These are some of the actual problems with the FISA legislation, the nuts and bolts, as broken down by Ars Technica:
- Under current law, the government must obtain court approval to tap a phone line or fiber optic cable in the United States even if the other end of the communication is abroad. An application for a FISA warrant must specify the person or organization being targeted and present evidence that the target is an “agent of a foreign power”. Under the new bill, the Attorney General and the Director of National Intelligence can sign off on “authorizations” of surveillance programs “targeting people reasonable believed to be located outside the United States.” The government must submit a plan describing the “minimization” procedures to be used to avoid intercepting too many communications of American citizens but is no longer required to “identify the specific facilities, places, premises, or property” at which the eavesdropping will occur.
- Targets selected for surveillance will be at the NSA’s discretion and unreviewed by a judge.
- There is no limit to the breadth of “authorizations” the government might issue. A single authorization could cover the interception of all international traffic passing through an entire city, for example with software intended to minimize which communications are reviewed by human analysts.
- Under existing law, the government must obtain judicial approval within 72 hours of the start of emergency wiretapping. Under the new law, the review of “certifications” of requests to wiretap can drag out as long as 4 months and the wiretapping can continue during the entire review process.
- Although this “authorization” process is only applicable when the “target” is not an American citizen or legal resident, in practice the consequence may be that broader wiretapping powers are easier to obtain than narrower ones and will therefore be more regularly requested. The government could not authorize the targeting of a particular resident’s international communications without oversight, but could authorize a dragnet surveillance program that intercepted international communications for all of a cities residents under the pretext of “targeting” foreign terrorists who might happen to communicate with the residents.
- Because FISA does not prohibit the coordination between foreign intelligence gathering and domestic law enforcement, the FBI could theoretically ask the NSA to use their filters to intercept evidence of copyright infringement, Internet gambling, etc. Americans whose communications were turned over could not be the “target” but the information but that wouldn’t change the fact that they could still be prosecuted.
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