Dear XXXX:
Thank you for contacting me with regard to S.2248, the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2007. I appreciate hearing from you.
As a U.S. Senator, my primary responsibilities are to uphold the Constitution and protect the American people. These responsibilities have guided me during the recent Senate debate on reforming and modernizing the rules governing America’s surveillance and intelligence-gathering system.
As you know, S.2248 passed the Senate on February 12, 2008 by a vote of 68-29. While I was disappointed the Senate did not adopt several amendments that would have gone further in strengthening civil liberties protections, I ultimately supported final passage of the bill.
I believe S.2248 gives intelligence officials the tools they need to pursue foreign threats, and, furthermore, institutes stronger oversight mechanisms to preserve the privacy rights of American citizens. Specifically, S.2248:
· Declares that the FISA court is the sole authority for the approval of electronic surveillance procedures, in response to the Bush administration’s five-year warrantless surveillance program outside of FISA;
· Implements a six-year sunset of the program to allow Congress to evaluate how the new authorities are carried out;
· Requires FISA court approval of foreign targeting procedures for determining that the target of the surveillance is reasonably believed to be outside the United States;
· Grants the FISA court oversight of the “minimization” procedures governing the protection of the identities and private information of U.S. citizens incidentally collected during the monitoring of a foreign target;
· Requires FISA court approval, on an individual basis, of the targeting of Americans overseas based on the court’s review of whether there is probable cause to believe that the person is an agent of a foreign power;
· Requires the FISA court to provide Congress with judicial opinions and interpretations pertaining to the new surveillance program;
· Requires the Attorney General and the Director of National Intelligence to assess overall compliance with targeting and minimization procedures and submit their findings every six months to the FISA court, as well as the House and Senate Intelligence Committees.
Taken together, these reforms represent a significant improvement over previous FISA laws in terms of oversight and accountability.
During the debate, the Senate also addressed the issue of retroactive immunity for telecommunications companies. As you may know, in the wake of the September 11th attacks, it is alleged that a number of telecommunications companies in the United States were asked by the National Security Agency (NSA) to turn over the personal data of their American customers for examination without a warrant. Subsequently, a number of Americans have filed lawsuits against these companies for violating their Fourth Amendment right to privacy.
S.2248 as reported to the full Senate provides narrowly circumscribed, retroactive immunity to the telecommunications companies in question. In response to this, I cosponsored Senate Amendment 3858, which would have referred the lawsuits to the FISA Court for review. Under this approach, if the court determined that the companies acted in good faith and had a reasonable belief they were abiding by the law when they complied with the government’s requests, the lawsuits would have been thrown out of court; if not, they would have proceeded as planned. Unfortunately, this amendment did not garner enough support to be included in the final Senate bill.
S.2248 now awaits action in a House-Senate conference committee. Please rest assured that I will keep your thoughts in mind as my colleagues and I continue work on this legislation.
Again, thank you for taking the time to share your views.
Sincerely,
Ken Salazar
United States Senator

While it was nice to actually hear back from Senator Salazar, I’m a bit disappointed at the content. In my correspondence, I specifically called out the failure to kill retroactive immunity as the reason for my writing. As you can see above, the response does a good job of skirting the issue until the last paragraph or so.

I am relieved that the proposed amendment 3858 did not pass, as it sounds like it would have been too easy for telecoms to get off the hook. All they would have to do is assure the court that they weren’t aware of any laws that were broken, and they would be off the hook.

I think Senator Salazar’s response can be summed nicely by this line: "While I was disappointed the Senate did not adopt several amendments that would have gone further in strengthening civil liberties protections, I ultimately supported final passage of the bill." I find it rather amusing that the good senator was disappointed – considering he voted against one of the amendments that would have strengthened our civil liberties.

In this case "certain assistance" means the activity that we’ve been hearing about that violates our Fourth Amendment rights – telecoms assisting the NSA in warrantless wiretapping activities.

Apparently my Colorado Senators don’t seem to think that holding telecoms accountable for their actions is a good idea – they both voted against the amendment. I certainly am not surprised by Republican Wayne Allard‘s "nay" vote, but I’ll have to admit that I expected better from Democrat Ken Salazar.

Want to see how your Senator voted? Look here for the official tallies. If your Senator voted "nay", I strongly urge you to contact him or her and express your disappointment. I have already sent emails to both Allard and Salazar – hopefully enough other people will do the same to make our Senators realize that they work for their constituents and not large companies.

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The Electronic Frontier Foundation has some great resources regarding retroactive immunity and warrantless wiretapping.