RESTORE Act (2007 FISA bill)

Background
On August 3 & 4, 2007 the Senate and House, respectively, passed the Protect America Act of 2007 (PAA) to amend the Foreign Intelligence Surveillance Act (FISA) of 1978. However, the PAA was only authorized for 180 days and would expire in February 2008, requiring further congressional action to adopt FISA reforms. Prior to the Protect America Act, no prior court permission was required for the federal government to spy on communications between foreign targets of surveillance, even if the communications passed through the U.S, but a warrant was required to spy on communications between foreign targets and Americans.

Current status
The House version of the bill (H.R. 3773) was approved on November 15, 2007. There are two versions (see below) of the act (S. 2248) in the Senate. The Senate resumed debate on the measure on January 23, 2008. Chris Dodd had threatened to filibuster the bill if it included telecom immunity (see below), a measure backed by President Bush, Republicans, and some Democrats. The Senate defeated the Judiciary version of the bill &mdash; which did not include immunity and strengthened court oversight of the nation's intelligence community &mdash; by a 60-34 margin.

On January 28, the Senate defeated a Republican cloture motion on the Intelligence version, a move that would have cut off debate on several amendments to the bill. The Senate also defeated a cloture motion, sponsored by Sen. Majority Leader Harry Reid, to extend the Protect America Act for 30 days. On January 29, the Senate and House approved a 15-day extension of the Protect America Act.

Initial House version passed in November 2007


Bill summary
The "Respected Electronic Surveillance That is Overseen, Reviewed and Effective (RESTORE) Act" was introduced on October 9, 2007 by Majority Leader Steny Hoyer (D-Md.) and was written by Judiciary Chairman John Conyers (D-Mich.) and Intelligence Chairman Silvestre Reyes (D-Texas). The initial version of the RESTORE Act, which would replace all the provisions of the Protect America Act, would:


 * Allow warrantless spying on foreign-to-foreign communication that passes through the U.S.
 * Only foreign-related surveillance where at least one end of the communication was in the U.S. would require court involvement.


 * Tighten warrant requirements for spying on foreign-to-American communications.
 * The bill would create a new type of "blanket" or basket warrant to spy on communications between foreign targets and Americans, which could last up to one year and apply to communications between entire foreign groups, organizations or lists of targets and anyone in the U.S. After obtaining the order from the Foreign Intelligence Surveillance Court, The U.S. Attorney General (US AG) and Director of National Intelligence (DNI) could then authorize wiretapping on those targets without obtaining individual probable-cause warrants from the court. The government would also be allowed to begin this surveillance without a blanket order and retroactively apply for it within seven days.
 * Several restrictions were placed on the basket warrants. The US AG and DNI would have to certify that the purpose of the surveillance was to gather intelligence on foreign targets, even if spying on Americans was involved. The court would also review the targetting procedures and verify that information on non-suspect Americans was deleted. To prevent the government from "reverse targeting" - when the more lax requirements for spying on foreign targets are exploited to spy on an American by listening in on their communications with foreigners - the AG and DNI would also have to specify how much communications with Americans would be collected before a regular warrant was required. The would also have to tell the court how the collection of data would be minimized.
 * In contrast, the Protect America Act largely cut out the court and allowed the government to spy on any communications with Americans as long as it was "reasonably believed" to concern a foreign target or surveillance. Previously the court had been required to approve all foreign intelligence gathering that took place within the U.S.


 * Require oversight of foreign intelligence gathering by the Department of Justice and Congress.
 * The bill required quarterly audits of the surveillance program by the U.S. Department of Justice's inspector general. The bill would also expire on Dec. 31, 2009, giving Congress time to review the new procedures.


 * Restrict the foreign intelligence surveillance program to threats including terrorism and sabotage.


 * Expressly prohibit warrantless physical searches inside the U.S.


