The Volokh Conspiracy

The New FISA Law -- and the Misleading Media Coverage Of It: I've been studying the new FISA legislation, as well as the press coverage of it, and so far I've found a major disconnect between the two. The MSM is presenting the new legislation as a major expansion of government surveillance powers. Here is how the Eric Lichtblau of the New York Times introduced the Senate's passage of the bill:

  The Senate gave final approval on Wednesday to a major expansion of the government’s surveillance powers, handing President Bush one more victory in a series of hard-fought clashes with Democrats over national security issues.
  The measure, approved by a vote of 69 to 28, is the biggest revamping of federal surveillance law in 30 years.

  But is that true? The new law is very complicated, and I've only been studying it for a few hours. It's quite possible that I'm missing something important. But based on my first reading, the media coverage of the new law strikes me as quite inaccurate.

  As I see it, the new law takes the basic approach of the Protect America Act of 2007 and adds privacy protections and bolsters the scope of judicial review. On the whole, the new law strikes me as pretty good legislation: It nicely responds to the widely expressed fears last year about how the Protect America Act could be implemented. and it ensures that the FISA Court will play a major role in reviewing surveillance of individuals located outside the U.S. Indeed, it seems to me that the new rules create pretty much the regime that critics of the Protect America Act wanted back in 2007.

  So the question is, why is the press coverage painting such a different picture? I think there's a reason, but it doesn't have very much to do with the new surveillance rules. In this post, I want to summarize how the new surveillance rules compare to those under the Protect America Act of 2007, and then I want to consider why the press is reporting the new law as it is.

  First, a bit of background. The legal rules for monitoring individuals outside the United States has become an important issue under FISA because many foreign Internet and telephone communications are now routed through the United States in the course of delivery. For example, a person in Pakistan who calls another person in Pakistan might have the call routed through New York. This creates an opportunity for monitoring of that communication from inside the network of the provider located in New York.

  The legal question is, what kinds of rules should govern monitoring directed at targets overseas from inside the United States? The original FISA of 1978 wasn't supposed to regulate surveillance of individuals outside the United States, but then back in those days you didn't have foreign to foreign calls routed through the U.S. So what happens when technology changes?

  The Protect America Act of 2007 required the Executive to submit plans for monitoring individuals overseas to the Foreign Intelligence Surveillance Court (FISC). The FISC would then determine whether the monitoring plans were “directed at a person reasonably believed to be located outside of the United States.” So long as it was not “clearly erroneous” that the proposals were “reasonably” so directed, the FISC had to approve the monitoring. The monitoring could occur for one year. See 50 U.S.C. §§ 1805B (2007). But the Protect America Act sunset after six months, requiring new legislation to be passed if Congress wished to authorize such surveillance in the future.

  At the broadest level, the new Act continues the basic approach of the Protect America Act while adding more judicial review in significant ways. As in the Protect America Act, the government submits monitoring plan to the FISC as to whether the monitoring plans were "directed at a person reasonably believed to be located outside of the United States." The FISC then reviews the plan to see whether it does so or not. At the same time, it looks to me like the new law has considerably more judicial review than the Protect America Act.

Strange Op-Ed By Chris Hedges: The new FISA amendments compare to last year's Protect America Act by expanding judicial review dramatically, clarifying that the law cannot be used to monitor individuals inside the United States without a warrant, and imposing, for the first time, a warrant requirement on the surveillance of Americans overseas (in addition to the preexisting warrant requirement on the surveillance of Americans inside the United States). It is a major improvement over last year's law from a civil libertarian perspective. So how does former New York Times reporter Chris Hedges describe the new law? Let's take a look:

If the sweeping surveillance law signed by President Bush on Thursday — giving the U.S. government nearly unchecked authority to eavesdrop on the phone calls and e-mails of innocent Americans — is allowed to stand, we will have eroded one of the most important bulwarks to a free press and an open society.

