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Senate amends FISA, allows immunity
Robert Lemos, SecurityFocus 2008-07-09

Questions about the Bush Administration's use of wiretapping for much of the past decade will likely remain unanswered, after the U.S. Senate passed on Wednesday a bill that will broaden the intelligence community's surveillance powers and grant immunity to telecommunications companies for their past cooperation.

The bill, known as the FISA Amendments Act of 2008, gives the U.S. government greater leeway in wiretapping foreign terror and espionage suspects and grants legal immunity to telecommunications companies that cooperated with the Bush Administration in the past. The legislation allows intelligence agencies to seek approval for broad wiretap orders lasting a year, gives more time for officials to seek -- and for judges to approve -- a wiretap order in an emergency, and provides that the legislation is the exclusive means through which domestic surveillance can be performed.

"Today the Senate ensured that our national security officials have the tools they need to help protect our country from future terrorist attacks," Senate Minority Leader Mitch McConnell, R-KY, said in a statement. "By passing this bipartisan bill, the Senate has taken decisive action to improve the security of our country and make our homeland safer."

The vote, 69 to 28, ended a nearly one-year debate pitting lawmakers who support greater surveillance powers for the U.S. government against civil libertarians and privacy advocates who fear the law sacrifices freedom and the ability to oversee government for vague assurances of security. When President Bush signs the bill into law, as experts expect him to, nearly 40 lawsuits pending against communications firms will effectively be scuttled.

The pro-privacy Electronic Frontier Foundation blasted Democratic legislators on Wednesday who supported the bill.

"It is an immeasurable tragedy that just after its return from the Fourth of July holiday, the Senate has chosen to pass a bill that betrays the spirit of 1776 by radically expanding the president's spying powers and granting immunity to the companies that colluded in his illegal surveillance program," Kevin Bankston, a senior staff attorney with the Electronic Frontier Foundation (EFF), said in a statement.

Revising the 30-year-old Foreign Intelligence Surveillance Act (FISA) has preoccupied Congressional leaders and the Bush Administration ever since the New York Times revealed that the National Security Agency (NSA) had broadly eavesdropped on telephone and Internet communications. The agency had allegedly installed special rooms equipped with wiretapping hardware in important communications hubs with the blessing of major telecommunications firms. A whistleblower has claimed that AT&T had one such room, while a security consultant recently stated that a major cellular telecommunications company allowed a third party to directly connect, via a line known as the "Quantico circuit," into their systems.

The Foreign Intelligence Surveillance Act (FISA) passed in 1978, requires that all government surveillance for intelligence purposes must first be sanctioned by a court order allowing the eavesdropping from the Foreign Intelligence Surveillance Court (FISC). The secretive court, which rarely issues rulings, also allows emergency warrants up to 72 hours after surveillance has begun. Some critics have argued that the 72-hour limit is not long enough to file and get approved a warrant; the latest bill gives intelligence officials up to 7 days to apply for certification and the judge 30 days to approve the surveillance.

The FISA Amendments Act of 2008, or H.R. 6304, is a modified version of legislation that passed in the Senate in February, but which failed to be taken up by the House. The bill has greater oversight than the previous version that passed in the Senate, Dan Holler, Senate relations deputy for The Heritage Foundation, a conservative think tank, said in an interview last week.

"It is a compromise," Holler said. "You are seeing a lot of pressure to get something done."

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