Having read several dairies on FISA and seen posters go "Man why are the FISA freaks freaking over this, duh?". How is our 4th amendment rights effected?
Do yourself a favor and read below the new bill that is set and coming towards you like a freight train hurdling itself against your constitutional rights. New FISA is not just a battle over the telcom immunity piece. The explanation below is relayed in baby steps, so no excuse for not comprehending FISA anymore. YOU HAVE NO excuse continuing to be ill-informed and yet try to act like you know the new bill when commenting in those diaries.
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The FISA deal announced on June 19 effectively grants retroactive immunity to companies that allegedly participated in the President's illegal wiretapping program, and it does not provide adequate protections for innocent Americans. Title I of the new bill, which includes a dramatic expansion of the Foreign Intelligence Surveillance Act, does not include the most significant safeguards approved by the Senate Judiciary Committee, and it does not include any of the amendments that Senator Feingold offered on the Senate floor earlier this year, each of which received 35 or more Democratic votes. These safeguards would have permitted the government to obtain the intelligence information it needs while also protecting the privacy of law-abiding Americans.
Background
The purpose of the bill is to address a problem that everyone agrees should be fixed - namely, making clear that the government does not have to get a warrant for foreign-to-foreign communications that happen to pass through the U.S. The new bill goes far beyond this narrow fix, however. It allows the government to listen in on international communications to and from law-abiding Americans in the U.S. who have no connections to terrorism, and the checks on this international dragnet authority are entirely inadequate.
Lengthy Sunset
The bill sunsets in December 2012, a mere one year earlier than the Senate bill and a presidential election year.
Little Protection Against Reverse Targeting
The bill prohibits intentionally targeting a person outside the U.S. without an individualized court order if "the purpose" is really to target someone reasonably believed to be in the U.S., and it requires the executive branch to establish guidelines for implementing this requirement. But the guidelines are not subject to judicial review, and the bill does not include provisions approved by the Senate Judiciary Committee bill that would require the government to obtain a court order whenever a significant purpose of the surveillance is to acquire the communications of an American. This important "significant purpose" language had the support of 38 Senators when offered on the Senate floor, and was included in the House bill.
No Prohibition on Bulk Collection
The bill does not include a prohibition on bulk collection - the collection of all international communications into and out of the U.S. to a whole continent or even the entire world. Such collection would be constitutionally suspect and would go well beyond what the government has says it needs to protect the American people. This protection was in the Senate Judiciary Committee bill, and it garnered the support of 37 Senators on the Senate floor.
Loophole for Advance Judicial Approval of Court Orders
Under the bill, surveillance can begin after the FISA Court authorizes the program, or if the Attorney General and Director of National Intelligence certify that they don't have time to get a court order and that intelligence important to national security may be lost or not timely acquired. This broad `exigency' exception could very well swallow the rule, and undermine any presumption of prior judicial approval.
No Limits on Use of Illegally Obtained Information
If the government goes forward with surveillance before obtaining court approval, and the court subsequently determines that the government's surveillance violated the law, the government can nonetheless keep and use any information it obtained. The compromise does not include a provision from the Senate Judiciary Committee bill that gives the FISA Court discretion to impose restrictions on the use of information about Americans acquired through procedures later determined to be illegal by the FISA court. This amendment had the support of 40 Senators on the Senate floor.
Few Protections for People in the United States
The bill does not include anything similar to the amendment offered by Senators Feingold, Webb and Tester (with 32 other Senators supporting) to provide additional checks and balances for Americans at home whose international communications are obtained because they are communicating with someone overseas, while also allowing the government to get the information it needs about terrorists and purely foreign communications.
Some Areas of Improvement
The bill contains some areas of improvement, but they do not address the serious privacy problems with the Senate bill.
The bill contains strong language making clear that FISA and the criminal wiretap laws are the exclusive means by which electronic surveillance may be conducted.
The bill contains an Inspector General review of the so-called "Terrorist Surveillance Program."
The bill no longer redefines the key FISA term of "electronic surveillance."
• [ACLU's Idiots Guide to FISA].H.R. 6304 permits the government to conduct mass, untargeted surveillance of all communications coming into and out of the United States, without any individualized review, and without any finding of wrongdoing.
• H.R. 6304 permits only minimal court oversight. The Foreign Intelligence Surveillance Court (FISA Court) only reviews general procedures for targeting and minimizing the use of information that is collected. The court may not know who, what or where will actually be tapped.
• H.R. 6304 contains a general ban on reverse targeting. However, it lacks stronger language that was contained in prior House bills that included clear statutory directives about when the government should return to the FISA court and obtain an individualized order if it wants to continue listening to a US person’s communications.
• H.R.6304 contains an “exigent” circumstance loophole that thwarts the prior judicial review requirement. The bill permits the government to start a spying program and wait to go to court for up to 7 days every time “intelligence important to the national security of the US may be lost or not timely acquired.” By definition, court applications take time and will delay the collection of information. It is highly unlikely there is a situation where this exception doesn’t swallow the rule.
• H.R. 6304 further trivializes court review by explicitly permitting the government to continue surveillance programs even if the application is denied by the court. The government has the authority to wiretap through the entire appeals process, and then keep and use whatever it gathered in the meantime.
• H.R. 6304 ensures the dismissal of all cases pending against the telecommunication companies that facilitated the warrantless wiretapping programs over the last 7 years. The test in the bill is not whether the government certifications were actually legal – only whether they were issued. Because it is public knowledge that they were, all the cases seeking to find out what these companies and the government did with our communications will be killed.
• Members of Congress not on Judiciary or Intelligence Committees are NOT guaranteed access to reports from the Attorney General, Director of National Intelligence, and Inspector General.
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