of FISA to U.S. citizens regardless of whether they are inside or outside the country.

There remains facially inadequate in terms of oversight and protections, including reliance on the same oversight committees in Congress that have repeatedly failed to protect citizens from abuse. The bill also fails to mandate a FISA order (which falls below the constitutional standard) before the execution of surveillance except in emergency or exigent circumstances.

In other words, while there are improvements, the bill currently represents a windfall for corporations and deadfall for privacy.