The current legislative and oversight activity with respect to electronic surveillance under Foreign Intelligence Surveillance Act (FISA) has drawn national attention to several overarching issues. This report briefly outlines three such issues and touches upon some of the perspectives reflected in the ongoing debate. These issues include the inherent and often dynamic tension between national security and civil liberties, particularly rights of privacy and free speech; the need identified by the Director of National Intelligence (DNI), Admiral Mike McConnell, for the Intelligence Community to be able to efficiently and effectively collect foreign intelligence information from the communications of foreign persons located outside the United States in a changing, fast paced, and technologically sophisticated international environment, and the differing approaches suggested to meet this need; and limitations of liability for those electronic communication service providers who furnish aid to the federal government in its foreign intelligence collection. Two constitutional provisions, in particular, are implicated in this debate — the Fourth and First Amendments.
Congress currently has before it several bills that, if enacted, would amend certain FISA provisions, among them H.R. 3733, which was passed by the House on November 15, 2007; S. 2248 (as reported out of the Senate Select Committee on Intelligence); and S. 2248 (as reported out of the Senate Judiciary Committee with an amendment in the nature of a substitute). Two other bills regarding FISA were introduced by Senator Reid on December 10, 2007, and have been placed on the Senate’s legislative calendar include S. 2440 and S. 2441. S. 2402, introduced by Senator Specter on December 3, 2007, was referred to the Senate Judiciary Committee. In Committee markup on December 13, 2007, an amendment in the nature of a substitute to S. 2402 was adopted by unanimous consent. Then, by a vote of 5-13, the Committee rejected S. 2402, as amended. The proposal would have permitted substitution of the government for electronic communication service providers in law suits where certain criteria were met.
