The Foreign Intelligence Surveillance Act: A Sketch of Selected Issues

The Foreign Intelligence Surveillance Act:
A Sketch of Selected Issues
July 7, 2008
Elizabeth B. Bazan
Legislative Attorney
American Law Division



The Foreign Intelligence Surveillance Act:
A Sketch of Selected Issues
Summary
The current legislative and oversight activity with respect to electronic
surveillance under the Foreign Intelligence Surveillance Act (FISA) has drawn
national attention to several overarching issues. This report briefly outlines three
such issues and touches upon some of the perspectives reflected in the ongoing
debate. These issues include the inherent and often dynamic tension between national
security and civil liberties, particularly rights of privacy and free speech; the need for
the intelligence community to be able to efficiently and effectively collect foreign
intelligence information from the communications of foreign persons located outside
the United States in a changing, fast-paced, and technologically sophisticated
international environment or from United States persons abroad, and the differing
approaches suggested to meet this need; and limitations of liability for those
electronic communication service providers who furnish aid to the federal
government in its foreign intelligence collection. Two constitutional provisions, in
particular, are implicated in this debate — the Fourth and First Amendments. This
report briefly examines these issues and sets them in context.
The 110th Congress has been very active in developing and considering
measures to amend FISA to address these issues. On August 5, 2007, the Protect
America Act, P.L. 110-55, was enacted into law. It expired on February 16, 2008,
after passage of a fifteen-day extension to its original sunset date. See P.L. 110-182.
On November 15, 2007, the House of Representatives passed H.R. 3773, the
RESTORE Act of 2007. On February 12, 2008, the Senate passed S. 2248, as
amended, then struck all but the enacting clause of H.R. 3773, and inserted the text
of S. 2248, as amended, in its stead. On March 14, 2008, the House passed an
amendment to the Senate amendment to H.R. 3773. After months of intensive
negotiations, on June 19, 2008, a compromise bill, H.R. 6304, was introduced in the
House. It was passed by the House the following day. On June 26, 2008, a cloture
motion on the measure was presented in the Senate. Further activity on H.R. 6304
is anticipated after the Senate returns from the July 4th recess. Each of these bills
differ somewhat in content and approach from one another.
This report consists of the text of CRS Report RL34279, The Foreign
Intelligence Surveillance Act: An Overview of Selected Issues, by Elizabeth B.
Bazan, without the accompanying footnotes. It will be updated as needed.



Contents
In troduction ......................................................1
Tension Between National Security and Civil Liberties....................2
Collection of Foreign Intelligence Information from Foreign Persons
and United States Persons Located Abroad..........................4
Legislative Response: Foreign Intelligence Surveillance
of Foreign Persons Abroad..................................6
Legislative Response: Foreign Intelligence Surveillance
of U.S. Persons Outside the United States.......................8
Limitations on Liability for Telecommunications Providers
Furnishing Aid to the Government................................9
Legislative Response..........................................11



The Foreign Intelligence Surveillance Act:
A Sketch of Selected Issues
Introduction
The Foreign Intelligence Surveillance Act of 1978, P.L. 95-511, 92 Stat. 1783
(October 25, 1978), 50 U.S.C. §§ 1801 et seq. (hereinafter FISA), was enacted in
response both to the Committee to Study Government Operations with Respect to
Intelligence Activities (otherwise known as the Church Committee) revelations
regarding past abuses of electronic surveillance for national security purposes and to
the somewhat uncertain state of the law on the subject. While FISA now provides
a statutory framework for gathering foreign intelligence information through the use
of electronic surveillance, physical searches, and pen registers or trap and trace
devices, and access to business records and other tangible things, the 1978 Act dealt
only with electronic surveillance. The provisions passed almost 30 years ago became
Title I of FISA. As originally enacted, the measure provided a statutory framework
for collection of foreign intelligence information through the use of electronic
surveillance of communications of foreign powers or agents of foreign powers, as
those terms were defined in the act. The act has been amended repeatedly in the
intervening years in an effort to address changing circumstances. Then, as now, the
Congress sought to strike a balance between national security interests and civil
liberties.
A number of FISA bills have received recent attention in the 110th Congress.
On August, 5, 2007, the Protect America Act, P.L. 110-55 was enacted into law.
This measure, in part, construed the term “electronic surveillance” under FISA not
to include surveillance directed at a person reasonably believed to be located outside
of the United States, and provided authority for warrantless acquisition of foreign
intelligence information concerning persons reasonably believed to be located outside
the United States where certain criteria were satisfied. As originally enacted, the
measure was to sunset on February 1, 2008. On January 29, 2008, both the House
and the Senate passed H.R. 5104, a 15-day extension to the sunset for the Protect
America Act, to allow further time to consider, pass, and go to conference on
proposed legislation to amend FISA, while ensuring that the intelligence community
would have the authority it needed in the intervening period. It was enacted into law
as P.L. 110-182.
The House of Representatives passed H.R. 3773, the Responsible Electronic
Surveillance That is Overseen, Reviewed, and Effective Act of 2007 or the
RESTORE Act of 2007 on November 15, 2007, while S. 2248 was reported out of
the Senate Select Committee on Intelligence on October 26, 2007, and an amendment
in the nature of a substitute to S. 2248, the Foreign Intelligence Surveillance
Amendments Act of 2007 or the FISA Amendments Act of 2007, was reported out



