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United States Law From Wikipedia, the free encyclopedia
The FISA Amendments Act of 2008, also called the FAA and Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008,[1] is an Act of Congress that amended the Foreign Intelligence Surveillance Act.[2] It has been used as the legal basis for surveillance programs disclosed by Edward Snowden in 2013, including PRISM.[3]
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| Long title | An Act to amend the Foreign Intelligence Surveillance Act of 1978 to establish a procedure for authorizing certain acquisitions of foreign intelligence, and for other purposes. |
|---|---|
| Nicknames | FISA Amendments Act of 2008 |
| Enacted by | the 110th United States Congress |
| Effective | July 10, 2008 |
| Citations | |
| Public law | 110-261 |
| Statutes at Large | 122 Stat. 2436 |
| Codification | |
| Acts amended | Foreign Intelligence Surveillance Act USA PATRIOT Act Protect America Act of 2007 |
| Titles amended | 50 U.S.C.: War and National Defense |
| U.S.C. sections amended | 50 U.S.C. ch. 36 § 1801 et seq. |
| Legislative history | |
| |
| Major amendments | |
| USA Freedom Act | |
Warrantless wiretapping by the National Security Agency (NSA) was revealed publicly in late 2005 by The New York Times and then reportedly discontinued in January 2007.[4] See Letter from Attorney-General Alberto Gonzales to Senators Patrick Leahy and Arlen Specter, CONG. REC. S646-S647 (January 17, 2007).[5] By 2008 approximately forty lawsuits had been filed against telecommunications companies by groups and individuals alleging that the Bush administration illegally monitored their phone calls or e-mails.[6] Whistleblower evidence suggests that AT&T was complicit in the NSA's warrantless surveillance, which could have involved the private communications of millions of Americans.[7]
The Foreign Intelligence Surveillance Act makes it illegal to intentionally engage in electronic surveillance under appearance of an official act or to disclose or use information obtained by electronic surveillance under appearance of an official act knowing that it was not authorized by statute; this is punishable with a fine of up to $10,000 or up to five years in prison, or both.[8] In addition, the Wiretap Act prohibits any person from illegally intercepting, disclosing, using, or divulging phone calls or electronic communications; this is punishable with a fine or up to five years in prison, or both.[9]
The FISA Amendments Act also added a new Title VII to FISA which contained provisions similar, but not identical to, provisions in the Protect America Act of 2007 which had expired earlier in 2008.[10] The new provisions in Title VII of FISA were scheduled to expire on December 31, 2012, but two days before the U.S. Senate extended the FISA Amendments Act for five years,[10] which renewed the U.S. government's authority to monitor electronic communications of foreigners abroad. In January 2018 this was extended by six more years.
Section 702 permits the Attorney General and the Director of National Intelligence to jointly authorize targeting of non-US persons reasonably believed to be located outside the United States.
By targeting it is meant that US persons or persons located in the United States may not be the intended targets of the collection. The targeting must have as its object the acquisition of foreign intelligence information, as this is defined by FISA.[11]
This does not mean the communications of US persons can not be collected, as they are subject to what is known as incidental collection under some circumstances, such as when they communicate with non-US persons who are the targets of the collection.[11]
Under § 702(b) of the FISA Amendments Act, acquisitions are subject to several limitations.
Specifically, an acquisition:
Section 702 certifications are authorized annually. There are some differences from the traditional Title I FISA process. The certifications are authorized based on categories of information that are subject to the collection and meet the definition of foreign intelligence information. The authorized certifications include international terrorism, acquisition of weapons of mass destruction and other topics.[11]
Section 702 authorizes foreign surveillance programs by the National Security Agency (NSA), like PRISM and some earlier data collection activities which were previously authorized under the President's Surveillance Program from 2001.
The United States Foreign Intelligence Surveillance Court (FISA Court) ruled that the FBI used the identifiers of 16,000 persons though the FBI could legally justify only seven based on the required foreign intelligence or crime-fighting purposes. There were queries that were not reasonably likely to retrieve foreign-intelligence information or evidence of crime, such as queries to vet a potential source, candidates for local police, college students participating in a "Collegiate Academy", and of individuals who had visited the FBI office. It also noted other instances of noncompliance.[13][14]
Section 704 permits the Foreign Intelligence Surveillance Court to authorize surveillance targeting US persons outside the United States to acquire foreign intelligence information. Unlike Section 702, Section 704 requires an order from the FISA Court. This is claimed as an "additional protection for U.S. persons that did not exist prior to the FAA".[15]
A group of netroots bloggers and Representative Ron Paul supporters joined together to form a bipartisan political action committee called Accountability Now to raise money during a one-day money bomb, which, according to The Wall Street Journal, would be used to fund advertisements against Democratic and Republican lawmakers who supported the retroactive immunity of the telecommunications company.[30]
Specifically, the Act:[31]
The American Civil Liberties Union (ACLU) filed a lawsuit challenging the FISA Amendments Act of 2008 on the day it was enacted. The case was filed on behalf of a broad coalition of attorneys and human rights, labor, legal, and media organizations whose ability to perform their work—which relies on confidential communications—could be compromised by the new law.[36] The complaint, captioned Amnesty et al. v McConnell and filed in the United States District Court for the Southern District of New York, argued that the eavesdropping law violated people's rights to free speech and privacy under the First and Fourth Amendments to the Constitution.[37] The case was dismissed from the district court on the grounds that the plaintiffs could not prove their claims, but was revived in March 2011 by the United States Court of Appeals for the Second Circuit, which disagreed.[38] The subsequent citation was Amnesty v. Blair.
In an internet broadcast interview with Timothy Ferriss, Daniel Ellsberg compared the current incarnation of FISA to the East German Stasi.[39] Ellsberg stated that the powers which were currently being given to the federal government through this and other recent amendments to FISA since the September 11 attacks opened the door to abuses of power and unwarranted surveillance.
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