House approves another five years of warrantless wiretapping of Americans.

The House has voted to reauthorize the FISA Amendments Act (301-118). The Act authorizes programs of surveillance intended to target foreign agents, but allows collection of private communications of United States citizens without individualized suspicion. In May 2012, EPIC Executive Director Marc Rotenberg testified before the House Judiciary Committee on the legislation and recommended new oversight procedures. The Senate has yet to consider the measure. Senator Ron Wyden (D-OR) and others have expressed concern about renewal of the Act. For more information, see EPIC: Foreign Intelligence Surveillance Act and EPIC: Clapper v. Amnesty International USA.   

The House reauthorized for five years broad electronic eavesdropping powers that legalized and expanded the George W. Bush administration’s warrantless wiretapping program.

The FISA Amendments Act, (.pdf) which is expiring at year’s end, allows the government to electronically eavesdrop on Americans’ phone calls and e-mails without a probable-cause warrant so long as one of the parties to the communication is believed outside the United States. The communications may be intercepted “to acquire foreign intelligence information.”

The government has also interpreted the law to mean that as long as the real target is al-Qaida, the government can wiretap purely domestic e-mails and phone calls without getting a warrant from a judge. That’s according to David Kris, a former top anti-terrorism attorney at the Justice Department.

The measure is sponsored by Rep. Lamar Smith (R-Texas) and the Obama administration has called its passage a top intelligence priority. (.pdf) The bill generally requires the secret Foreign Intelligence Surveillance Act Court to rubber-stamp terror-related electronic surveillance requests that ensnare Americans’ communications.

The government does not have to identify the target or facility to be monitored. It can begin surveillance a week before making the request, and the surveillance can continue during the appeals process if, in a rare case, the secret FISA court rejects the surveillance application. The court’s rulings are not public.
   
 Not all Republicans supported the legislation. One opponent was Rep. Tom McClintonck (R-CA).

"We're told, don't worry, the law requires that any irrelevant information collected in this manner be disregarded," McClintock said. "But here's the problem: the enforcement of this provision is itself shrouded in secrecy, making the potential for abuse substantial and any remedy unlikely."

"Yet again, the House has rubberstamped a law so broad and vague that, despite its passage four years ago, we still have little idea how the government is using it,” said Michelle Richardson, ACLU legislative counsel. "It is at the very heart of the Fourth Amendment that Americans and their communications are fiercely protected from government intrusion."

The return of general warrants.

The FAA was originally enacted in the heat of the 2008 campaign season. During the primary, then-Sen. Barack Obama (D-IL) declared his opposition to a provision providing retroactive immunity to telecommunications companies that illegally participated in surveillance programs, vowing to filibuster the legislation if it came to the Senate floor. But once he secured the Democratic nomination for president, he switched sides and voted in favor of the bill.

The immunity provision received the most attention in 2008, but as we reported at the time, it wasn't the most troubling part of the bill:

The legislation establishes a new procedure whereby the Attorney General and the Director of National Intelligence can sign off on "authorizations" of surveillance programs "targeting people reasonably believed to be located outside the United States." The government is required to submit a "certification" to the FISA court describing the surveillance plan and the "minimization" procedures that will be used to avoid intercepting too many communications of American citizens. However, the government is not required to "identify the specific facilities, places, premises, or property" at which the eavesdropping will occur. The specific eavesdropping targets will be at the NSA's discretion and unreviewed by a judge.

Crucially, there appears to be no limit to the breadth of "authorizations" the government might issue. So, for example, a single "authorization" might cover the interception of all international traffic passing through AT&T's San Francisco facility, with complex software algorithms deciding which communications are retained for the examination of human analysts. Without a list of specific targets, and without a background in computer programming, a judge is unlikely to be able to evaluate whether such software is properly "targeted" at foreigners.

In a recent blog post, Julian Sanchez, a Cato Institute analyst and former Ars contributor, noted that this kind of broad surveillance power bears an eerie similarity to the "general warrants" that inspired the founding fathers to adopt the Fourth Amendment in the first place. During the colonial era, agents of the crown could obtain legal orders allowing them to enter any residence in search of criminals. These powers were sometimes used for fishing expeditions designed to smoke out "seditious" writers who criticized the government anonymously. To prevent this kind of abuse, the authors of the Fourth Amendment required that search warrants specifically describe "the place to be searched, and the persons or things to be seized."

Today, Sanchez writes, that logic is being stood on its head:

Modern defenders of the FISA Amendments Act argue that sweeping NSA surveillance of our digital "papers" is constitutionally unproblematic precisely because it does not "target" the Americans whose papers are searched: The groups or individuals who are the "targets" of programmatic NSA communications interception must be foreign. One wonders what the Founders would have made of this strange "defense": When the king’s messengers burst into printer Dryden Leach’s home in the dead of night to ransack his personal papers—acting on a secondhand report that John Wilkes had recently been seen in his shop—the fact that Wilkes and not Leach was the ultimate "target" of the search hardly excused it in the eyes of liberty-minded observers on either side of the Atlantic. What was so egregious was precisely that the messengers enjoyed "a discretionary power… to search wherever their suspicions may chance to fall," and not merely a power limited to the person and property of their specific "target."

http://www.wired.com/threatlevel/2012/09/house-approves-spy-bill/
http://epic.org/2012/09/house-renews-foreign-intellige.html
http://arstechnica.com/tech-policy/2012/09/house-approves-another-five-years-of-warrantless-wiretapping/