of the Senate Judiciary Committee on November 16, 2007. A modified version of
the Senate Judiciary Committee’s amendment in the nature of a substitute to S. 2248
was tabled.
The Senate passed S. 2248, the FISA Amendments Act of 2008, as amended,
on February 12, 2008. After striking all but the enacting clause of H.R. 3773 and
inserting the text of S. 2248 as amended, the Senate then passed H.R. 3773, the FISA
Amendments Act of 2008.
On March 14, 2008, the House passed an amendment to the Senate amendment
to H.R. 3773. After intensive negotiations, a compromise bill, H.R. 6304, was
introduced in the House on June 19, 2008. The measure passed the House the
following day. A cloture motion on the measure was presented in the Senate on June
26, 2008. Further activity on H.R. 6304 is anticipated after the Senate returns from
the July 4th recess.
The current legislative and oversight activity with respect to electronic
surveillance under FISA has drawn national attention to several overarching issues.
This report briefly outlines three such issues and touches upon some of the
perspectives reflected in the ongoing debate. These issues include the inherent and
often dynamic tension between national security and civil liberties, particularly rights
of privacy and free speech; the need identified by the Director of National
Intelligence (DNI), Admiral Mike McConnell, for the intelligence community to be
able to efficiently and effectively collect foreign intelligence information from the
communications of foreign persons located outside the United States in a changing,
fast-paced, and technologically sophisticated international environment, and the
differing approaches suggested to meet this need; and limitations of liability for those
electronic communication service providers who furnish aid to the federal
government in its foreign intelligence collection. This report briefly examines these
issues and sets them in context.
Tension Between National Security
and Civil Liberties
Two constitutional provisions, in particular, are implicated in this debate — the
Fourth and First Amendments. The Fourth Amendment to the U.S. Constitution
provides:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrant
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
The First Amendment to the U.S. Constitution provides:
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of



the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.
As the Fourth Amendment protects the people’s privacy rights, so the First
Amendment reflects a recognition of the value of free expression of ideas and lawful
political dissent to the preservation of a free society.
In introducing S. 1566, the bill that became the Foreign Intelligence
Surveillance Act of 1978, P.L. 95-511, Senator Edward Kennedy addressed the
challenge of striking an appropriate balance between the legitimate government need
to safeguard the nation against the intelligence activities of foreign agents and the
concomitant need to protect civil liberties, stating:
The complexity of the problem must not be underestimated. Electronic
surveillance can be a useful tool for the Government’s gathering of certain kinds
of information; yet, if abused, it can also constitute a particularly indiscriminate
and penetrating invasion of the privacy of our citizens. My objective over the
past six years has been to reach some kind of fair balance that will protect the
security of the United States without infringing on our citizens’ human liberties
and rights.
This sentiment was echoed in a hearing before the Senate Judiciary Committee
on S. 1566 when Attorney General Griffin Bell testified for the Carter Administration
in favor of the measure:
I believe this bill is remarkable not only in the way it has been developed,
but also in the fact that for the first time in our society the clandestine
intelligence activities of our government shall be subject to the regulation and
receive the positive authority of a public law for all to inspect. President Carter
stated it very well in announcing this bill when he said that “one of the most
difficult tasks in a free society like our own is the correlation between adequate
intelligence to guarantee our nation’s security on the one hand, and the
preservation of basic human rights on the other.” It is a very delicate balance to
strike, but one which is necessary in our society, and a balance which cannot be
achieved by sacrificing either our nation’s security or our civil liberties. . . .
In providing background for its report on H.R. 7308, the House FISA bill then
under consideration, the House Permanent Select Committee on Intelligence noted:
The history and law relating to electronic surveillance for “national security”
purposes have revolved around the competing demands of the President’s
constitutional powers to gather intelligence deemed necessary to the security of
the nation and the requirements of the fourth amendment. The U.S. Supreme
Court has never expressly decided the issue of whether the President has the
constitutional authority to authorize warrantless electronic surveillance for
foreign intelligence purposes. Whether or not the President has an “inherent
power” to engage in or authorize warrantless electronic surveillance and, if such
power exists, what limitations, if any, restrict the scope of that power, are issues
that have troubled constitutional scholars for decades.
Electronic surveillance can provide vital information needed to identify those
who are acting or preparing to act against U.S. interests for the benefit of foreign



