Apparently, the bill in question is not entirely new; it's a revision of S. 2453, the National Security Surveillance Act of 2006 that is not on the official sites yet.
This link is a pdf of the revised wording, and this is
a link to the summary. I have links to news articles and commentary on this at
my LJ here, and some comments on the summary and text of the revision below.
Here are the major changes from the previous bill (quoting the summary):
The NSSA updates the definitions of "electronic communication" and "electronic surveillance" to include technologies such as cell phones and the Internet that did not exist in 1978. The NSSA coins the term "electronic surveillance program" to denote programs such as the Terrorist Surveillance Program.
Section 4. Jurisdiction.
The NSSA grants the Foreign Intelligence Surveillance Court jurisdiction to review surveillance on a program-wide level. In the event the court declines to authorize a program, the Attorney General may modify and resubmit the program to the Foreign Intelligence Court of Review.
This section also allows all lawsuits challenging an electronic surveillance program to be channeled to the FISA Court of Review, and empowers the FISA Court of Review to conduct discovery where needed.
Section 5. Applications for Approval of Program.
To obtain approval of an electronic surveillance program, the Attorney General or his designee must submit
(i) his legal basis for concluding that the program is constitutional;
(ii) the proposed operational and minimization procedures; and
(iii) an explanation of how the program is reasonably designed to ensure that the communications intercepted involve a terrorist, agent of a terrorist, or someone reasonably believed to have communicated or associated with a terrorist.
Note that there is no recourse to a civil court for someone who is spied on.
"Communicated or associated with a terrorist" could include bus drivers, hotel clerks, grocery cashiers, landlords, librarians or anyone else someone might run into on their daily travels. Tell me, who do you stand next to in the elevator when you go to lunch? Who's at the next table in the diner? A person sitting near you on the subway, who dropped an umbrella that you handed back -- does this count?
Section 6. Approval of Programs.
The Foreign Intelligence Surveillance Court must
(i) assess the program's constitutionality;
(ii) find that the program is reasonably designed to ensure that the communications intercepted will include a terrorist, agent of a terrorist, or person who has had communication with a terrorist or agent of a terrorist; and (iii) verify that the government has complied with the other requirements of the bill.
Who, exactly, is an agent of a terrorist? Are we talking about someone's cousin or mother or kid brother? Or a publicist?
Section 7. Congressional Oversight.
Every six months, the Attorney General must provide all members of the House and Senate Intelligence Committees with information on any electronic surveillance programs in effect.
"Information" is pretty vague, isn't it? "Hi, we have some electronic surveillance going on. Bye."
Section 8. Allows seven days, instead of 72 hours, to obtain authorization in an emergency.
Why extend the time needed for authorization in an emergency? This makes no sense.
Section 9. Section 9 confirms that the bill does not unconstitutionally retract any constitutional authority the President has to conduct collect information from foreign nations and their agents.
Section 9 also increases the criminal penalties against officials who knowingly misuse foreign intelligence information.
Oh, that's a clever way to get around the constitutionality of the entire question. Assume that he has whatever he wants to have, then say that this doesn't take anything away from him.
Section 10. Modernizes FISA by
(i) updating the definitions of "electronic communication" and "electronic surveillance" to include technologies such as cell phones and the Internet that did not exist in 1978;
(ii) allows the FISC to authorize emergency surveillance as long as the court deems necessary, but no longer than one year;
(iii) allows officials other than the Attorney General to begin emergency surveillance provided that the attorney General or his designee obtains FISA approval to continue that surveillance within seven days;
(iv) requires the Executive Branch to conduct a feasibility study to develop and implement a document management system for classified information; and
(v) creates a new criminal penalty for any official who "discloses or uses information obtained under color of law by electronic surveillance."
So, although the Attorney General is supposed to be the only one submitting names (and we won't find out whose names, and neither will Congress, or how many people would be watched or why or for how long), that's not accurate -- it could be a lot of other people as long as someone signs off on it within a week. That's an ungodly broad authorization.
Of course they're creating a document management system -- how else are they going to deal with the humongous amount of data they expect to get from us?
