Where We Stand: FISA

On July 10, President Bush signed the FISA Amendments Act of 2008 (FAA). Until Congress enacted the FAA, FISA generally prohibited the government from conducting electronic surveillance without first obtaining an individualized order from the FISA court. The new law gives the court established by FISA an extremely limited role in overseeing the government’s surveillance activities.

This editorial was posted following the bill's passage in the House.

The ACLU of Colorado condemned the vote in the House on changes to the Foreign Intelligence Surveillance Act, which gives the telecommunications companies retroactive immunity and expands the National Security Agency warrantless surveillance.

HR 6304 likely means that the Colorado Public Utilities Commission will never address the ACLU's request for an investigation into possible misconduct by telecommunication companies in Colorado. Only Congresswoman Diana DeGette voted against the bill. The other six members of the Colorado delegation voted yes. Unfortunately the House voted 293 to 129 to approve the bill.

“With a note from the Attorney General, the telephone companies get automatic immunity, meaning they and the Bush Administration will no longer be held accountable for breaking the law,” said Cathryn Hazouri , Executive Director of the American Civil Liberties Union of Colorado . “The worst part is that the House voted today to ensure that warrantless surveillance isn't just part of our past - it's in our future too.” H.R. 6304 states that all lawsuits in federal and state court shall be dismissed if the Attorney General certifies that the surveillance occurred “in connection with intelligence activity” and was authorized by the President. Immunity is not the only problem with H.R. 6304.

The bill permits the government to conduct mass, untargeted surveillance of all communications coming into and out of the United States, without any individualized review, and without any finding of wrongdoing. The Foreign Intelligence Surveillance Court (FISA Court) only reviews general procedures for targeting and minimizing the use of information that is collected. The court may not know who, what or where the wiretaps will happen. H.R. 6304 further trivializes court review by explicitly permitting the government to continue surveillance programs during the appeals process even if the application is denied by the court.

The ACLU of Colorado filed a request on May 24, 2006, for the PUC to investigate whether local phone companies have shared customers' phone records with the NSA. In addition, the ACLU sent a letter to Colorado Attorney General John Suthers asking him to investigate the phone companies' possible violation of the Colorado Consumer Protection Act. The PUC refused to investigate, citing the Department of Justice's motion to dismiss a similar case in New Jersey on "state secrets" grounds. after the ACLU delivered 1,800 petitions to the PUC in August 2006, the commission said itwould "defer" an investigation until the issue is decided in the courts.

The Bush Administration requested that Congress move before any of the lawsuits are decided and Congress did just that this morning. “Today the House gave the Bush Administration and the telephone companies a sweetheart deal that makes a mockery of our Fourth Amendment right to privacy,” said Hazouri “Now Coloradans may never know if our privacy was violated by the Bush Administration.”

Learn more about why the FAA is unconstitutional.

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