Set aside the telecom immunity dispute for a moment.
What restrictions does the new law impose to protect the privacy of American citizens? Get ready for a depressing ride. Here is a link to the full bill. Under this legislation, the FISA court gets to review only the general procedures that the Attorney General and the Director of National Intelligence have devised to minimize the risk that a search supposedly targeted at non-citizens abroad will scoop up the private information of American citizens. More on the flip.
Section 702 of the bill has the offending provisions I am discussing here.
First, the Attorney General and the Director of National Intelligence devise these minimization procedures to limit the likelihood that Americans' information will be obtained, and guidelines for ensuring that the minimization procedures are actually being followed.
Then the FISA court gets to review these procedures. Not how they actually work in practice, not whose information was scooped up, just whether or not the minimization procedures seem good enough. And most interestingly, the court does not get to review the guidelines (section 702, subsection f) that supposedly ensure that the minimization procedures will be followed.
Who gets to track how well the intelligence agencies are following the guidelines that the Attorney General and the Director of National Intelligence have adopted? Only the heads, and the Inspectors General, of agencies that conduct intelligence-gathering under the Act.
And who do the Inspectors General report to? The Attorney General and the Director of National Intelligence. And then, these "assessments" are passed on to the Intelligence and Judiciary committees. The FISA court will not see the IG reports. All the Congressional committess will see is how many certifications were issued, how many Americans were inadvertently surveilled.
Three blockquotes from section 702 follow. First is section 702, subsections d, e, and f, that lay out the manner in which the AG and the DNI will develop minimization procedures and compliance guidelines. Second blockquote has judicial review language, from section 702, subsection i. Third blockquote is the report by the Inspectors General, subsection l.
This is not all that is wrong with the bill. The ACLU has more, if you have the heart.
For now, read and weep:
`(d) Targeting Procedures-
`(1) REQUIREMENT TO ADOPT- The Attorney General, in consultation with the Director of National Intelligence, shall adopt targeting procedures that are reasonably designed to--
`(A) ensure that any acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be located outside the United States; and
`(B) prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.
`(2) JUDICIAL REVIEW- The procedures adopted in accordance with paragraph (1) shall be subject to judicial review pursuant to subsection (i).
`(e) Minimization Procedures-
`(1) REQUIREMENT TO ADOPT- The Attorney General, in consultation with the Director of National Intelligence, shall adopt minimization procedures that meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate, for acquisitions authorized under subsection (a).
`(2) JUDICIAL REVIEW- The minimization procedures adopted in accordance with paragraph (1) shall be subject to judicial review pursuant to subsection (i).
`(f) Guidelines for Compliance With Limitations-
`(1) REQUIREMENT TO ADOPT- The Attorney General, in consultation with the Director of National Intelligence, shall adopt guidelines to ensure--
`(A) compliance with the limitations in subsection (b); and
`(B) that an application for a court order is filed as required by this Act.
(i) Judicial Review of Certifications and Procedures-
`(1) IN GENERAL-
`(A) REVIEW BY THE FOREIGN INTELLIGENCE SURVEILLANCE COURT- The Foreign Intelligence Surveillance Court shall have jurisdiction to review a certification submitted in accordance with subsection (g) and the targeting and minimization procedures adopted in accordance with subsections (d) and (e)[what about the guidelines developed under (f), Steny?], and amendments to such certification or such procedures.
[snip] `
`(2) REVIEW- The Court shall review the following:
`(A) CERTIFICATION- A certification submitted in accordance with subsection (g) to determine whether the certification contains all the required elements.
`(B) TARGETING PROCEDURES- The targeting procedures adopted in accordance with subsection (d) to assess whether the procedures are reasonably designed to--
`(i) ensure that an acquisition authorized under subsection (a) is limited to targeting persons reasonably believed to be located outside the United States; and
`(ii) prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.
`(C) MINIMIZATION PROCEDURES- The minimization procedures adopted in accordance with subsection (e) to assess whether such procedures meet the definition of minimization procedures under section 101(h) or section 301(4), as appropriate.
(l) Assessments and Reviews-
`(1) SEMIANNUAL ASSESSMENT- Not less frequently than once every 6 months, the Attorney General and Director of National Intelligence shall assess compliance with the targeting and minimization procedures adopted in accordance with subsections (d) and (e) and the guidelines adopted in accordance with subsection (f) and shall submit each assessment to--
`(A) the Foreign Intelligence Surveillance Court; and
`(B) consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution--
`(i) the congressional intelligence committees; and
`(ii) the Committees on the Judiciary of the House of Representatives and the Senate.
`(2) AGENCY ASSESSMENT- The Inspector General of the Department of Justice and the Inspector General of each element of the intelligence community authorized to acquire foreign intelligence information under subsection (a), with respect to the department or element of such Inspector General--
`(A) are authorized to review compliance with the targeting and minimization procedures adopted in accordance with subsections (d) and (e) and the guidelines adopted in accordance with subsection (f);
`(B) with respect to acquisitions authorized under subsection (a), shall review the number of disseminated intelligence reports containing a reference to a United States-person identity and the number of United States-person identities subsequently disseminated by the element concerned in response to requests for identities that were not referred to by name or title in the original reporting;
`(C) with respect to acquisitions authorized under subsection (a), shall review the number of targets that were later determined to be located in the United States and, to the extent possible, whether communications of such targets were reviewed; and
`(D) shall provide each such review to--
`(i) the Attorney General;
`(ii) the Director of National Intelligence; and
`(iii) consistent with the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution--
`(I) the congressional intelligence committees; and
`(II) the Committees on the Judiciary of the House of Representatives and the Senate.