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House Panel Approves Electronic Surveillance Bill
narramissic writes "A U.S. House of Representatives Committee has approved the Electronic Modernization Surveillance Act, a controversial bill that would broaden the U.S. government's ability to conduct electronic surveillance on U.S. residents by making it easier for federal law enforcement officials to get court-issued warrants. The full House is expected to vote on the bill by the end of the month." From the article: "Republicans praised the bill, saying it will help the U.S. government fight terrorism. The bill will provide the U.S. intelligence agencies 'greater agility and flexibility as they try to thwart our determined and dangerous terrorist enemies,' Committee Chairman James Sensenbrenner, a Wisconsin Republican, said in a statement. The full House is expected to vote on the bill by the end of the month. The committee's action comes after U.S. President George Bush called on Congress to approve a controversial electronic surveillance program conducted by the U.S. National Security Agency (NSA). "
Somewhat. But this is a vast expansion.
No. It does, as a minor provision, extend the time limit (there have been characterizations that it extends the current 72-hour limit for foreign intelligence surveillance while seeking a warrant to 90 days—this is false. It extends that limit only to 120 hours (from 3 days to 5 days.) The 90-day limit is something completely different, see below.)
But it does a lot more, including (and this is not an exhaustive list):
It expands the definition of an "agent of a foreign power" to include not only actual agents of foreign powers, but also any person "reasonably expected to transmit or receive foreign intelligence information".
It also narrows the scope of the limitations on government power in FISA: currently, it is unlawful to conduct surveillance except under its rules against any US person who is within the United States. EMSA would make it only illegal if those conducting the surveillance reasonably believe the subject is within the United States. So if they don't believe you are in the United States when they target you, or if that belief is unreasonable, their action is not prohibited by the law any more.
EMSA would also further narrow the scope of the limitations on government surveillance power in FISA by defining "surveillance" that it restricts to only include the acquisition of the content of communications; under current law that is included, but so is the installation or use of an electronic, mechanical, or other surveillance device for "monitoring to acquire information" of any kind. As a concrete example of the effect, a camera planted inside a residence or other private area to see what went on and who was present at various times would probably not capture the "content of communication", and would be entirely unregulated under the changes proposed in EMSA, but is restricted under the current law.
It also entirely eliminates (not merely extends the timeline) the rule that, without a court order having been obtained, communications deliberately or incidentally captured of a US person cannot be retained, disseminated, etc., beyond a 72-hour period.
It expands the scope of surveillance that requires no warrant (retroactive or otherwise) to include not only surveillance of communications exclusively between foreign powers (including their agents), but to communication of a foreign power or an agent of a foreign power, and strikes the limitation that such warrantless surveillance may only be used when "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party", (and, remember from above, it expands the definition of "agent of a foreign power" to include people who are expected to send or receive foreign intelligence information, whether or not they are in fact agents of foreign powers; as one example of the impact of the effect of these two provisions together, since reporters covering foreign affairs beats can be "reasonably expected" to sometimes receive or send "foreign intelligence information", that means that, under EMSA, any communication of any such reporter with any other person for any purpose can be monitored without any restriction of any kind.)
It expands the ability of the government to order private parties to assist it in performing surveillance: this is curerntly restricted only to communications common carriers, and would be expanded to "any person with authorized access to electronic communications or equipment used to transmit or store electronic communications".
It deletes the requirement that warrant applications for surveillance include "a d