I’ve finally had a chance to flip through the FISA amendments the House passed a couple of weeks ago. The most striking thing about the bill is how long it is. At 120 pages, it’s twice as long as the RESTORE Act the House passed last fall. And frankly, I’m not sure it’s an improvement, although I don’t have the time or patience right now to read the whole thing in detail. What the Dems appear to have done (and I only skimmed it, so I’m probably missing some of the nuances) is to give some ground on the idea that the Bush administration “authorizations” can be used in place of traditional warrants for foreign-to-domestic communications, but then trying to avoid funny business by imposing an extremely robust system of judicial review of these “authorizations.” That’s certainly better than the Senate bill, which required courts to rubber-stamp the “authorizations.” Certainly, if we’re going to loosen the requirement that eavesdropping on individual Americans doesn’t require a warrant, we should do our best to protect our privacy in other ways. But the result is a bill that’s far more complex than it would have been if Congress had left the existing FISA framework in place and focused on clarifying those edge cases that technological changes have rendered obsolete.
Ultimately, however, none of this may matter very much. The administration has long since made it clear that they’re not interested in good-faith negotiations on this subject, and that they’d veto any legislation that preserves the principle of judicial review. Nor has the Senate shown any particular concern with preserving civil liberties. So in practice, the only FISA legislation that’s likely to pass while George W. Bush is in office would have been bad FISA legislation.
So what might matter the most about the latest House surveillance bill is that the House had the backbone to—again—pass legislation they knew the White House would veto. It’s now looking increasingly likely that neither side will budge, and that Congress won’t produce FISA legislation at all this year. That’s probably the best outcome we realistically could have hoped for. There’s a good chance that our new president will be more respectful of civil liberties than our current one. And hopefully at that point Congress and the new president will be able to craft surveillance legislation that makes the minor changes to the FISA regime that are necessary without gutting Americans’ privacy in the process.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.