In December 2005, the New York Times published an article that described a surveillance program of warrantless domestic wiretapping ordered by the Bush administration and carried out by the National Security Agency in cooperation with major telecommunications companies since 2002 (a subsequent Bloomberg article suggested that this may have already begun by June 2000).
Many critics have asserted that the Administration’s warrant-free surveillance program is a violation of the Fourth Amendment to the United States Constitution against warrantless search, and, a criminal violation of FISA.
The Bush administration maintained that the warrant requirements of FISA were implicitly superseded by the subsequent passage of the Authorization for Use of Military Force Against Terrorists. and that the President’s inherent authority under Article II of the Constitution to conduct foreign surveillance trumped the FISA statute. However, the Supreme Court decision in Hamdan v. Rumsfeld placed the legitimacy of this argument into question.
On July 28, 2007, President Bush announced that his Administration had submitted a bill to Congress to amend FISA. He suggested that the current law was “badly out of date” – despite amendments passed in October 2001 – and did not apply to disposable cell phones and Internet-based communications.
The bill he submitted to Congress would address these new technologies, Bush said, as well as restore FISA’s “original focus” on protecting the privacy of people within the United States, “so we don’t have to obtain court orders to effectively collect foreign intelligence about foreign targets located in foreign locations.”
He asked that Congress pass the legislation before its August 2007 recess, stating that “Every day that Congress puts off these reforms increases the danger to our nation. Our intelligence community warns that under the current statute, we are missing a significant amount of foreign intelligence that we should be collecting to protect our country”.
On August 3, 2007, the Senate passed the bill (S. 1927) in a vote of 60 to 28(110th Congress 1st Session Vote 309). The House followed by passing the bill, 227-183(House Roll Call 836) on August 3, 2007.
The bill altered the original 1978 law in many ways, including:
Warrant and notification requirements
The bill amended FISA to substitute the requirement of a warrant to conduct surveillance with a system of NSA (National Security Agency) internal controls.
The bill required notification to the FISA Court of warrantless surveillance within 72 hours of any authorization. The bill also required that “a sealed copy of the certification” be sent which would “remain sealed unless the certification is needed to determine the legality of the acquisition.”
The bill allowed the monitoring of all electronic communications of “Americans communicating with foreigners who are the targets of a U.S. terrorism investigation” without a court’s order or oversight, so long as it is not targeted at one particular person “reasonably believed to be” inside the country.