February 12, 2008

Senate Approves Whitehouse Measure Safeguarding Privacy Against Government Spying

Washington, D.C. – During its consideration of reforms to a federal law that sets restrictions on when the government can spy on Americans, the U.S. Senate today passed an amendment sponsored by U.S. Senator Sheldon Whitehouse (D-R.I.) that significantly strengthens judicial oversight and safeguards the privacy rights of innocent Americans who are not targeted for surveillance.

“The Bush administration unilaterally assumed extraordinary authority to tap Americans’ phones and to invade Americans’ privacy – with seemingly no regard for individual rights,” said Whitehouse, a member of the Senate Select Committee on Intelligence and the Senate Judiciary Committee. “We need to assure that rules protecting Americans’ rights are being followed, and because this administration fears and rejects judicial oversight, that is precisely what is most needed.”

In 2005, the New York Times reported on a Bush administration program to wiretap electronic communications by Americans inside the country without first obtaining warrants, in an apparent attempt to sidestep the Foreign Intelligence Surveillance Act (FISA) of 1978, which sets strict limits on domestic government spying. In August of last year, under pressure from the administration to revise the existing law, Congress passed the Protect America Act (P.L. 110-55), which authorized expanded surveillance, but did not authorize the court that oversees the FISA program to ensure that any privacy protections were being implemented.

The Senate is now considering new legislation to repair the problems of the Protect America Act, an effort in which Whitehouse has been deeply involved. Whitehouse’s amendment to the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2007 (S. 2248) focuses on protections for Americans who are not the target of surveillance, but whose information or conversations may be incidentally intercepted during surveillance of a targeted person. In domestic law enforcement, there are clear, established procedures for “minimizing” the collection or retention of this information, to ensure that the privacy of innocent Americans is protected, and the prospect of judicial review is an important part of this protection.

S. 2248 gives the FISA Court the authority to approve minimization procedures, but says nothing about the Court’s corresponding inherent authority, common to all courts, to review whether the procedures it has approved are being followed, and to order compliance. The Whitehouse amendment would repair that flaw by making clear that nothing in S. 2248 reduces or contravenes the FISA Court’s inherent authority to enforce compliance with the Court-approved minimization procedures.

“As a former U.S. attorney and Rhode Island attorney general who oversaw wiretaps and other surveillance procedures, I’ve seen that law enforcement officials are more likely to follow the rules when there is a strong prospect of judicial oversight,” Whitehouse said. “It makes no sense to limit the court’s inherent authority to see whether rules it has approved are being followed, and to enforce compliance with these approved rules. It is not up to the executive branch to grade its own exams. That is a job for the courts.”


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