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| House Passes Wilson FISA Bill |
September 29, 2006 |
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| Updates 1978 Law to Prevent Terror Attacks & Protect Civil Liberties
Washington, DC – Congresswoman Heather Wilson, chair of the House Subcommittee on Technical and Tactical Intelligence, today welcomed House passage 232-191 of her legislation to update and modernize the 1978 Foreign Intelligence Surveillance Act (FISA).
Wilson authored the Electronic Surveillance Modernization Act (H.R. 5825), which now awaits action by the U.S. Senate, to protect Americans and preserve liberties.
“A court ruling today highlights the clear need for the 109th Congress to clarify and update our foreign intelligence laws,” Wilson said.
“Intelligence is the first line of defense in the war on terror. These are very powerful tools that we use to keep our country safe. Excesses are best prevented when intelligence activities are operated within a framework that controls government power by using checks and balances among the three branches of government.”
Wilson introduced the bill on July 18, 2006, along with Reps. James Sensenbrenner, chairman of the House Judiciary Committee, and Pete Hoekstra, chairman of the House Permanent Select Committee on Intelligence – the two committees of jurisdiction.
“We listen to our enemies. Our intelligence community must be able to gather information to protect us, and react rapidly to threats,” Wilson said. “At the same time, we must ensure that the liberties of Americans are protected. We can do both.”
This bill will modernize our electronic surveillance laws for the twenty-first century. It will set a standard to allow electronic surveillance of people in the United States when there is a reasonable belief that they are communicating with terrorist organizations, and it will clarify the roles of the three branches of government in overseeing electronic surveillance.
The bill also strengthens congressional authority and oversight by making clear that the Congress, as a co-equal branch of government, determines when and how information is shared among members. This change is a result of counter-productive efforts by the executive branch to limit Congressional oversight by resisting the provision of full information to the Intelligence Committees about programs under its jurisdiction.
The bill strengthens congressional authority and oversight, and provides clear rules for electronic surveillance if the President notifies the Congress that he has reason to believe that an attack is imminent that would result in death or serious injury or substantial economic damage. The rules will include time limits, written notification, full justification, and clear identification of the groups and their affiliates believed to be about to launch an attack.
The Electronic Surveillance Modernization Act will:
Strengthen oversight of the executive branch and enhance accountability by requiring that more information be provided to the courts and the House and Senate Intelligence committees receive information concerning electronic surveillance,
Modernize and simplify the process of getting a FISA warrant so that we focus resources on protecting civil liberties of Americans,
Update the FISA law to take into account changes in twenty-first century communications so that our intelligence agencies can use their powerful tools to spy on terrorists while protecting the privacy of Americans,
Provide clear authority to our intelligence agencies in the event of an imminent attack, an armed attack or a terrorist attack on the Unites States, along with more stringent accountability to ensure American privacy is protected, and
Remove several outdated limitations in current law that hamper the ability of our intelligence agencies to keep Americans safe and have provided unintentional protection for terrorists and their affiliates.
Section-by-Section of H.R. 5825
Section 1 Title
Section 2 of the Act would update the definition of electronic surveillance. This change would update the law to take into account significant changes in technology since the 1978 passage of FISA. This section would remove the current distinction between treatment of “wire” and “radio” communications, and use a technology-neutral definition of electronic surveillance. This section also provides protection for persons with a reasonable expectation of privacy if both the sender and all intended recipients are located within the United States.
Section 3 of the Act would modernize the law by including providers of any electronic communication service, landlord, custodian, or other person who has access to electronic communications. This section updates the current “common carrier” definition. This section would also provide the Attorney General the authorization to direct a person to provide the government will all the assistance necessary to acquire foreign intelligence information.
Section 4 adds to the Act that the Attorney General is authorized by the President to approve applications to the court approving surveillance.
Sections 5 & 6 of the Act would simplify the process of developing information to get approval of a FISA warrant. This section would reduce the volume of material required for a FISA application, including reducing the detailed description of the nature of foreign intelligence information sought and the detailed descriptions of the intended method of collection. The FISA application should focus on probable cause for a warrant rather than technical details about the means of collection. The Attorney General would have up to seven days to file for an emergency application.
Section 7 clarifies and makes conforming changes with respect to previous sections and FISA.
Section 8 would strengthen congressional oversight by amending current law to provide authority to the Chairman of each of the Intelligence Committees to notify all Members or individual Members of the Committees, on a bipartisan basis and as the Chair considers necessary, of reporting of intelligence activities received under the National Security Act.
Section 9 of the Act would allow the surveillance to remain in force if the target returns to the United States after leaving the country.
Section 10 of the Act would provide that no cause of action shall lie against a person who complies with a lawful order to help the Attorney General in protecting the United States from attack.
Section 11 of the Act would provide for a report that would be prepared annually until December 31, 2009. The report would be submitted to Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate on the effectiveness and use of minimization procedures applied to information concerning United States persons acquired by means that were considered electronic surveillance on the date of enactment, but no longer are considered electronic surveillance under this Act.
Section 12 updates the current FISA provisions for electronic surveillance to provide clear authority for our intelligence agencies in the event of an armed attack on the United States. The President, through the Attorney General, is authorized to collect electronic surveillance without a court order to acquire foreign intelligence information for a period not to exceed 90 days following an armed attack against the territory of the U.S. The current statute allows for 15 days after a declaration of war by the Congress. Notification to the HPSCI and SSCI is required.
Section 13 of this Act governs electronic surveillance after a terrorist attack. The President, acting through the Attorney General, would have the authority to authorize electronic surveillance to acquire foreign intelligence information without an order when the terrorist organizations and their affiliates responsible for the attack have been identified and notified to the Congress and the FISA court, when there is a reasonable belief that the target is communicating with a terrorist organization, for a period not to exceed 90 days following a terrorist attack against the U.S. Notification to the HPSCI and SSCI and to the FISA court is required. The President may submit a subsequent certification to Congress which would allow for an additional 90 days of electronic surveillance.
Section 14 allows the President to authorize electronic surveillance when there exists an imminent threat of attack likely to cause death, serious injury, or substantial economic damage to the United States when the entities and their affiliates responsible for the threat have been identified and notified to the Congress and the FISA court, when there is a reasonable belief that the target is communicating with those entities and affiliates, for a period not to exceed 90 days. The President must submit notification to Congress as soon as practicable, but not later than five days after the authorization. The President may submit subsequent certifications to Congress which would allow for additional 90 day periods of surveillance, with notification to additional congressional committees.
Section 15 of this Act makes technical and conforming amendments to the Foreign Intelligence Surveillance Act of 1978.
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