The new FISA Amendments Act nearly eviscerates oversight of government surveillance. It allows the Foreign Intelligence Surveillance Court to review only general procedures for spying rather than individual warrants. The court will not be told specifics about who will be wiretapped, which means the law provides woefully inadequate safeguards to protect innocent people whose communications are caught up in the government's dragnet surveillance program.

  I don't know Chris Hedges, but I'm genuinely curious about whether he has actually read the law. I tend to doubt he has.

Assessing Surveillance Laws in An Era of Sunset Provisions: In my blog post last week on the new FISA Amendments, and a follow-up on Friday, some commenters expressed strong disagreement — and in some cases, downright contempt — at my view that the most natural baseline for assessing the latest FISA Amendments was last year's FISA law, the Protect America Act. Our disagreement raises a conceptually interesting question: How should we characterize the direction of new surveillance laws in an era when so many surveillance laws are being subject to sunset provisions? And applying that to the specific case here, is the Protect America Act the right baseline for the new FISA Amendments?

  I think the question is tremendously important. Statutory laws require a feedback loop: The public needs to know if their policy preferences are being enacted into law. But the details of surveillance law are a mystery to 99.99% of the population. The laws are arcane and technical, which means that the only way most people will get a sense of the direction of the law is second-hand. In my view, this puts intense pressure on those of us who want to write on these issues in a public forum to get it right. The democratic process only works correctly if we describe the law accurately. If our writings don't accurately describe what is happening, over time the law will no longer match public preferences in the way that they should in a democratic system.

  Reporting on the direction of the law is particularly tricky when Congress uses sunset provisions. A sunset provision makes the new law temporary: After a period of time, the new provision elapses and we revert to the old law (pending the likely passage of some new legislation). Sunsets let Congress experiment with different rules and see how they work out; near the end of the sunset period, Congress can have hearings and then decide whether to stick with the old law or try something new.

  Congress's heavy reliance on sunset provisions in surveillance law is one of the most interesting developments in the surveillance law of the post 9/11 era. As far as I know, the Patriot Act's sunset provisions were the first to use this: About half of the surveillance law changes in the original Patriot Act of 2001 sunsetted at the end of 2005. The Protect America Act of 2007 picked up the idea, sunsetting after 6 months but allowing orders granted under it to be valid for a year after they were issued. The new FISA Amendments also use sunsets: the new law expires at the end of 2012.

  So what baseline should we use when reporting on these issues? Here's my best sense: The most accurate and principled way to report on changes to surveillance laws in an era of sunset provisions will usually be to compare each new provision to the prior provision Congress negotiated. With an important exception, we should ordinarily compare new rules to sunsetting or recently sunset old rules.

  I think this is the case for three reasons. First, my sense is that this view matches the understanding of the institutional players in Congress and the Executive branch. Congress has pushed the use of sunsets to ensure that the baseline negotiated today can be renegotiated tomorrow; as the old law sunsets, the new law becomes the baseline for where the new law will go. The understanding of the parties is that the sunsetting law will be the future baseline.

  For example, the sunsetting Patriot Act provisions became the standard for how the law would change when Congress negotiated the next step at the end of 2005. Congress had hearings on whether or how to renew or amend pretty much every single sunsetting provision, no matter how minor. Similarly, my understanding is that the Protect America Act became the baseline for the negotiation of the new FISA Amendments. Given that this is the expectation of the institutional players when they insist on (or fight against) sunset provisions, I think it makes sense to track that understanding.

  Second, sunset provisions have become sufficiently common in surveillance law that any other baseline becomes rather arbitrary. As I see it, sunset provisions are here to stay: They seem to have become the new norm in surveillance law. If I'm right about that, my concern is that looking back to the pre-sunset law as the standard mostly just looks back to the era before sunsets were common rather than to any objectively "neutral" standard. In the case of surveillance of individuals overseas, for example, Congress's realization of the new technology allowing surveillance from inside the U.S. of individuals abroad led first to the Protect America Act for between 6 and 18 months (depending on how you look at it), then the new law for the next 52 months or so, and then we'll have something else new when the 2008 law expires in 2012. We may keep going on sunset provisions after that, too: we'll keep renegotiating every few years off into the future.