powers, including those engaged in espionage, sabotage, or terrorist acts or who
otherwise pose a threat to the nation or its citizens, and to uncover their plans or
activities. This information may not be readily uncovered by other investigative
means. Thus, surveillance can provide a valuable tool for protecting the security of
the nation and its citizens. However, this investigative technique, by its nature, can
intrude into the privacy of both the target of the surveillance and those with whom
the target communicates. It also has the potential of chilling political discussion and
lawful dissent.
The framing of the current debate on this issue flows, in part, from questions
arising with respect to the Terrorist Surveillance Program (TSP), first revealed in
press accounts in December 2005. While little information regarding the details of
this NSA program is publicly available, the President has indicated that, “since
shortly after September 11, 2001, he had authorized the National Security Agency
(NSA) to intercept international communications into and out of the United States
of persons linked to al Queda or related terrorist organizations. The purpose of the
intercepts is to establish an early warning system to detect and prevent another
catastrophic terrorist attack on the United States.” Concerns surrounding the TSP
have led to continuing congressional oversight and a number of legislative proposals
focused upon providing the intelligence community with the tools it needs for foreign
intelligence collection to protect the United States and its citizens, while also
protecting the civil liberties of those impacted by such collection.
The current level of complexity and sophistication of global communications
technology can provide both increased opportunities for lawful private
communications and public debate, and increased means for communications
between those engaged in criminal wrongdoing or plans or actions which pose a
threat to U.S. national security. While this presents challenges to intelligence
collection for foreign intelligence purposes, the government has moved to utilize
these new technologies for both law enforcement and intelligence purposes. The
balance between these important governmental needs and protections of
constitutionally protected privacy interests and First Amendment protected activities
is dynamic, and there can be differences of opinion as to where the appropriate
balance point between them may be found.
Collection of Foreign Intelligence Information
from Foreign Persons and United States Persons
Located Abroad
A second, related issue in the current debate concerns the appropriate
circumstances or standards for collection of foreign intelligence information from
foreign persons and United States persons abroad. This issue can best be understood
when set in the context of recent developments, to the extent that pertinent
information is publicly available.
In July 2007, an unclassified summary of the National Intelligence Estimate
(NIE) on “The Terrorist Threat to the US Homeland” was released. The NIE
expressed the judgement, in part, that the U.S. Homeland will face a persistent and



evolving threat over the next three years, the main threat coming from Islamic
terrorist groups and cells, particularly al Qaeda.
In a January 17, 2007, letter to Chairman Leahy and Ranking Member Specter
of the Senate Judiciary Committee, then Attorney General Gonzales advised them
that, on January 10, 2007, a Foreign Intelligence Surveillance Court judge “issued
orders authorizing the Government to target for collection international
communications into or out of the United States where there is probable cause to
believe that one of the communicants is a member or agent of al Qaeda or an
associated terrorist organization.” The Attorney General stated that, in light of these
orders, which “will allow the necessary speed and agility,” all surveillance previously
occurring under the Terrorist Surveillance Program (TSP) would now be conducted
subject to the approval of the FISC. He indicated further that, under these
circumstances, the President had determined not to reauthorize the TSP when the
then current authorization expired. The Attorney General also noted that the
Intelligence Committees had been briefed on the highly classified details of the FISC
orders and advised Chairman Leahy and Senator Specter that he had directed the
Acting Assistant Attorney General for the Office of Legal Counsel and the Assistant
Attorney General for National Security to provide them a classified briefing on the
details of the orders. Because the contents of these orders remain classified, the
scope of or limitations with respect to any authority that may have been provided
remain unknown.
On April 13, 2007, the Administration announced that it had submitted draft
legislation to the Congress regarding modernization of FISA. This draft legislation
included a proposed new section 102A of FISA which would authorize the President,
acting through the Attorney General, to permit acquisition of foreign intelligence
information for up to one year concerning persons reasonably believed to be outside
the United States if the Attorney General certifies in writing under oath that he has
made four specific determinations.
On August 2, 2007, the DNI released a statement on “Modernization of the
Foreign Intelligence Surveillance Act.” In his statement, Admiral McConnell
regarded such modernization as necessary to respond to technological changes and
to meet the Nation’s current intelligence collection needs. He viewed it as essential
for the intelligence community to provide warning of threats to the United States.
One of two critically needed changes perceived by the DNI was his view that a court
order should not be required for gathering foreign intelligence from foreign targets
located overseas. Admiral McConnell did, however, indicate that he would be
willing to agree to court review, after commencement of needed collection, of the
procedures by which foreign intelligence is gathered through classified methods
directed at foreigners outside the United States.
Some news accounts suggest that a FISC court ruling this Spring may have
limited the authority of the United States, in certain circumstances, to engage in
surveillance of foreign conversations taking place outside the United States. Admiral
McConnell stated in remarks included in the transcript of an interview published in
the El Paso Times on August 22, 2007, that on or about May of this year, when
another judge of the FISC considered an application for renewal or extension of the
surveillance approved under the January 10 orders, that judge interpreted the



