http://www.speaker.gov/legislation?id=0105The RESTORE Act of 2007
On November 15th, the House passed the RESTORE Act of 2007 (Responsible Electronic Surveillance That is Overseen, Reviewed, and Effective), H.R. 3773. This bill updates the Foreign Intelligence Surveillance Act (FISA) to provide meaningful and flexible surveillance tools for the intelligence community, while protecting the constitutional rights of Americans whose communications may be intercepted in the process. In August, Congress enacted a temporary FISA revisions bill (the Protect America Act; PL 110-55), which expires in February 2008 and was opposed by 181 House Democrats. The “self-executing” rule provides that a manager’s amendment shall be considered as adopted upon adoption of the rule. Following are highlights of the manager’s amendment and of the bill.
The Manager’s Amendment
The rule provides that the manager’s amendment shall be considered as adopted upon adoption of the rule. Key provisions of the manager’s amendment include:
* Clarifies that nothing in the bill shall be construed to prohibit lawful surveillance necessary to:
o Prevent Osama bin Laden, al Qaeda, or any other terrorist organization from attacking the U.S., any U.S. person, or any ally of the U.S.;
o Ensure the safety and security of our Armed Forces or other national security or intelligence personnel;
o Protect the U.S., any U.S. person, or any U.S. ally from the threat of WMD or any other threats to national security.
* Clarifies that the bill shall not be construed to prohibit surveillance of, or grant any rights to, undocumented aliens.
* Provides that NSA and other agencies can only disseminate identifying information of a U.S. person to other government agencies if a Senior Executive determines that such dissemination is necessary to understand the value of the intelligence and to protect national security.
* Establishes criteria for the FISA Court to determine whether the targeting procedures for ensuring that surveillance is reasonably designed to target only people outside the United States sufficiently protect U.S. person communications intercepted by the NSA.
The Bill
Authorizes surveillance program, while protecting innocent Americans’ rights. This bill provides a mechanism, through December 2009, to conduct foreign electronic surveillance for the purpose of defending against terrorism and other national security threats, without the need for individual court orders for overseas targets, while protecting the constitutional rights of Americans whose communications may be intercepted in the process.
Is tough on terrorists. The bill does not extend Fourth Amendment protections to overseas targets such as Osama bin Laden and other members of terrorist organizations. It also closes any “foreign-to-foreign” ambiguity by making it clear that purely foreign-to-foreign communications do not require a court order even when the communication transits the U.S. or when the acquisition is in the United States. This clarification is needed because some communications between foreign persons located overseas pass through routing stations here in the United States.
Gives intelligence community flexibility while mandating meaningful judicial review. In circumstances where there is a reasonable likelihood that surveillance against terrorists and other security threats will acquire Americans’ communications, the RESTORE Act provides that such surveillance be conducted under rules reviewed and approved by the FISA court. The bill grants the Director of National Intelligence (DNI) and the Attorney General authority to apply to the FISA court for a single court order (sometimes referred to as a “basket” court order) authorizing surveillance of a suspected terrorist organization abroad or other foreign power for up to one year, so long as there are reasonable procedures in place to ensure that only foreigners are targeted and Americans’ rights are preserved. The officials could also apply for one-year extensions of such court orders. Each order would apply to a group of suspected foreign terrorists. The Administration can seek as many orders as it wants.
Ensures that individual court orders for foreign terrorists are not needed. In endorsing this bill, the Washington Post editorial (10/14/07) points out that the bill ensures that individual court orders for terrorists abroad are not needed: “The measure produced by the House Intelligence and Judiciary Committees would alleviate the burden of obtaining individualized warrants
while still maintaining a critical oversight role for the FISA court. Instead of having to seek warrants on a case-by-case basis, intelligence agencies would be able to obtain programmatic orders from the court for such surveillance programs. However, the FISA court would have to approve the procedures under which surveillance is conducted – specifically, to ensure that appropriate safeguards are in place to protect the privacy of Americans whose communications with foreigners happen to be intercepted.”
Bolsters the FISA court’s oversight role, designed to protect innocent Americans’ rights. Under the bill, in reviewing applications for court orders, the FISA court would review and approve the following: 1) the government’s so-called “minimization procedures” to lessen the aggregation and retention of sensitive information about U.S. citizens; 2) the targeting procedures to ensure that surveillance is reasonably designed to target only people outside the United States; and 3) the guidelines to ensure that if a target becomes a person in the United States for whom collection requires a court order, an individualized order will be sought.
Provides for initial emergency period, to ensure no critical information goes uncollected. Under the bill, the DNI and the Attorney General would be authorized to conduct electronic surveillance for up to 45 days in an “emergency situation” if certain criteria are met.
Clarifies ambiguous language in Protect America Act on warrantless domestic searches. The bill clarifies and eliminates ambiguous language in the Protect America Act that appeared to authorize warrantless searches inside the United States, including physical searches of American homes, offices, computers, and medical records.
Restates current law stipulating that surveillance targeting Americans requires an individualized court order. The bill restates current law requiring an individualized court order from the FISA court when the electronic surveillance is targeting persons in the United States (defined as U.S. citizens and persons lawfully admitted for permanent residence.)
Requires regular audits and reports. The bill requires regular audits by the Justice Department Inspector General on communications collected under this authority and the number of U.S. persons identified in intelligence reports disseminated pursuant to this collection. These audits would be provided to the FISA court and to Congress.
Also requires an audit of the President’s warrantless surveillance programs. The bill also requires an audit and a report to Congress on the President’s Terrorist Surveillance Program and other warrantless surveillance programs.
Mandates record keeping. The bill mandates record keeping on any interception of the communications of U.S. persons.
Adds resources for FISA. The bill adds funding for personnel and technology resources at the FISA court and other government agencies responsible for making and processing FISA applications, to ensure that applications can be handled expeditiously.
Reiterates the exclusivity of FISA. The bill includes the House-passed bipartisan Schiff-Flake language that reiterates that FISA is the exclusive means to conduct electronic surveillance of Americans for the purpose of foreign intelligence collection.
Sunsets in December 2009. The bill sunsets on December 31, 2009 – allowing the Congress to examine how the surveillance authority granted in the bill has been used and what adjustments need to be made. The bill provides for a transition from the existing court orders under the Protect America Act (PL 110-55) to the new ones to ensure that the intelligence community does not go “dark” on any surveillance.
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