The New York City Bar Association has joined a growing list of organizations and individuals urging Congress to include strong privacy and civil liberty protections in the legislation to amend the Foreign Intelligence Surveillance Act, which governs some forms of electronic surveillance. House and Senate negotiators have been trying to reconcile the two chambers’ versions of the bill, which concerns the legality of the NSA’s warrantless wiretapping program. Currently, the lawmakers are considering a compromise proposal by Sen. Kit Bond (R-MO), which has been roundly criticized by privacy, security, and civil liberty groups.
In a letter (pdf) to House of Representative leaders, the New York City Bar detailed numerous “inadequate privacy protections” in the proposal by Sen. Bond:
1. First, the compromise proposal, like the Senate bill, gives the Attorney General (“AG”) and the Director of National Intelligence (“DNI”) the authority to conduct warrantless surveillance on their own certification, without advance judicial review or approval. […]
2. The compromise bill does not provide for adequate judicial review by the FISA Court, and indeed deprives the FISA Court of any meaningful role in the Administration’s electronic surveillance activities. […]
3. The bill excludes from FISA’s definition of “electronic surveillance” all of the communications intercepted under the authority granted by the Act. As a result, the bill would exclude such communications from all of the protections of the FISA statute, including its provisions for civil and criminal liability for violations of FISA. There is no reason for this overbroad exclusion of such communications from the protections of FISA.
4. The bill would authorize the AG and DNI to issue a directive to a communications provider requiring the provider to comply, but does not require a court order; instead, it puts the burden on the communications provider to challenge the directive if it wants to obtain a binding judicial ruling as to its obligations. […]
5. The bill in effect retroactively grants immunity to telecommunications companies that cooperated with the Administration’s unauthorized – and probably unlawful – warrantless surveillance program. […]
6. The sunset provision of the bill – until December 31, 2013, or approximately five and one-half years – is far too long, and allows far too much time to elapse before requiring Congress to reevaluate whether there is a continuing need for the extraordinary authority granted by the bill.
Earlier this week, Senators Feingold and Dodd urged Senate leaders and House Speaker Nancy Pelosi not to authorize immunity for telecommunications companies in the FISA amendments bill. Also this week, Privacy Lives joined 27 organizations in urging Congress to reject Sen. Bond’s proposed legislation, which “unreasonably and unnecessarily authorizes broad surveillance of Americans’ international communications without meaningful Fourth Amendment protections.”