requirements of FISA differently from the judge who had issued the January 10
orders, and deemed a FISA warrant necessary for surveillance of wire
communications of a foreign person in a foreign country.
Views differ as to the scope of the need and the means by which this need may
be met. Can this concern be addressed by solutions directed solely at electronic
surveillance or acquisitions without a court order from the FISC of communications
between foreign persons in communication with other foreign persons all located
outside the United States, whether or not those communications are routed through
the United States at some point in their transmission? Or must the solution be crafted
in such a way as to permit such surveillance or acquisitions of the communications
of foreign persons located abroad, whether they may be in communication only with
other non-U.S. persons, or both non-U.S. persons and U.S. persons, located outside
the United States? What is required if some of the communications of the foreign
person targeted in the surveillance or acquisition are with U.S. persons or non-U.S.
persons located in the United States? May such foreign intelligence be collected
from U.S. persons abroad without a Foreign Intelligence Surveillance Court order
pursuant to a certification by the Attorney General or the Attorney General and the
DNI jointly or whether a court order is required prudentially or constitutionally under
the Fourth Amendment?
Legislative Response: Foreign Intelligence Surveillance
of Foreign Persons Abroad
On August 5, 2007, the Protect America Act of 2007 was enacted into law, P.L.
110-55, which provided that “[n]othing in the definition of electronic surveillance
under section 101(f) [of FISA] shall be construed to encompass surveillance directed
at a person reasonably believed to be located outside of the United States.” It also
created a new procedure under section 105B(a) of FISA under which the Attorney
General and the DNI, for periods of up to one year, may authorize acquisition of
foreign intelligence information concerning persons reasonably believed to be outside
the United States, if the Attorney General and the DNI determine, based on the
information provided to them, that five criteria have been met. This authority was
similar, but not identical to, the proposed section 102A of FISA in the
Administration’s draft bill. P.L. 110-55 expired on February 16, 2008, after passage
of a fifteen-day extension to its original sunset date. Under the transitional
provisions in Section 6 of the Protect America Act, the acquisitions authorized while
the act was in force may continue until their expiration.
H.R. 3773 as originally passed by the House provides that no court order is
needed for electronic surveillance directed at acquisition of the contents of
communications between persons not known to be U.S. persons who are reasonably
believed to be located outside the United States, without regard to whether the
communication is transmitted through the United States or the surveillance device
is located in the United States. If the communications of a U.S. person are
inadvertently intercepted, stringent constraints upon retention, disclosure,
dissemination, or use would apply. However, the bill provides for a FISC order for
acquisitions for up to one year of communications of non-U.S. persons reasonably
believed to be outside the U.S. to collect most types of foreign intelligence



