Note: The New Eavesdropping Bill

A new wiretapping bill has cleared committee in the House, meaning it will only be a matter of time before Senators have a chance to debate it. I wanted to take a few minutes at the outset to look at this bill and examine what it does.

First, it effectively repeals a wiretapping bill that Congress passed without much debate over the summer. In hindsight, Democrats have come to believe that they cow-towed to the Bush Administration on this summer's wiretapping bill, a.k.a. The Protect America Act of 2007, which essentially enshrined as law prior Bush wiretapping policy and procedure.

After passing the bill, Democrats appeared to utter a collective, "Oops!" Civil libertarians assailed the bill because it represented Congress's approval of warrantless wiretapping, arguably an unconstitutional procedure. This new wiretapping bill completely scraps this summer's bill.

Second, the big hub-bub so far has been this debate between House Democrats and President Bush about whether to grant immunity to the telecommunications companies that opened up their records and their hardware to Bush Administration eavesdroppers—apparently in violation of their own customers' privacy rights (whether those rights come from contract or from the Constitution, or both—I don't know).

The Bush Administration's main problem with the bill seems to be that it does not grant these telecommunications companies immunity.

I believe that this issue of immunity is not the most important aspect of the bill needing debate. I want to hear more about the "blanket" warrants.

Also, there will be serious debate about whether the bill should "sunset." The current bill expires after two years. Bush wants a permanent bill.

A Quick History

Under the original Foreign Intelligence Surveillance Act (FISA), passed in the seventies, the government HAD to go to a hush-hush intelligence court, a.k.a. a FISA court, to get a warrant for ANY eavesdropping.

This Bush Administration ignored this law during the nascent stages of its War on Terror. It did not go to a FISA court to get warrants before conducting surveillance of telephone conversation coming into or out of the U.S. This policy was exposed and created a controversy.

The surveillance law passed this summer allows the government to eavesdrop without a court order on communications conducted by a person reasonably believed to be outside the U.S., even when the communications flow through the U.S. communications network — or if an American is on one end of the conversation — so long as that person is not the intended focus or target of the surveillance.

To me this concept of "so long as that person is not the intended focus or target of the surveillance" is hard to grasp. But I think it means that if the communications are those of an individual specifically targeted in an investigation, the government must get a court order (warrant) before going ahead with the surveillance. If the government just stumbles upon two guys talking, they can listen in without a court order. I don't know, still doesn't sound that good.

The New Bill

The Democratic bill would allow the government to eavesdrop on a foreign target or group of targets located outside the United States. However, if there is a possibility the targets will be communicating with Americans, the government must get an "umbrella" or "blanket" court order to conduct surveillance for up to one year. In an emergency, the government could begin surveillance without a blanket order as long as it applies for court approval within seven days, and it is approved within 45 days.

There is still some question in my mind as to how the government knows who's under the "blanket" and who is not.

And, by the way, a quick prediction. The telecomm companies will most definitely get their immunity.