October 1, 2022

Progressives Hold Up FISA Modifications?

Earlier today the Huffington Post reported that the Democratic leadership in the House postponed announcing a new set of proposed changes to the Foreign Intelligence Surveillance Act after progressive lawmakers promised to fight legislation that omitted their “principles on wiretapping that preserve the ‘rule of law.'”

Steny Hoyer, the House Majority Leader, had planned to announce the bill at 1:30 PM today.

A spokesperson from his office told the Huffington Post that the House Intelligence Committee had decided to postpone completion of the legislation, though it’s not clear that the announcement from the Progressive Caucus influenced their decision.

The progressive’s principals are reportedly these that follow. My comments are below each in italics.

1. It should be the policy of the United States that the objective of any authorized program of foreign intelligence surveillance must be to ensure that American citizens and persons in America are secure in their persons, papers, and effects, but makes terrorists throughout the world feel insecure.

Yes, this is an appropriate and admirable principle. By definition a foreign intelligence act should target foreigners; more specifically it should be directed toward those who conspire to harm Americans and American interests.

Should the U.S. government wish to enact an intelligence program targeting American citizens it should do so in the form of a new law, perhaps one titled the Domestic Intelligence Surveillance Act, if such truthfulness in legislation is allowed in Congress these days.

2. The best way to achieve these twin goals is to follow the rule of law. And the exclusive law to follow with respect to authorizing foreign surveillance gathering on U.S. soil is the Foreign Intelligence Surveillance Act (FISA). As initially enacted by Congress, the exclusivity of FISA was unambiguous. Legislation must reiterate current law that FISA is the exclusive means to authorize foreign surveillance gathering on U.S. soil.

Also a true and admirable statement, for the most part. Certainly the government should follow the rule of law regarding warrants, wiretaps, and other intelligence gathering mechanisms.

Disclaimer: This is not a legal opinion but one of principle.

It’s worth noting that no law is unambiguous and FISA is no exception to that rule. Glamorizing its previous incarnations is no way to debate the current one which must stand or fail on its own merits. But I do think that it’s important to have a single definition of what is legal; the last thing the legal system needs is a series of contradictory and overlapping set of laws governing foreign intelligence gathering.

3. The Foreign Intelligence Surveillance Act (FISA) should be modernized to accommodate new technologies and to make clear that foreign to foreign communications are not subject to the FISA, even though modern technology enables that communication to be routed through the United States.

Yes, FISA should be modernized to address the specific needs of current and future technologies. All American laws relating to telecommunications should be updated in this manner.

However, foreign communications that are routed through the U.S. should not automatically be exempted from the purview of FISA. Exemptions could perhaps be negotiated on a nation-by-nation basis but a blanket rule is too limiting.

4. The Foreign Intelligence Surveillance Court (FISC) is indispensable and must play a meaningful role in ensuring compliance with the law. This oversight should include, where possible, regular judicial approval and review of surveillance, of whose communications will be collected, of how it will be gathered, and of how content and other data in communications to and from the United States will be handled.

I agree that the nation’s intelligence gathering organizations, as honorable as they may be, should be subject to the control of elected officials. FISC members are appointed, which is not quite the same thing. But the court is better than no oversight at all.

5. Congress must have regular access to information about how many U.S. communications are being collected and the authority to require court orders when it becomes clear that a certain program or surveillance of a target is scooping up communications of U.S. persons.

As above, the FISC court should be accountable to elected officials.

The term “U.S. persons” is vague – too vague to support as-is; further clarification is needed. While discriminatory it seems prudent to me to apply different standards to citizens and non-citizens vis-a-vis surveillance and what is permitted.

6. Once the government has reason to believe that a specific account, person or facility will have contact with someone in the United States, the government should be required to return to the FISC to obtain a court order for continued surveillance. Reliance on the FISC will help ensure the privacy of U.S. persons’ communications.

Once again the term U.S. person is too generic and should be specifically defined in the law.

In principle I agree that the FISC should be consulted before surveillance can be performed against a U.S. citizen. However, there remains a question as the what standard the FISC will apply before granting a warrant for continued surveillance. Probable cause? Suspicion?

7. Congress should not grant amnesty to any telecommunications company or to any other entity or individual for helping the NSA spy illegally on innocent Americans. The availability of amnesty will have the unintended consequence of encouraging telecommunications companies to comply with, rather than contest, illegal requests to spy on Americans.

In my opinion the telco companies should not be penalized for complying with the government. Given the regulated nature of their business it is inevitable that they will cooperate, one way or the other. Why penalize them for succumbing to the inevitable?

It is not the job of business, nor is it possible for them, to regulate the government. That responsibility lies with us, the people, and our elected officials.

8. Authorization to conduct foreign surveillance gathering on U.S. soil must never be made permanent. The threats to America’s security and the liberties of its people will change over time and require constant vigilance by the people’s representatives in Congress.

Absolutely. As I’ve said here before, there is no justification for making permanent any domestic surveillance that is justified because of a state of war. Wars end and this state is necessarily temporary. The reduction in privacy (and thus liberty) caused by temporary measures must be considered to be the exception, not the norm. As such, continued affirmation of the reduction should be required for it to continue.

I don’t believe that all of the progressive’s demands are good ones – far from it. But the majority of the points they demand in their manifesto are at least reasonable and deserve to be debated in the full view of the public eye, blind as that may be.

marc

Marc is a software developer, writer, and part-time political know-it-all who currently resides in Texas in the good ol' U.S.A.

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