 * NOT provide immunity for telecom companies who broke the law at the request of the Bush admin.
 * The bill does not provide retroactive immunity for the telecommunications companies that participated in the Bush administration’s warrantless Terrorist Surveillance Program (TSP), a key demand by the White House and many congressional Republicans. Hoyer said such immunity would likely be the price of getting President Bush to sign the bill and did not rule out a compromise on the issue. He said House Democrats would not support such immunity measures while the administration continued to withhold key materials on the program, including legal opinions. About 40 lawsuits were pending that name telecommunications companies for alleged violations of wiretapping laws.

House Democratic leaders pull bill from floor
House Democratic leaders pulled the bill from the floor on October 17, 2007 because they lacked the votes to overcome Republican opponents and parliamentary maneuvers. Conservative Democrats feared Republican charges that the Democratic bill gave too many rights to suspected terrorists. House Republican leaders offered a motion that would have sent the bill back to the House Intelligence and Judiciary Committees with the requirement that they add language specifying that nothing in the measure would apply to surveilling the communications of Osama bin Laden, al-Qaeda, or other foreign terrorist organizations. If approved, such a motion would have restarted the legislative process, effectively killing the bill by delay. It was the first time Democrats withdrew a major bill from consideration before a scheduled vote since they took control of the House.

House passes bill in November 2006


On November 15, 2007, the House approved its version of the RESTORE Act, by a margin of 227-189. The vote tally fell mostly along party lines. The White House treatened to veto the bill, since it lacked telecom immunity.

Senate version


Bill summary
The Senate Intelligence and Judiciary committees separately approved two versions of the RESTORE Act.

Intelligence committee version
The initial Senate version gave some telecommunications companies immunity from about 40 pending lawsuits charging them with violating privacy and constitutional rights by aiding the administration’s warrantless surveillance program, a key concession the administration and companies heavily lobbied for. The bill also allowed a court to dismiss the lawsuits if the attorney general certified to the court that either the carrier did not aid the government or the carrier’s assistance was related to an intelligence activity authorized by the president between September 11, 2001, and January 17, 2007, and it was designed to prevent or detect a terrorist attack.

It also imposed more restrictions than the Protect America Act.

The bill further said that certification related to intelligence activity must say the authorization was in written form from the attorney general or an intelligence agency head, which indicated that the activity was authorized by the president and determined to be lawful. The certification could be presented in secret, with the court never disclosing which of the two cases applied.

Judiciary committee version
After the Intelligence Committee reported the bill, it was sent to the Judiciary Committee, where a different version was approved. The Judiciary version's most striking difference was the exclusion of telecom immunity. The legislation did differ on a number of other areas as well: it prohibits the collection of international telecom traffic that is not targeted at a specific individual. It would also require the FISA court to review cases when an American's communications activities are sought as part of a broader effort, regardless of whether the individual is the target of an investigation. The Judiciary also required an audit of surveillance conducted by the National Security Agency, which may have been illegal.

Intelligence committee passes bill
The Senate Intelligence Committee approved its bill governing foreign intelligence surveillance conducted inside the United States on October 18, 2007. The bill was passed by 13 to 2 and would require the Foreign Intelligence Surveillance Court to approve the government’s procedures for deciding who would be the subject of warrantless surveillance.

Intelligence-Judiciary disagreements
Intelligence Committee Chairman John D. Rockefeller IV (D-W.Va.) and ranking member Christopher S. Bond (R-Mo.) said the bill allowed for necessary intelligence collection while maintaining privacy protections. Aides to Senate Democratic leaders said the bill was expected to be passed by late November. However, Sen. Ron Wyden (D-Ore.), one of two committee members opposed to the bill for its inclusion of telecom immunity, put forward an amendment that required the government to obtain a warrant when targeting an American overseas for surveillance. White House spokesman Tony Fratto said “We certainly could not accept it.” Bond noted the provision was “problematic” and that passage of the bill could be difficult if the amendment was not modified.