information by targeting those persons, where those persons may be communicating
with persons inside the United States. It also establishes requirements for such
acquisitions.
The Senate amendment to H.R. 3773 would permit the Attorney General and the
DNI to jointly authorize, for up to one year, targeting of persons reasonably believed
to be outside the U.S. to acquire foreign intelligence information if certain statutory
criteria are met. The Senate bill does not require prior approval by the FISC of
applicable certifications, targeting procedures and minimization procedures in
connection with the acquisition of communications of non-U.S. persons abroad, nor
does it require adoption and submission of compliance guidelines. Rather, it requires
submission of a certification or a targeting or minimization procedure, or an
amendment thereto, to the Foreign Intelligence Surveillance Court (FISC) within five
days of making or amending the certification or adopting or amending the procedure.
Where the Attorney General and the DNI determine that immediate action is required
and time does not permit preparation of a certification prior to initiation of an
acquisition, the Senate bill requires the Attorney General and the DNI to prepare the
certification, including such determination, within seven days after the determination
is made. If the FISC finds that a certification meets statutory requirements and
targeting and minimization procedures are consistent with statutory requirements and
meet constitutional standards under the Fourth Amendment, the FISC would enter
an order approving continued use of the procedures involved. If the court finds that
the required standards are not met, then the FISC would enter an order directing the
government, at the government’s election and to the extent required by the FISC
order, to correct any deficiencies within 30 days or cease the acquisition.
In the absence of an emergency authorization, the House amendment to the
Senate amendment to H.R. 3773 requires prior approval by the FISC of the
applicable targeting procedures, minimization procedures, and certification before
the Attorney General and the Director of National Intelligence (DNI) may authorize
acquisition of the contents of communications of non-U.S. persons reasonably
believed to be located outside the United States. The FISC would have 30 days after
a certification is submitted to review the certification and the targeting and
minimization procedures and to approve or deny an order regarding such an
acquisition.
The House amendment also requires the Attorney General, in consultation with
the DNI, to adopt guidelines to ensure compliance with limitations imposed by the
bill on such acquisitions and to ensure that an application is filed under section 104
or 303 of FISA, if required by that act. The guidelines are to be submitted to the
FISC, the congressional intelligence committees, and the House and Senate Judiciary
Committees.
H.R. 6304 would amend FISA to permit the Attorney General and the DNI to
jointly authorize targeting of persons reasonably believed to be non-U.S. persons
located outside the United States for periods of up to one year. Proposed section 702
of FISA contains explicit limitations, including protections against reverse targeting
in connection with the acquisition of the communications of such persons. A
certification by the Attorney General and the DNI that certain statutory criteria have
been met, applicable targeting procedures, and minimization procedures would be



subject to judicial review by the FISC. The certification would attest, in part, that
procedures are in place that have been approved, have been submitted for approval,
or will be submitted with the certification for approval by the FISC that are
reasonably designed to ensure that an acquisition is limited to targeting persons
reasonably believed to be located outside the United States, and to prevent the
intentional acquisition of any communication where the sender and all intended
recipients are known at the time of the acquisition to be located in the United States.
Generally, if the certification and targeting and minimization procedures meet the
statutory requirements and are consistent with the Fourth Amendment, a FISC order
approving them would be issued prior to implementation of the acquisition of the
communications at issue. If the FISC finds deficiencies in the certification, targeting
procedures, or minimization procedures, the court would issue an order directing the
government to, at the government’s election and to the extent required by the court’s
order, correct any such deficiency within 30 days or cease, or not begin, the
implementation of the authorization for which the certification was submitted.
Legislative Response: Foreign Intelligence Surveillance
of U.S. Persons Outside the United States
Generally, the full extent of Fourth Amendment protections attach to the privacy
interests of U.S. persons within the United States. Fourth Amendment protections
also attach to U.S. citizens abroad. However, the operation of its protections outside
the United States may differ from that in the United States due to the fact that a
citizen abroad may not have the same expectation of privacy. In addition, the
Warrant Clause of the Fourth Amendment may not apply outside the United States
where U.S. magistrates have no jurisdiction. A determination whether interception
of a communication abroad is lawful turns upon the law of the country where the
interception occurs, so, depending upon location, the rights available may differ
significantly. In addition, the availability of Fourth Amendment protections are
affected by whom the search was executed, and the extent of any U.S. role. If the
U.S. plays no role, then the Fourth Amendment does not attach, and the exclusionary
rule does not apply to evidence obtained by or derived from such a search unless the
foreign conduct “shocks the conscience.” On the other hand, if warrantless electronic
surveillance targeted at a U.S. citizen’s communications is conducted abroad for the
purpose of gathering foreign intelligence by U.S. officials, the U.S. district court in
United States v. Bin Laden, 126 F. Supp. 2d 264, 277 (S.D.N.Y. 2000), has held that
it will be deemed reasonable if it is authorized by the President, or the Attorney
General pursuant to the President’s delegation, and the surveillance was conducted
“primarily for foreign intelligence purposes and . . . targets foreign powers or their
agents.”
In addition to considering the scope of constitutional privacy protections
available to U.S. citizens or U.S. persons abroad, the 110th Congress, in FISA
legislation before it, is also considering what it deems the appropriate level of privacy
protection to be afforded such persons while outside the United States. In addition
to the Protect America Act of 2007, P.L. 110-55 (August 5, 2007), the Senate-passed
amendment to H.R. 3773, the House-passed amendment to the Senate amendment
to H.R. 3773, and H.R. 6304 each addresses procedures for targeting U.S. persons



