FISA: Senate Decides Al Qaeda Bigger Threat than FBI

The United States Senate updated the Foreign Intelligence Surveillance Act (FISA) today. Good for 69 of them.

News Alert: Vietnam War Over! Information Age Here!

This is a long-overdue update of a law that got started in the Vietnam / Watergate era. That was before cell phones, the internet, and email. Congress has been a long time, getting around to passing an update: and then, popped out a six-month extension.

I see that there are, as usual, the 'spy on American citizens' people, protecting our privacy, or something of that sort. I'm glad to see that the new FISA bill has due process spelled out, but some of the anti-FISA talk has done anything but make me feel more secure.

Despite the mildly hysterical talk about "warrantless wiretaps," I think that the big issue here is how the overhauled FISA "lets phone companies off the hook for wiretapping." There are about 40 lawsuits against telecommunications companies that are most likely moot now.

The ability to sue companies for cooperating with American law enforcement was a very useful tool. I can understand why people who are more afraid of the FBI than Al Qaeda are so upset.

This Isn't Your Father's FISA

The original FISA, passed in 1978, said that a separate warrant was needed for each individual targeted from inside America. That practically made sense in the late seventies.

Quite a bit has changed in the last thirty years. "Wiretapping" doesn't involve wires anymore, for the most part, there are a whole lot more individuals out there, and a very great deal of communications between foreign parties goes through the United States.

Even the original FISA, acknowledging the needs of law enforcement, allowed a three-day grace period before a warrant was required. The new FISA extends that to a week.

There are exceptions, but it's still hardly the "warrantless wiretaps" that we're supposed to be afraid of. As the Associated Press put it: "But the bill also would allow the government to obtain broad, yearlong intercept orders from the FISA court that target foreign groups and people, raising the prospect that communications with innocent Americans would be swept up. The court would approve how the government chooses the targets, and how the intercepted American communications are to be protected."

Common Sense from the Senate, 69-28

Quoting from a post I wrote last year, about FISA, Congress, and efforts to protect American citizens from snoopy law enforcement agencies:

"Let's give this the good-sense test.

"Let's say you're in an office building. Outside you see a cop on the corner, and a truck racing toward your building with a "Death to America" banner on top.

"Who concerns you more: the cop, or the terrorist?

"Silly? Of course. This was a purely hypothetical situation, presented as a sort of thought-experiment. Real terrorists don't label themselves that way.

"Same question, phrased a little differently: Who is scarier? The cop, or the terrorist? Or the members of congress who apparently think the cop is?"
("Protection, and Common Sense, Needed (August 6, 2007))

• "FISA, the Patriot Act, and the Protect America Act: Who's Protecting Whom from Whom?
  (March 13, 2008)
• "PAA is Poo, and Kaput: Or, Who Should Congress be Protecting Americans From?
  (February 23, 2008)
• "Protection, and Common Sense, Needed
  (August 6, 2007)
• "Congress Must Decide Who to Protect Americans From
  (August 5, 2007)

FISA in the news:

• "Senate passes controversial foreign intelligence law"
  CNN (July 9, 2008)
• "Congress votes to immunize lawbreaking telecoms, legalize warrantless eavesdropping"
  Salon (July 9, 2008)
• "Senate Fails to Strip Telco Immunity from Spy Bill"
  PC Magazine (July 9, 2008)
• "Senate to pass bill overhauling eavesdropping rules"
  Associated Press (July 9, 2008)
• "US Senate passes eavesdropping rules that lets phone companies off the hook for wiretapping"
  International Herald Tribune (July 9, 2008)