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.
First, the law clarifies that the reverse-targeting that Marty Lederman was very worried about last year under the Protect America Act is forbidden: the government “may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States.” 702(b)(2). Second, the law requires the executive to adopt minimization procedures that have to comply with the traditional FISA minimization rules. 702(e).
Third, and perhaps most importantly, it looks to me that the statutory review by the FISC is now de novo rather than under a clearly erroneous standard: the court assesses de novo whether the protocols are reasonably designed to be limited to those outside the U.S. and that the minimization procedures satisfy the statutory standards. Sec. 702(i)(2)-(3). Fourth, the FISA court does an independent constitutional analysis: the Court can only sign the order if it finds that the surveillance plan is “consistent with the . . . fourth Amendment to the Constitution of the United States.” 702(i)(3)(A).
Fifth, the new law brings under FISA for the first time the surveillance of U.S. citizens abroad. In the past, this was left to executive order: The government was trusted to comply with the Fourth Amendment and only monitor U.S. citizens abroad in ways that satisfied the Fourth Amendment (whatever that meant, as the rules are rather vague). The new law imposes a statutory warrant requirement for surveillance of U.S. persons abroad: the government must get a FISA Court order based on probable cause to believe the person is an agent of a foreign power located outside the United States. Sec. 704. The law also requires various types of Congressional oversight. See, e.g. Sec. 707.
Based on my quick look at the news, it seems like the MSM isn’t really reporting on this stuff. And when they cover it they’re describing the changes as a dramatic expansion of government power, not an addition of restrictions. Why the apparent difference between the media coverage of the new surveillance rules and what seems to be in the law?
I think there are two major reasons. The main reason is that very few people actually care about these sorts of detailed surveillance rules. What the press cares about is the question of retroactive immunity for the lawsuits challenging the Bush Administration’s TSP program that the Times disclosed in 2005. That issue has taken on major symbolic resonance, and the bill also has a provision that for all intents and purposes ends up providing immunity in those lawsuits. To a lot of people, that resolution of the lawsuits has tremendous symbolic importance: To those hoping that the lawsuits would “punish” the Bush Administration for its very likely unlawful monitoring, getting rid of the lawsuits symbolically lets the Administration “get away with” the illegal monitoring. That makes this legislation a win for the Bush Administration. And if you’re going to report a Bush Administration win on the big question, who really cares about (and who has the patience to figure out and explain) about the details of those new surveillance rules? So, somewhat weirdly, the story becomes that the law triggered a major expansion of surveillance powers quite apart from what the new rules regulating surveillance actually will be.
Second, the press seems to be taking as the baseline the pre-Protect America Act state of the law. The Protect America Act of 2007 had a sunset of 6 months: The idea was that Congress would have to renegotiate after the law elapsed. I tend to think that the most accurate way to frame looking at the new law is by reference to the Protect America Act negotiated just last year. Compared to the Protect America Act, the new law looks clearly preferable from a civil libertarian perspective. But the press coverage seems to be comparing the new law to the law before the Protect America Act, when technological change had created an unexpected limit on the scope of government power that pretty much everyone agreed shouldn’t be there.
Anyway, that’s my sense based on a first read of the new legislation; it’s accurate to my knowledge, but I am not yet an expert in what the law contains. If you think I’m missing something about how the law works, please let me know: I would be delighted to be corrected, the sooner the better. (Oh, and no need to make it seem like a “gotcha” if I missed something; I’m just trying to be accurate, not to score points, so I’m happy if you can help me be more accurare.)