reasonably believed to be located outside the United States to collect foreign
intelligence information.
The Senate amendment to H.R. 3773, the House amendment to the Senate
amendment to H.R. 3773, and H.R. 6304 each provide for targeting of U.S. persons
reasonably believed to be located outside the United States for up to 90 days pursuant
to a FISC order if statutory criteria are met. Such an order could be renewed for
additional 90-day periods upon submission of renewal applications meeting the same
standards. In the case of an emergency authorization by the Attorney General of an
acquisition, each bill requires notice to a FISC judge by the Attorney General or his
designee at the time the decision is made to conduct such an acquisition and requires
the filing of an application for a FISC order within seven days of the Attorney
General’s authorization of the emergency acquisition. Minimization procedures
would apply to such an acquisition.
Under each of these bills, in the absence of a judicial order approving an
acquisition originally authorized by the Attorney General on an emergency basis, the
acquisition would terminate when the information sought is obtained, when an
application for the order is denied, or when seven days have elapsed, whichever is
earliest. Without a FISC order, no information acquired or evidence derived from an
emergency acquisition, except under circumstances where the target of the
acquisition is determined not to be a U.S. person, may be received in evidence or
disclosed in federal, state, or local proceedings; nor could any information
concerning a U.S. person acquired from such acquisition subsequently be used or
disclosed in any other manner by federal officers or employees without the consent
of such person, except with the approval of the Attorney General if the information
indicates a threat of death or serious bodily harm to any person.
Limitations on Liability for
Telecommunications Providers
Furnishing Aid to the Government
The second of the two critical needs identified by the DNI in his August 2nd
statement was a need for liability protection for those who furnish aid to the
Government in carrying out its foreign intelligence collection efforts. He sought both
retrospective relief from liability for those who are alleged to have aided the
Government from September 11, 2001 to the present in connection with electronic
surveillance or collection of other communications related information, and
prospective liability protection for those telecommunications providers who furnish
aid to the government in the future whether pursuant to a court order or a certification
by the Attorney General or the Attorney General and the DNI that the acquisition or
electronic surveillance involved is lawful and that all statutory requirements have
been met.
Under current law, there are a number of statutory sections which provide some
limitation on liability for telecommunication providers who furnish aid to the
government in connection with electronic surveillance or a physical search, or the
installation of a pen register or trap and trace device pursuant to a court order under



FISA. In addition, 18 U.S.C. § 2511(2)(a) bars suit in any court against any provider
of wire or electronic communication service, its officers, employees, or agents,
landlord, custodian, or other specified person for providing information, facilities, or
assistance in accordance with the terms of a court order, statutory authorization, or
a certification in writing by the Attorney General or a person specified under 18
U.S.C. § 2518(7) that no warrant or court order is required by law, that all statutory
requirements have been met, and that the specified assistance is required.
Prospective relief from liability for those furnishing aid to the government
pursuant to a court order or certification or a directive pursuant to statute requiring
compliance with government demands for assistance is contemplated in a number of
bills, including H.R. 3773 as originally passed, the Senate Amendment to H.R. 3773,
the House amendment to the Senate amendment to H.R. 3773, and H.R. 6304. All
three versions of H.R. 3773, and H.R. 6304 authorize the FISC to compel compliance
through the contempt power, as did P.L. 110-55 while it was in force.
Retroactive immunity presents more difficult issues. There are currently
pending a substantial number of law suits against the telecommunications providers
who are alleged to have furnished aid to the government in connection with its
warrantless surveillance programs since September 11, 2001, and other programs.
Approximately 40 of these suits are currently pending in the Northern District of
California under an order of the Judicial Panel on Multidistrict Litigation. On August
9, 2006, pursuant to 28 U.S.C. § 1407, the Judicial Panel on Multidistrict Litigation
transferred 17 civil actions that were pending throughout the country to the Northern
District of California, and assigned them to Judge Vaughn Walker for coordinated
or consolidated pretrial proceedings in In Re: National Security Agency
Telecommunications Records Litigation, MDL-1791. Another 26 cases were treated
as potential tag-along actions under the multidistrict litigation rules. The panel of
five federal trial and appellate court judges found that all these class actions share
“factual and legal questions regarding alleged Government surveillance of
telecommunications activity and the participation in (or cooperation with) that
surveillance by individual telecommunications companies,” and thus centralization
of the cases “is necessary in order to eliminate duplicative discovery, prevent
inconsistent pretrial rulings (particularly with respect to matters involving national
security), and conserve the resources of the parties, their counsel and the judiciary.”
Arguments may be made on both sides with respect to whether retroactive
immunity should be granted telecommunications providers who are alleged to have
assisted the government in such programs. For example, the cooperation of such
providers is critical to the government’s capacity to pursue electronic surveillance to
gather foreign intelligence information, and is also essential for collection of
communications records for pattern analysis. If the telecommunication providers
who responded to the government’s requests or demands for assistance did so in
good faith reliance upon assertions by the government that the demand was lawful
and that a court order was not required, it may be argued that the providers should be
immunized from ill effects flowing from such good faith reliance. Some have argued
that the unique factual context militates in favor of such relief from liability, to the
extent those who responded to the government’s requests for assistance in the wake
of 9/11 did so in response to government assertions that their cooperation was
necessary to protect against further attacks.



