FISA-vis Surveillance law

That’s a funny title, get off the floor from laughing. If you don’t get it, keep reading

Electronic surveillance in the US and its constitutionality are big in the news at the moment with the revelations about Prism, the NSA/FBI/GCHQ and the implications for the ‘land of the free’ and the so called ‘snoopers’ charter’ currently going through the UK Parliament. I’ll hopefully blog about that soon but I thought I should at least unpack some background first. I’ve been working on this blog for 3 days and last night heard PM on Radio 4 do the same thing, so stop reading this and listen to Eddie Mair, who does a much better job (http://www.bbc.co.uk/programmes/b02mfzpg from around 6.40)

Surveillance in the US has been an issue (as in other countries) since after the war with the spread of phone usage making the government worry about what its citizens and others might be planning on their soil. Up until the mid-60s case law in the US revolved around understandings of the Constitution alone as there were no other laws to consult. Therefore the Supreme Court of the United States (Scotus) ruled that electronic surveillance was permissible under the Constitution so long as the 4^th, 5^th and 6^th Amendments were followed (outlining the need for a warrant before and unreasonable search, the prevention of government interference in legal cases and ‘the right to a speedy and public trial’ including the concept of an impartial jury and the need for witnesses).

All this was however blown out of the water (hah!) by the Watergate scandal, where President Richard Nixon was found to have used government money and employees to spy on his opponents. Increasingly paranoid and high on a cocktail of drugs Nixon approved of raids on Democrat offices at the Watergate hotel. When the raiders were arrested it led to the revelation of other crimes and, crucially, that Nixon had taped himself giving orders to spy on opponents whilst sat in the Oval Office. Forced into a corner he had created, Nixon resigned the Presidency and was succeeded by Gerald Ford, famously the only man to hold the Presidency without running on the ticket in an election.

Having discovered that a President could be comfortable with illegal activity, Senator Ted Kennedy and others sponsored what became the Foreign Intelligence Surveillance Act (FISA – now do you get the title of this piece?) when signed into law by Jimmy Carter (the 1970’s was not a good decade for US presidential election results). FISA permits a government agency to tap the phonelines of a person suspected of being a threat to the US with either the permission of the President via the Attorney-General, which only lasts for a year, or with a court order from a special FISA court (FISC), which lasts as long as necessary. These checks were put in place over fears arising from the Fourth Amendment in particular.

Electronic surveillance again came under scrutiny after 9/11, leading to the passing of the PATRIOT Act 2001 (yes, it’s a witty acronym), one of the most controversial pieces of legislation in recent US history. Amendments were tabled and passed enforcing the need for certain parts of the Act to need assessment and renewal by Congress each year but on the whole the Act allowed security and law enforcement agencies greater freedom to investigate and obtain evidence without the need for judicial oversight. This meant restriction’s surrounding wire-tapping and the recording of conversations were weakened. These changes were reinforced by amendments to FISA passed in 2008 and an extension to the PATRIOT Act signed by President Obama in 2011.

Now we come to the events revealed by the Washington Post and the Guardian last week. On Wednesday the US National Security Agency (NSA) was revealed to be tracking the dialler and receiver of almost any phonecall originating on US soil with the co-operation of several major phone companies due to a previously secret court order provided by the FISC. On Thursday the FBI was revealed to have been using information companies such as Google and Facebook to access information on, and even photographs of, any foreign national on US soil. By Friday the controversy had reached the UK and the charge that the Government Communications Headquarters (GCHQ) had been aware of the project (known as Prism) and had even accessed the information that had been gleaned from it.

With the scandal now affecting the UK, the Foreign Secretary William Hague gave a statement in the Commons that said that any implication of illegality by GCHQ was ‘fanciful’ and ‘nonsense’. He outlined the legal framework within which the intelligence services work and said that all ‘warrants’ (surveillance applications) had to be approved by ‘a senior minister’ and were subject to checks by the Intelligence and Security Committee. Hague alleges that this means the UK has 'one of the strongest systems of checks and balances and democratic accountability for secret intelligence anywhere in the world' (http://www.guardian.co.uk/world/2013/jun/10/william-hague-spying-scandal-nsa-statement).

Similar moves to bring the interactions of the intelligence services to account are now being attempted in the US. Secretary of Defense Hagel has launched a review and the senior Senator for Oregon has submitted a draft bill proposing changes and additional oversight to matters regarding FISA/FISC and the PATRIOT Act.

All this sounds impressive but it comes back to what had to be faced in the wake of Watergate - intelligence operations which are approved in secret by politicians. There may never be a perfect solution to these problems but it seems like the leaks that began last week are going to keep coming, so long as Edward Snowden resurfaces soon. As such the way politicians on both sides of the Atlantic respond to the issues that are raised will be incredibly important. I'll hopefully be writing a blog post on some of what they've said so far in the next few days