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H.R. 6304 Translated–What the FISA Compromise Really Means (cont)

Sec 105 of HR 6304 deals with a FISA Court Judge’s ruling on an application.  50 U.S.C. 1805 basically lays out the required procedure for a FISA Court judge to issue a ruling, and Sec 105 of HR 6304 amends that law.

From Sec 105 of HR 6304:

  1. Strikes a subparagraph that explicitly states that the judge must find that the president has authorized the Attorney General to approve applications for electronic surveillance.  Not sure on the impact of this really.  It clearly relates to the changes made by Sec 104 which strikes out one reference to the Attorney General’s approval being required on applications but leaves others.
  2. Strikes a requirement that a FISA Court order specify “whenever more than one electronic, mechanical, or other surveillance device is to be used under the order, the authorized coverage of the devices involved and what minimization procedures shall apply to information subject to acquisition by each device.”  This relates to the change made by Sec 104 which ended the requirement that this information be included in applications in the first place.  So this change is just making the applications and the resulting orders consistent.  It is a decrease in the judicial oversight capacity of the FISA court.
  3. In consistency with Sec 104, eliminates the distinction between foreign power targets and other targets (foreign power targets had lighter information requirements).  This would apply to say surveillance of a foreign embassy, or other foreign government facilities.
  4. Rewrites the law governing emergency surveillance orders.  The short version of the new law is that if the Attorney General ‘reasonably’ determines that an application would be approved if submitted, he can order the surveillance before submitting the application.  The application must be submitted or the surveillance ended within seven days.  If the surveillance is ended before an order is issued by a judge or the application is denied, any information gathered can never be used as evidence in any governmental body (courts, congressional comittees, regulatory bodies, anything with government authority).  The only change from pre-existing law with this one is that the time limit is increased from 72 hours to 7 days.  That seems a bit long in my opinion, however the limits (basically a ban) on the use of any information gathered without the blessing of a FISA court order are kept the same.  I’m not thrilled with the time span being as long as 7 days, but I can live with it.

Sec 106 of HR 6304 makes a small change to the law governing the use of information gained from electronic surveillance:

  1. There is a section in 50 U.S.C. 1806 that contains a clause requiring the destruction of any unintentionally acquired radio communications acquired in a situation where there is a reasonable expectation of privacy and both parties are in the US.  This is changed to simply read ‘communication’ rather than ‘radio communication.’  This is a good provision, and a point where existing law needed to be modernized.

The next section I’m going to cover is Sec 107 which makes amendments to the law governing physical searches.  I will hopefully get to that tonight.


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