Dear Senator,

On behalf of the American Civil Liberties Union (ACLU), America’s oldest and largest civil liberties organization, its 53 affiliates, and over half a million members, we write to ask that you vote “yes” on a number of critical amendments to the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2007.  We also ask that you vote “no” on final passage to any spying bill that authorizes warrantless surveillance on American soil or grants retroactive immunity to companies who broke the law by facilitating illegal spying.

To be clear, if the Protect America Act (PAA) sunsets as a result of a ‘no’ vote on final passage, current foreign surveillance orders under PAA could be in operation for up to an additional year, thereby allowing the intelligence community to continue programs already underway.  Even Senator Rockefeller, Chairman of the Senate Intelligence Committee, has noted that a sunset of PAA does not mean that the activities already authorized by the administration necessarily end. 

This past August Congress rushed through the Protect America Act, which permits massive untargeted spying on Americans  -- this week you will have the opportunity to undo that grievous mistake by fixing that legislation or letting it sunset completely.  Regrettably, in its current form S. 2248, the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2007, essentially leaves the Protect America Act intact and permits the government to collect all communications coming into and out of the United States without any prior court review, without any suspicion of wrongdoing, and without any limits on how such information can be used once collected.  Further, it seeks the dismissal of all cases aiming to hold the telecommunication companies accountable for their illegal wiretapping activities. 

Without substantial amendment, this bill would allow the government to spy on individual Americans without constitutionally mandated court oversight and strips those individuals of the ability to vindicate their rights in court regarding wiretapping abuses of the past.  We ask that you vote in favor of the following amendments when they are offered this week:

• S.A. 3913 Feingold-Menendez-Dodd Significant Purpose Test. This amendment would require the government to return to court and obtain an individualized court order when, in the course of tapping a target abroad, a significant purpose of the tap is to acquire the communications of a person in the U.S.  It makes important strides towards preventing the government from using the foreign end of the communication as a pretext for listening to Americans. 

• S.A. 3912 Feingold-Dodd Ban on Bulk Collection. As currently written, S. 2248 allows the government to collect all communications coming into and out of the U.S. without targeting its efforts on actual suspects or the facilities they may be using.  This not only is likely to violate the Fourth Amendment’s requirement that the government state the things to be seized with particularity, but on a practical level serves to drown the truly relevant communications of terrorists in a sea of innocent phone calls and emails of law abiding Americans. S.A 3912 would simply require that the government actually target its spying powers on targeted individuals instead of conducting bulk collection.

• S.A. 3915 Feingold-Dodd Court Authority to Amend Warrantless Surveillance Programs and Limit Use of Illegally Collected Information.  A critical flaw of S.2248 is that there is simply no prior court review of any kind of the government’s expanded surveillance.  This is only exacerbated by the fact that the little court review there is – which is limited to review of guidelines after surveillance has begun – appears to not be accompanied by the explicit authority to modify surveillance procedures already under way.  This amendment allows the FISA court to amend surveillance programs if it finds them to be contrary to the requirements of this bill or the Fourth Amendment, and to limit the use of illegally collected information.

• Feingold-Webb-Tester Amendment to Protect US Communications.  S. 2248 does not distinguish between communications that are truly foreign-to-foreign, i.e. involving only communicants who are overseas, and those that have a person on US soil as a party.   This amendment requires extra protections for the latter.  In particular, this amendment would make clear that the government may only acquire a communication when it knows a US person is a party to that communication if it has a court order, if the communication is with a terrorist or is about terrorism, or in the case of an emergency.  If the communication has already been acquired, and the government later determines that one party is in the US, it can only use and disseminate that communication if it meets one of the three conditions above, or contains evidence of a crime. 

• S.A. 3907 Dodd-Feingold-Leahy, et. al, Stripping Telecom Immunity.  S. 2248 would allow the Attorney General complete discretion to singlehandedly dismiss all pending cases seeking to hold the telecommunication companies accountable for wiretapping Americans without a warrant.  This not only deprives Americans of their day in court and the opportunity to vindicate their statutory and constitutional rights, but undercuts the very accountability structures in our privacy statutes that deter companies that have access to our most intimate information from colluding with the government to break the law.  This amendment strips the blanket immunity provision and allows the courts to continue their constitutionally defined role. 

• S.A. 3927 Specter-Whitehouse and S.A. 3919 Feinstein-Nelson Immunity Amendments. Specter- Whitehouse would substitute the government as defendants in pending cases, and the Feinstein-Nelson amendment would transfer pending cases to the secret FISA court.  Both greatly proscribe the role of the courts and prevent them from determining whether FISA or the Fourth Amendment were violated, and instead allow dismissal of the cases if the telecoms had a “good faith” belief their actions were legal, for example. Because these amendments greatly limit the ability for Americans to assert their rights in court, we recommend a yes vote only if the Dodd-Feingold-Leahy amendment stripping immunity fails. 

In addition, there is one amendment we recommend a “no” vote on because it expands the definition of those who are subject to FISA surveillance in potentially unintended ways:

• S.A. 3938 Bond Expansion of “Agent of a Foreign Power” Definition.  This amendment would add a new category to the definition of non-US person agents of a foreign power. “Agents of a foreign power” are those people who have some connection to international organizations or terrorism, making them subject to FISA surveillance on a standard that is lower than would be required by a standard criminal warrant.  The new category would include someone who “engages in the international proliferation of weapons of mass destruction, or activities in preparation therefore.”  It is possible that this vague definition would sweep in academics or companies who may have valid reasons to be handling dangerous materials such as conducting research or developing weapons for our own government.   It is also possible a person could be considered to be engaged in the development of weapons of mass destruction simply for possessing the component parts of a destructive device, or the precursor chemicals of a chemical weapon.  These “precursors” could include gunpowder or simple household chemicals.  

The FISA Amendments Act of 2007 has severe constitutional failings. Although we recommend that the above amendments pass to increase protections for American communications, the final product would still, as a whole, insufficiently protect Americans’ Fourth Amendment right to be free from government intrusion. 

For these reasons, the ACLU ultimately recommends a no vote on final passage of any bill that extends the government’s warrantless wiretapping authority or grants retroactive immunity to companies who participated in warrantless surveillance of Americans.  If the Protect America Act sunsets, all current programmatic orders could operate for an additional year, and new surveillance would simply revert to the FISA that has been updated dozens of times and served our intelligence community for thirty years.  A sunset of these unprecedented and expansive authorities is far preferable to advancing a bill that encroaches on Americans’ privacy. 

Sincerely,

Caroline Fredrickson
Director, Washington Legislative Office

Michelle Richardson
Legislative Consultant