Why We Should All Care About Today's Senate Vote on FISA

https://www.eff.org/deeplinks/2012/12/why-we-should-all-care-about-senates-vote-fisa-amendments-act-warrantless-domestic

by mtgx • 14 years ago

111 40 14 years ago

eff.org

twoodfin4• 14 years ago

In brief, the law allows the government to get secret FISA court orders—orders that do not require probable cause like regular warrants—for any emails or phone calls going to and from overseas.

Is it somehow shocking that a probable cause standard doesn't apply to national security intercepts of cross-border communication? Customs doesn't need a warrant to search your bags at the border, either.

The key point of FISA is not to legalize spying on communications among foreign nationals or between foreign nationals and Americans. Such spying has been considered part of the Executive's national security authority for decades. The key point of FISA is to ensure that intercepts between Americans that are subject to Fourth Amendment protections are avoided by design and deleted when discovered.

Congress couldn't obligate the Executive to get an "Army Court" order before ordering a division to take a city. There's a little more sense to the obligation here, since they're just as responsible as any other branch of the government for protecting Americans' Constitutional rights. But these orders aren't meant to act as warrants: They're oversight tools.

HistoryInAction5• 14 years ago

More specifically, they're oversight tools set up in 2006, following the awareness of the Bush Administration's use of warrentless wiretaps. The FISA revisions were to extend the flexibility of judges who were already allowed to retroactively provide legal permission up to 48 hours after the initial wiretapping began and approved over 95% of the wiretaps requested.

The Bush Administration simply refused to go through even that rubberstamp process. I was an intern in the House office where the initial compromise that became this bill was proposed, even if it was later named for a much more senior Congressman.

The FISA deal was a small retraction following a huge jump forward in intrusive government powers, so I'm proud to be supporting EFF's efforts to push privacy forward as much as possible, in light of the PATRIOT Act's overreach and similar during the past decade.

twoodfin4• 14 years ago

So do you think there should be a "probable cause" standard to warrant intercepting a call between Chicago and Cairo? Do you think the Constitution requires one?

jellicle2• 14 years ago

> Is it somehow shocking that a probable cause standard doesn't apply to national security intercepts of cross-border communication?

USPS regulations prohibit reading of letter-mail crossing the border unless a warrant has been obtained.

So the answer is yes, it's shocking. Your email has fewer privacy protections than the same email printed out and mailed.

> The key point of FISA is not to legalize spying on communications among foreign nationals or between foreign nationals and Americans.

You may have entirely missed the debate a few years ago about amnesty for telecoms who participated in spying on Americans, directly against the law, but, well, that's on you.

In fact FISA at its last renewal was expressly and completely about legalizing spying on domestic communications between Americans. Which it did.

tptacek8• 14 years ago

Customs can search all incoming and outgoing USPS mail. The statute says so explicitly, and mentions the USPS directly. I think you might be thinking of state borders.

fisadev• 14 years ago

it's really funny when you read this article and you are called "fisa" :)

ibejoeb• 14 years ago

Video and transcript available at http://www.c-spanvideo.org/program/SenateSessionPartOne2

Starts at 13:55.

tibbon• 14 years ago

Was there a vote at the end?

mtgx• 14 years ago

FYI, all the amendments meant to "fix" FISA on privacy issues were rejected. The one from Rand Paul that required a warrant for all spying and data requests on American citizens, just like currently a warrant is required for snail mail and phone call spying - was rejected 79-12. America - the land of the free.

dguido• 14 years ago

Isn't having your request to obtain information reviewed by the FISA court judge kind of like having a warrant issued for it?

I also thought that part of the point of the FISA court was that it contains the spread of classified information to just a few judges, who gain increasing expertise in understanding how to handle it, rather than spreading classified info all over a sea of amateurs.

hayksaakian• 14 years ago

So how did it go?

Why We Should All Care About Today's Senate Vote on FISA

Related Stories