In many of the suits filed, the government has asserted states secrets privilege
with respect to the programs involved and the role of any of the telecommunications
carriers with respect thereto. This is a common law evidentiary privilege, which may
only be asserted by the government, that protects information from discovery when
its disclosure would be inimical to the national security. The privilege can come into
play in three ways. If the very subject matter of the case is a state secret, an assertion
of the privilege can cause the case to be immediately dismissed and the action barred.
If, however, this prong of the state secrets privilege does not apply, the privilege may
operate to bar admission into evidence of information which will damage the security
of the United States. The plaintiff then goes forward on the basis of evidence not
covered. If the plaintiff cannot prove a prima facie case with nonprivileged evidence,
then the case may be dismissed. On the other hand, if the privilege deprives a
defendant of information that would otherwise give the defendant a valid defense to
the claim, then the court may grant summary judgment to the defendant. In the
current context, to the extent that a defendant telecommunications providers may
have a valid claim of immunity under 18 U.S.C. § 2511(2)(a), but for the application
of the state secrets privilege to the identities of any providers who may have
furnished aid to the government, an argument may be made that the
telecommunications providers so impacted should be afforded immunity from suit.
On the other hand, such suits may be the only means by which those who may
have been adversely impacted by such government activities may obtain any remedy
for any injuries incurred. These injuries may have impacted First and Fourth
Amendment protected interests, and there may be no other means of vindicating
those rights. In addition, the telecommunications providers provide the front line of
defense of those rights against governmental abuse if the government demand or
request is unlawful. In some instances, it may be argued that a telecommunications
provider has a statutory obligation to protect customer records from unlawful access.
Such arguments militate against affording relief from liability to any providers who
may have permitted unlawful access.
In addition to these arguments, some have argued that, because the
Administration has not shared information repeatedly sought by some committees of
jurisdiction with respect to the role of the telecommunications providers in the TSP
or other pertinent intelligence activities, the Congress does not have adequate
information to determine whether relief for the telecommunications carriers is
warranted.
Legislative Response
Under proposed section 802(a) of FISA in Title II of H.R. 6304, a civil action
may not lie or be maintained in a federal or state court against any person for
providing assistance to an element of the intelligence community, and must be
dismissed promptly, if the Attorney General certifies to the U.S. district court in
which the action is pending that:
(1) any assistance by that person was provided pursuant to an order of the court
established under section 103(a) directing such assistance;



(2) any assistance by that person was provided pursuant to a certification in
writing under section 2511(2)(a)(ii)(B) or 2709(b) of title 18, United States
Code;
(3) any assistance by that person was provided pursuant to a directive under
section 102(a)(4), 105B(e), as added by section 2 of the Protect America Act of

2007 (Public Law 110-55), or 702(h) directing such assistance;


(4) in the case of a covered civil action, the assistance alleged to have been
provided by the electronic communication service provider was —
(A) in connection with an intelligence activity involving communications
that was —
(i) authorized by the President during the period beginning on
September 11, 2001, and ending on January 17, 2007; and
(ii) designed to detect or prevent a terrorist attack, or activities in
preparation for a terrorist attack, against the United States; and
(B) the subject of a written request or directive, or a series of written
requests or directives, from the Attorney General or the head of an element
of the intelligence community (or the deputy of such person) to the
electronic communication service provider indicating that the activity was

(i) authorized by the President; and
(ii) determined to be lawful; or
(5) the person did not provide the alleged assistance.
Under proposed subsection 802(b) of FISA, such a certification shall be given
effect unless the court finds that it is not supported by substantial evidence provided
to the court under that section. In the course of its judicial review, the U.S. district
court may examine the court order, certification, written request, or directive
described in proposed subsection 802(a) and any relevant court order, certification,
written request, or directive submitted to the court by the parties under proposed
subsection 802(d). Any such party would be permitted to participate in briefing or
argument of any legal issue in a judicial proceeding under this section to the extent
that such participation does not require disclosure of classified information to that
party. Any relevant classified information would be reviewed in camera and ex parte.
Any portion of the court’s written order that would reveal classified information
would be issued in camera and ex parte and maintain it under seal. Upon filing of a
declaration by the Attorney General under 28 U.S.C. § 1746 that disclosure of such
a certification or of the supplemental materials provided pursuant to proposed
subsections 802 (b) or (d) would harm the national security of the United States, the
U.S. district court would be required to review such certification and the
supplemental materials in camera and ex parte. Any public disclosure of such
certification and supplemental materials would be limited to a statement as to
whether the case is dismissed and a description of the legal standards that govern the
order, without disclosing the paragraph of subsection (a) that is the basis for the
certification. If H.R. 6304 were to be enacted into law, proposed Section 802 of
FISA would apply to a civil action pending on or filed after the date of the enactment.
The Senate amendment to H.R. 3773 bars covered civil actions in a federal or
state court and requires that such an action must be dismissed promptly if the
Attorney General or above certifies to the court that the assistance alleged to have
been provided by the electronic communication service provider was in connection
with an intelligence activity involving communications that was authorized by the
President during the period beginning on September 11, 2001, and ending on January



