The new FISA Amendments Act of 2008 is not only an affront to privacy, it is a symptom of the leadership deficit currently afflicting the U.S. Congress. The bill, which passed the House last week by a landslide, makes two drastic changes to our current surveillance laws:

1. First, the bill generously grants telecommunications companies a broad immunity against financial and criminal liability for helping the U.S. government spy on domestic communications without a warrant or probable cause. There’s only one string attached: Telcoms must show that the government asked them to spy on Americans. Translation: Telcoms will get off the hook as long as they can rustle up some evidence that the government actually asked them to violate the law.

2. Second, if the bill is passed by the Senate, citizens will have no effective right to privacy in electronic communications because the government will always be able to claim that calls were intercepted in order to ward off a terrorist threat. Translation: As long as the “target” of the surveillance is reasonably believed by the government to be abroad, under this bill the NSA can intercept communications between that target and U.S. citizens without any form of judicial oversight whatsoever.

(Keep in mind that this second change is less extreme than some critics of the FISA Amendments Act of 2008 (“New Act”) acknowledge. Under the New Act, it is true that a traditional FISA warrant is not required to spy on a foreign person located abroad - even if that individual is communicating with a U.S. citizen. However, a judicial finding of probable cause will still be required to target an American person located abroad, regardless of whether interception occurs within or outside U.S. borders. This means that the New Act (i) expands the governments ability to (indirectly) spy on U.S. citizens if it can reasonably claim that the true target of the surveillance in question is a foreign party located abroad but (ii) actually restricts the government’s ability to target Americans that happen to be living or working overseas.)

What makes these changes so extreme? Consider our current surveillance regime. Whenever the U.S. government wants to intercept communications (thought to be) between a domestic source and a foreign intelligence agent outside the United States, it can petition the Foreign Intelligence Security Court (“FISC”) for a FISA warrant - either prior to implementing a wiretap or after the fact. FISC evaluates these warrant applications in a non-adversarial, secret forum, and the federal government is therefore ordinarily the only party to the proceeding. In the event of a national security emergency, the Attorney General is able to authorize electronic surveillance and then seek ex post approval from FISC. Such approval is rarely withheld. Take 2004 for example. In that year, 99% of FISA warrants were approved.

Thus, the current FISA regime provides the federal government with (a) a secret forum (b) in which it is ordinarily the only party to the proceeding (c) that can be used to retroactively endorse wiretapping at the discretion of the Attorney General. What this means in practice is that the National Security Agency (“NSA”) believes that monitoring international communications is critical to national security, it can already do so. Even if the NSA acts without first getting a FISA warrant, one can easily be obtained after surveillance has commenced.

What’s more, FISA warrants are often not required by law. For example, if the U.S. government wants to perform “vacuum cleaner” surveillance to intercept all wire communications mentioning the word ‘terrorism,’ FISA will not stand in the way, provided that the surveillance only targets the word ‘terrorism’ and does not specifically target a particular person located in the United States. FISA also places no restrictions at all on capturing wire and radio communications between two (or more) parties located outside the United States. Finally, FISA allows the government to intercept communications between foreign individual and persons located in the U.S. provided that the interception occurs on foreign soil. In a nutshell, FISA requires judicial oversight for (1) capturing domestic-to-domestic communications and (2) intercepting data within the United States that is being transmitted by a party clearly located within the U.S. to someone located outside U.S. borders.

If the old FISA was so flexible, why change it? Lay supporters of the bill may genuinely think that we really need a new surveillance infrastructure to effectively capture terrorist communications. As Patrick Radden Keefe observes at Slate, these folks think that without new legislation, “America’s intelligence capabilities will dry up, leaving the country vulnerable to attack.” Too many of us, after all, have been seduced by the spurious claim that national security is enhanced whenever the government gets additional surveillance powers. Make no mistake, this claim is demonstrably false (particularly in light of the flexibility FISA currently provides). But it is worth keeping in mind that some may earnestly hold this (groundless) view.

The real puzzle is figuring out why the bill’s supporters in Congress think overhauling FISA in this way preserves liberty or enhances national security. One plausible explanation is that the new bill is viewed as necessary to address a critical problem in gathering information about terrorist organizations like al Qaeda: Under the existing regime, the federal government could be challenged for intercepting communications on U.S. soil where one party is a U.S. citizen even if the target of the interception was actually a foreign national suspected of using or distributing information relevant to national security. Probable cause may exist vis a vis the foreign national, but not for the U.S. citizen. The new bill sidesteps this problem by allowing the government to target without restriction persons “reasonably believed to be located outside the United States to acquire foreign surveillance information” (See 702(a)). With just a few choice words the probable cause requirement vis a vis U.S. citizens disappears, thereby enabling the NSA to capture a wider range of international communications without having to bother obtaining FISA warrants. With respect to interception of this particular type of communications, the government, under 702(g) of the New Act, is at liberty to use any particular switching facility or employ a wide range of surveillance measures to capture the data it believes to be relevant to national security. This, my friends, is what the New Act is all about - reducing the “regulatory friction” the NSA and other government agencies have to deal with when conducting foreign intelligence surveillance.

There are a lot of problems with this justification of the New Act. For starters, it doesn’t explain why the telcoms should receive immunity for deliberately violating a panoply of criminal and civil laws. Moreover, the New Act, much like the current FISA regime, is not only extremely complex (and therefore hard to apply), it also makes the availability of warrantless surveillance turn on where the government thinks the target is located. In the digital world, where well-funded terrorists are surely able to use technological trickery to falsify their location, why is geography even relevant? The New Act, in other words, doesn’t necessarily make it easier for the U.S. government to spy on high-value targets. But isn’t that precisely what a meaningful overhaul of FISA should do?