Rich Galen

The Foreign Intelligence Surveillance Act - FISA - is set to expire early next year and the Democrats in Congress are feverishly looking for ways to weaken it to try and score political points among its wing.

FISA was first adopted in 1978 and was updated as part of the Patriot Act of 2001. It was originally passed as a reaction to the misuse of intelligence services during the whole Watergate business.

According to a 2003 US Navy Memo FISA is the statute which authorizes federal agents to conduct electronic surveillance, as part of a foreign intelligence or counterintelligence investigation, without obtaining a traditional, probable-cause search warrant.

The major change in FISA following the 9/11 attacks, again according the Navy memo, is called "roving authority."

Prior to the amendment, the law required the FISA court to specify the location of the surveillance and to name any third parties whose cooperation would be required, such as a telephone company or an internet service provider. If the target of the surveillance changed telephone companies, the government would have to return to the FISA court and request a supplemental order naming the new third party.

With the change, the FISA court can now issue a generic order that can be served on any third party needed to assist with the surveillance.

It is that "third party" issue which was at the heart of Senate Judiciary Committee action yesterday. On two separate votes, the panel first voted to grant immunity from law suits to "third parties" such as telephone, cable, and other common carriers which provide data to the government. Then the Committee voted NOT to grant such immunity.

They were for it before they were against it.

If you are on the fence about whether phone companies should be able to provide traffic info to the government, consider the following which was issued after the second vote:

"We are ecstatic that the Democrats were able to strip this measure out of the Judiciary Bill."

That was issued by the American Civil Liberties Union. Here's a pretty good rule of thumb: Anything which makes the ACLU "ecstatic" when it comes to dealing with terrorists needs to be examined very, very carefully.

The House, meanwhile, went ahead and passed a version of the bill which does not provide immunity to phone companies which means phone companies won't comply with requests from intelligence services to provide information on phone calls made to and from suspected terrorists outside the United States.

Good idea, huh?

Rich Galen

Rich Galen has been a press secretary to Dan Quayle and Newt Gingrich. Rich Galen currently works as a journalist and writes at