A few quotes from the rewrite of S. 2453 itself. First, from section 3:
"(5) the term `electronic surveillance program' means a program to engage in electronic tracking--
5 "(A) that has as a significant purpose the gathering of foreign intelligence
6 information;
7 "(B) where it is not technically feasible to name every person or address
8 every location to be subjected to electronic tracking;
9 "(C) where effective gathering of foreign intelligence information requires
10 the flexibility to begin electronic tracking immediately after learning of suspect
11 activity; and
12 "(D) where effective gathering of foreign intelligence information requires
13 an extended period of electronic tracking;
and
"(2) REAUTHORIZATION.--The Foreign Intelligence Surveillance Court shall have jurisdiction to reauthorize an electronic surveillance program for a period of time not
5 longer than such court determines to be reasonable.
6 "(3) RESUBMISSION OR APPEAL.--In the event that the Foreign Intelligence
7 Surveillance Court refuses to approve an application under this subsection, the
8 Attorney General may submit a new application. There shall be no limit on the
9 number of times the Attorney General may seek approval of an electronic
10 surveillance program. Alternatively, the Attorney General may appeal the decision
11 of the Foreign Intelligence Surveillance Court to the Foreign Intelligence
12 Surveillance Court of Review.
Also from Section 12:
"(l) `Surveillance device' means any means a device that effects surveillance but does not include a device that extracts or analyzes information from data that have already 13 been acquired by the U.S. government by lawful means..";
And further:
13 "(b) The Attorney General is also authorized to deliver to a provider of any electronic
23 communication service, landlord, custodian, or other person (including any officer,
24 employee, agent, or other specified person thereof) who has access to electronic
25 communications, either as they are transmitted or while they are stored or equipment that
26 is being or may be used to transmit or store such communications, a certificate requiring
27 that such person or persons furnish any information, facilities, or technical assistance to
28 an official authorized by the President to engage in electronic surveillance for foreign
29 intelligence purposes, for periods of up to 1 year if the Attorney General certifies in
30 writing to the carrier under oath that such provision of information, facilities, or technical
31 assistance does not constitute electronic surveillance as defined in section 101(f).
32 "(c) With respect to electronic surveillance or the furnishing of any information,
33 facilities, or technical assistance authorized by this section, the Attorney General may
34 direct a provider of any electronic communication service, landlord, custodian or other
35 person (including any officer, employee, agent, or other specified person thereof) who
36 has access to electronic communications, either as they are transmitted or while they are
37 stored or equipment that is being or may be used to transmit or store such
38 communications to--
39 "(1) furnish all information, facilities, or technical assistance necessary to
40 accomplish the electronic surveillance in such a manner as will protect its secrecy
41 and produce a minimum of interference with the services that such provider of any
42 electronic communication service, landlord, custodian, or other person is providing
43 its customers; and
1 "(2) maintain under security procedures approved by the Attorney General and
2 the Director of National Intelligence any records concerning the surveillance or the
3 aid furnished which such provider of any electronic communication service,
4 landlord, custodian, or other person wishes to retain. 5 The Government shall compensate, at the prevailing rate, such provider of any electronic
6 communication service, landlord, custodian, or other person for furnishing such aid.
So, the government is going to pay landlords and networks for spying on their tenants and customers? I can see where that could get out of hand very easily. And even if that person were friendly and inclined to tell you that you're being spied on, he can't because he'd be considered to be engaging in espionage, right?
As for the definition of physical search:
"(5) `Physical search' means any physical intrusion within the United States into
30 premises or property (including examination of the interior of property by technical
31 means) that is intended to result in a seizure, reproduction, inspection, or alteration
32 of information, material, or property, under circumstances in which a person has a
33 reasonable expectation of privacy and a warrant would be required for law
34 enforcement purposes, but does not include activities conducted in accordance with
35 sections 102 or 105."
In other words, if we're doing it under this piece of legislation, we don't need a warrant, it doesn't count as physical search, your privacy is toast and you can't do anything about it.
Read it for yourself, and see what you think.