Does anyone know the bill number of the new FISA law? Kooks and Liars thinks the contents of the bill are classified, but I rather doubt that. I’m reserving further judgment on the bill until I’ve … um … read it.
UPDATE: I was right, the law isn’t classified after all. Patterico has a link to it, it’s S. 1927. Thomas doesn’t play nice with deep links, and PDFs are clunky, so here’s the text of the bill in full, with my coments:
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘Protect America Act of 2007′.
OK, that I can do without. Sure, it does that, but c’mon, they could have done better than that. If vanilla names like “FISA Update Act” are too boring, they could always have called it the “Make Glenn Greenwald and Russ Feingold Cry In Each Other’s Beer Act” instead.
SEC. 2. ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN ACQUISITIONS OF FOREIGN INTELLIGENCE INFORMATION.
The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by inserting after section 105 the following:
‘CLARIFICATION OF ELECTRONIC SURVEILLANCE OF PERSONS OUTSIDE THE UNITED STATES
Sec. 105A. Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.
From this, Kooky Liar Steve Benen deduces:
Whereas the law previous insisted that the administration get FISA Court-approved search warrants to eavesdrop on communications involving Americans citizens on U.S. soil, this new law changes the landscape. If the federal government wants to spy on someone, and the target is “reasonably believed” to be overseas, a warrant is no longer necessary.
Um, no. The old version never required a warrant to eavesdrop on communications involving American citizens on U.S. soil where the target of the surveillance was overseas. Here’s the definition of “electronic surveillance,” before and after:
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
This definition is irrelevant to Benen’s babbling, as it applies only to situations where the person on U.S. soil was the target. At most, the new provision helps the government in the situation where they reasonably but incorrectly believe that person (not the U.S. schmuck he is talking to) to be abroad.
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18, United States Code;
Meaning, if the NSA reasonably believes that a conversation is between two individuals abroad, but one of them really is in the U.S., what was previously an inadvertent FISA violation is now kosher. If that scares the bejeezus out of you, stop using your non-U.S. cell phone or VOIP number in the U.S., act like a normal U.S. person in the U.S., and any perception on NSA’s part that you are abroad will be unreasonable, and the new law will not change anything.
On the flip side, if you read this definition carefully, you’ll see the old version of FISA allows precisely what Benen decries: if the federal government wants to spy on someone, and the target really is overseas, no FISA warrant is necessary so long as the acquisition of the information occurrs outside the United States. This crucial element is almost completely absent from the FISA debate we’ve seen over the past couple of years, with the Glenn Greenwalds, the Russ Feingolds and the New York Timeses simply ignoring the fact that if NSA’s wiretaps were conducted abroad or in international waters, the Bush Administration never violated FISA in the first place. Didi you really feel that much safer before, knowing that the federal government could eavesdrop on your international calls to its heart’s content, but only if the taps took place outside the jurisdictional boundaries of the United States?!
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States;
Again, this definition is left mostly unchanged, except in the rare situation where the federal government reasonably believes it’s listening in on an international conversation, but for some odd reason everyone really is inside the United States. After all, when it comes time to prevent the next 9-11, it’s critically important to our national security that we can all eavesdrop on Osama bin Laden in Afghanistan, but not on Mohammad Atta here in the U.S.
or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
Which, of course, never covered targets abroad.
Then there’s the new Section 105B of FISA that allows an additional procedure which requires, among other things, that the acquisition “not constitute electronic surveillance,” i.e., was outside the ambit of the old FISA as well as the new, and the new Section 105C, which requires the Attorney General to submit to the FISA court the procedures by which they determine that the surveillances in question are outside the ambit of FISA. The old FISA contained no such requirement; if a wiretap was outside the definition of “electronic surveillance,” FISA by its terms, including the provisions for judicial review, did not apply. Granted, the new “clearly erroneous” standard is rather difficult to meet, but from the perspective of those concerned about government surveillance, “clearly erroneous” review is better than no review at all. Finally, there’s a section requiring further oversight by Congress. Oh yeah, and the whole thing sunsets in six months.
Pretty scary, huh? It should be, if you’re planning on talking to al Qaeda members on the telephone over the next six months. Otherwise, not so much.
UPDATE: Interesting discussion here.