17, 2007; and designed to detect or prevent a terrorist attack, or activities in
preparation for a terrorist attack, against the United States; and described in a written
request or directive from the Attorney General or the head of an element of the
intelligence community (or the deputy of such person) to the electronic
communication service provider indicating that the activity was authorized by the
President and determined to be lawful. A covered civil action in federal or state court
would also be barred and should be dismissed promptly if the Attorney General
certifies to the court that the electronic communication service provider did not
provide the alleged assistance. The Attorney General’s certification would be subject
to judicial review under an abuse of discretion standard. If the Attorney General
files a declaration under 28 U.S.C. § 1746 that disclosure of a certification made
under subsection 202(a) of the bill would harm United States national security, the
court shall review the certification in camera and ex parte, and limit public disclosure
concerning such certification, including any public order following such ex parte
review, to a statement that the conditions of subsection 202(a) of the bill have been
met, without disclosing the subparagraph of subsection 202(a)(1) that is the basis for
the certification. The authorities of the Attorney General under section 202 are to be
performed by the Attorney General, or the Acting Attorney General, or a designee in
a position not lower than the Deputy Attorney General.
The House-passed amendment to the Senate Amendment took a different
approach. Proposed section 802, in part, provides authority for the government to
intervene in any covered civil action. Any party may submit to the court evidence,
briefs, arguments, or other information on any matter with respect to which a state
secrets privilege has been asserted. The section also authorizes the court to review
any such submissions in accordance with procedures set forth in section 106(f) of
FISA; and permits the court, on motion of the Attorney General, to take additional
steps to protect classified information. The court, to the extent practicable and
consistent with national security would be permitted to request any party to present
briefs and arguments on any legal question the court finds raised by such submission,
regardless of whether that party has access to the submission. Under new subsection
802(e) of FISA, for any covered civil action alleging that a person provided
assistance to an element of the intelligence community pursuant to a request or
directive during the period from September 11, 2001 through January 17, 2007, the
Attorney General would be required to provide to the court any request or directive
related to the allegations under the procedures set forth in new subsection 802(b).
H.R. 6304, therefore, differs from prior House and Senate amendments to H.R.

3773 in a number of respects, while having similarities to them in others. Both H.R.


6304 and the Senate amendment would bar civil actions in federal or state court
against persons providing assistance to an element of the intelligence community if
the Attorney General certifies that certain statutory criteria are met. They differ to
some degree as to the criteria involved.
H.R. 6304 provides for judicial review of the Attorney General’s certification
under a substantial evidence standard, while the Senate amendment to H.R. 3773
provides for review of the Attorney General’s certification using an abuse of
discretion standard. The House amendment to the Senate amendment to H.R. 3773
provides for judicial review of any submissions by any party relating any matter as



to which state secrets privilege has been asserted, but does not specify the standard
of review.
H.R. 6304 expressly permits the district court, in its review, to examine any
court order, certification, written request, or directive described in proposed
subsection 802(a) or submitted to the court by the parties, and, permits party
participation in briefs and arguments on any legal issue in the judicial proceeding to
the extent that such participation does not require disclosure of classified information
to that party. This does not have a parallel in the Senate amendment. However, it
has some points of similarity with the House amendment, which permits submissions
by the parties of evidence, briefs, arguments, or other information relating to any
matter with respect to which state secrets privilege has been asserted, while providing
protections for classified information. For any covered civil action alleging that a
person provided assistance to an element of the intelligence community pursuant to
a request or directive during the September 11, 2001 to January 17, 2007 period, the
House amendment requires the Attorney General to provide the court with any
request or directive related to the allegations.
All three bills make provision for ex parte, in camera review of classified
information. H.R. 6304 and the Senate amendment both place restrictions on public
disclosure of information regarding the certification and the court’s order.