[govinfo] URGENT: sign-on letter on FISA legislation

  • From: "Patrice McDermott" <pmcdermott@xxxxxxxxxxxxxxxxxxxxx>
  • To: "opengovpartners@xxxxxxxxxxxxx" <opengovpartners@xxxxxxxxxxxxx>, "FOI-L@xxxxxxxxxxxxxxxx" <FOI-L@xxxxxxxxxxxxxxxx>, "govinfo@xxxxxxxxxxxxx" <govinfo@xxxxxxxxxxxxx> pmcdermott@xxxxxxxxxxxxxxxxxxxxx
  • Date: Fri, 31 Aug 2007 16:13:30 -0400

ACLU has drafted a letter to Pelosi/Reid outlining basic principles that must 
be inserted back into FISA to meaningfully fix the new wiretapping program and 
they invite your organization to sign on.  The letter is below and attached - 
and addresses important issues of data collection, retention and use by the 
government, in addition to concerns of privacy.
Send your sign-ons to Tim Sparapani (tsparapani@xxxxxxxxxx; 202-715-0839 by 
noon EDT Tuesday, 4 September.
Thanks. Have a good Labor Day weekend.
Patrice McDermott, Director
202.332.OPEN (6736)
Honorable Nancy Pelosi
United States House of Representatives
Washington, D.C.  20515-0508
Senate Majority Leader Harry Reid
United States Senate
Washington, D.C. 20510-2803

September 4, 2007

Dear Speaker Pelosi and Leader Reid,

            We are organizations that believe that our nation's surveillance 
laws can effectively target terrorists without jeopardizing the rights of 
innocent United States persons.   We are very concerned that the recently 
enacted Protect America Act of 2007 may be used to justify the warrantless 
interception of any international communications by U.S. persons without any 
restriction on the subsequent review and data mining of the metadata concerning 
those calls or the content of the communications themselves.

            We are encouraged by your requests to the Judiciary and 
Intelligence Committees to once again delve into the Foreign Intelligence 
Surveillance Act (FISA) and reinsert  much needed privacy protections that were 
lacking in the last iteration.  It stands to reason that just as the level of 
intrusion into U.S. persons' communications is dramatically increased, so too 
must be the protections for those communications.  To that end, we would like 
to share basic principles that must be respected to ensure that U.S. persons' 
electronic communications are protected from unwarranted government intrusion:

I.                    No amendments to FISA should be made permanent until 
Congress and the public receive answers about what surveillance activities have 
been conducted over the last six years and the legal basis for those programs.  
Further, information regarding how the authorities provided for in the Protect 
America Act are being interpreted and operationalized by the National Security 
Agency should be shared with Congress.  To facilitate Congress' legislative 
efforts, the NSA should be required to articulate with specificity the 
problematic aspects of the prior statutory scheme and whether the Protect 
America Act responds to those intelligence concerns.

I.                    Any further legislation must reiterate that FISA is the 
exclusive means of intelligence gathering on U.S. soil, and the legislation 
must include automatically triggered consequences for violating this 
exclusivity.  As initially enacted by Congress, the exclusivity of FISA was 
unambiguous. This new exercise in defining the lawful extent of surveillance 
authorities will be useless if the resulting legislation can be ignored.  We 
further recommend that any new legislation state explicitly that the 
Authorization for the Use of Military Force in Afghanistan and Iraq do not 
authorize any surveillance outside FISA.  Additionally, we recommend that the 
NSA be required to report to Congress repeatedly on its implementation of any 
new surveillance activities conducted pursuant to FISA.

II.                 Interceptions of U.S. persons' communications within the 
U.S. should continue to be included within, and, therefore, protected by the 
definition of "electronic surveillance."  The Protect America Act's seeming 
elimination of this protection should be repealed.

III.               Collection and isolation of the particular communications 
sought by the government should be conducted by the telecommunications industry 
itself - the government should not be given direct and unfettered access to 
telecommunications infrastructure.  We are concerned that the PAA appears to 
allow the government to "sit on the line" and scoop up all communications and 
sort through them later.  Instead, the government should receive only the 
information it is authorized to intercept by law.

IV.              The Foreign Intelligence Surveillance Court (FISC) must play a 
meaningful role in ensuring compliance with the law. First and foremost, 
electronic surveillance should be authorized by the FISC through the issuance 
of an individualized warrant based on probable cause.  This oversight should 
include, where possible, prior and, always, regular judicial approval and 
review of surveillance based on full disclosure about what information is to be 
sought, whose communications will be collected, how it will be gathered and how 
content and other data in communications to and from the United States will be 
handled.  The Court must also 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.

V.                 .Under any new amendment to FISA established in your 
legislation, when the government intercepts a communication to which a person 
in the U.S. is a party, there should be a presumption requiring the NSA to 
immediately destroy that communication unless the NSA documents that  it has 
reason to believe that the communication reflects an immediate threat to life 
or limb.  Additionally, where the government has probable cause to believe 
communications into or out of the United States involve the planning for an 
international terrorist attack or an imminent hostile action by a foreign 
power, the government may keep and utilize the communication intercepted if the 
NSA documents their basis for that reasonable belief and subsequently applies 
for a warrant for that communication within 72 hours of its acquisition.  The 
FISC may respond to such an application in one of three ways: (i) grant the 
order for the warrant to obtain retrospective and prospective approval to 
monitor communications with that U.S. person and permit the NSA to utilize the 
communication; (ii) reject the order and require destruction of the U.S. 
person's communications intercepted; or (iii) extend the period under which 
this emergency period of interception may occur but require the re-filing of a 
revised warrant application within 72 hours.  All public FISA legislation has 
been deficient in that it has lacked a presumption of destruction of the 
improperly intercepted communications of U.S. persons.  Without such a 
presumption, the Administration's secret "minimization" procedures will be all 
that govern U.S. communications.  Congress has the authority - and the 
responsibility - to explicitly define how these communications are treated, and 
should no longer defer to the Executive branch's unknown policies.  If the 
programs are truly directed at people overseas, this should be 
noncontroversial.  In the situation where the government obtains a 
communication with a U.S. person that suggests an attack by international 
terrorists is being planned or that a foreign power may take imminent hostile 
against the U.S., the new statutory regime would give flexibility to the NSA to 
protect the national security of the U.S., but not negatively impact the rights 
of U.S. persons without court supervision.

VI.              Once the government has reason to believe that there is a 
substantial likelihood 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 of that 
account, person or facility.  Reliance on the FISC will help ensure the privacy 
of U.S. persons' communications.

We are happy to discuss more precise language to effectuate these changes.   We 
understand that the Administration's original intent was to allow easier 
collection of communications of people abroad that are incidentally routed 
through the United States.  We look forward to working with you and the 
Committees to rein in this limitless program and devise one that actually gives 
the government access to these communications without jeopardizing the rights 
of people in the United States.


Cc:       Chairman Reyes, Ranking Member Hoekstra, Chairman Conyers, Ranking 
Member Smith  

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