Electronic Surveillance Modernization Act, as Passed by the House of Representatives

Publication Date: January 2007

Publisher: Library of Congress. Congressional Research Service

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Research Area: Military and defense

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Abstract:

After the New York Times reported that the National Security Agency (NSA) was conducting a secret Terrorist Surveillance Program (TSP), a national debate emerged about whether the program was subject to the Foreign Intelligence Surveillance Act (FISA), whether the Administration needed additional authority to continue the program, and how and whether Congress should oversee the program. The TSP involved surveillance without a warrant or court order under FISA of international communications of persons within the United States, where one party to the communication is believed to be a member of al Qaeda, affiliated with al Qaeda, a member of an organization affiliated with al Qaeda, or working in support of al Qaeda. The Bush Administration asserted constitutional and statutory support for its program. While describing electronic surveillance under FISA as a valuable tool in combating terrorism, the Administration argued that it lacked the speed and agility to deal with such terrorists or terrorist groups. In a January 17, 2007, letter to Chairman Leahy and Senator Specter of the Senate Judiciary Committee, Attorney General Gonzales advised them that, on January 10, 2007, a Foreign Intelligence Surveillance Court (FISC) judge "issued orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization." In light of these orders, which "will allow the necessary speed and agility," he stated that all surveillance previously occurring under the TSP will now be conducted subject to the approval of the FISC. He indicated further that the President has determined not to reauthorize the TSP when the current authorization expires.

The NSA program has been challenged on legal and constitutional grounds. On August 17, 2006, in American Civil Liberties Union v. National Security Agency, Case No. 06-CV-10204 (E.D. Mich. August 17, 2006), Judge Taylor held the program unconstitutional and granted a permanent injunction of the Terrorist Surveillance Program. The decision has been appealed to the U.S. Court of Appeals for the Sixth Circuit. On October 4, 2006, the Sixth Circuit granted a motion staying Judge Taylor's judgment and permanent injunction pending appeal.

The Electronic Surveillance Modernization Act, H.R. 5825, 109th Congress, was one of a number of bills introduced in the Senate and the House of Representatives addressing various aspects of the TSP and a variety of approaches to electronic surveillance of terrorists and those affiliated with them. This bill was designed to enhance flexibility in electronic surveillance to acquire foreign intelligence information, while requiring increased reporting and congressional oversight of these activities. The measure was introduced on July 18, 2006, and passed the House on September 28, 2006. This report summarizes the bill as passed by the House and analyzes the potential impact of its provisions were they to become law. The 110th Congress may wish to contemplate similar or different approaches to these issues, or may choose to forego legislation in light of the new FISC orders and the anticipated termination of the TSP, while continuing congressional oversight. This report will not be updated.