Democrats on the Senate Judiciary Committee, which also had to approve the bill, said they would not consider giving the companies immunity unless the committee first gained access to the legal documents underpinning the wiretapping program. Sen. Christopher J. Dodd (D-Conn.) declared on October 18, 2007 that he intended to put a hold on the bill to specifically block the immunity provision.Chairman Patrick Leahy (D-Vt.) condemned Intelligence Committee Democrats for making the deal with the White House, warning that “the Intelligence Committee is about to cave on this.” Sen. Dianne Feinstein (D-Calif.), however, who sits on both the Senate Intelligence and Judiciary Committees said she would likely support it as a bipartisan bill. “I’m absolutely convinced that the only way we can legislate on this is on a bipartisan basis. This bill so far is bipartisan – that’s good news,” said Feinstein.

In the House, Democratic leaders said they were considering bringing their own version of the bill to the floor without the immunity provision, possibly the next week, after not being able to overcome a Republican parliamentary maneuver.

Telecom executives contributed to chairman's campaign
Beginning in March, executives from AT&T and Verizon contributed more than $42,000 to Rockefeller's campaign. The contributions came from more than 50 executives at the two companies. Campaign finance reports show that, prior to the spring contributions, AT&T and Verizon executives did not give heavily to Rockefeller's campaign.

Rockefeller denied the contributions influenced his decision to seek retroactive immunity for telecom companies.

Judiciary committee passes different version of bill
Leaders of the Judiciary Committee accused the White House of allowing the Senate Intelligence Committee to review documents on the warrantless surveillance program in return for agreeing that telecommunications companies should get immunity from lawsuits. Chairman Leahy and ranking member Arlen Specter (R-Pa.) said any such agreement would be “unacceptable.” Both demanded that the documents provided to the Intelligence Committee also be turned over to the Judiciary Committee, which is now considering the bill.

White House press secretary Dana Perino said Intelligence Chairman Rockefeller and ranking member Bond’s staff “showed a willingness” to include immunity in the legislation. “Because they were willing to do that, we were willing to show them some of the documents that they asked to see.”

An Intelligence Committee aide said the immunity decision was based not on a determination of the program’s legality but on the members having previously reviewed written requests sent by the government to the carriers. “But we felt it was an important principle to not allow the administration to deprive the committee of the full panoply of documents before they proceeded to markup,” said the aide.

Sen. Russell Feingold (D-Wis.), a member of both the Intelligence and Judiciary Committees, said the documents revealed the NSA program was illegal. Feingold voted against the bill and said the documents revealed “the absence of a legitimate justification under the law” for the program. Sen. Ben Nelson (D-Fla.), a member of the Intelligence Committee, said the committee was not given enough time to review the documents and that he tried to strip the immunity provision from the bill. Nelson’s amendment failed and he said he was “favorably disposed” toward carriers, but did not want to stop lawsuits aimed at finding the truth of the program’s legality.

Judiciary committee senators shown surveillance docs
The White House allowed the Judiciary Committee leaders to see documents on the secret surveillance program on October 25, 2007. In a telephone conversation Fred Fielding, White House counsel, reportedly told Chairman Leahy and ranking member Specter that the two of them could see relevant documents before considering the bill to overhaul FISA, although the White House did not say whether the rest of the committee or the Senate leadership may see the documents. Additionally, the White House did not specify which documents the committee leaders could see or if they were the same ones provided to the Intelligence Committee. Judiciary Committee Democrats had previously said they would not promise to support immunity even if the White House handed over all the documents.

Judiciary heads reluctant on immunity
On October 31, 2007 Leahy and Specter expressed reluctance to granting blanket immunity to telecommunications carriers sued for assisting the government’s warrantless surveillance program. A day after the committee was given access to some of the documents they demanded before considering such legislation Leahy said he had a "grave concern" about the immunity. He said that such activities seemed to be "in violation of the privacy rights of Americans and of federal domestic surveillance law" Leahy said, while noting he was still “carefully considering” what was in the documents.

Leahy further said immunity "is designed to shield this administration from accountability for conducting surveillance outside the law." Dismissing the lawsuits against the telecommunications companies would eliminate "perhaps the only avenue" for "an honest assessment" of the legality of the warrantless program, he said. Specter agreed, saying the "courts ought not to be closed" to such lawsuits. "If, at this late date, the Congress bails out whatever was done before – and we can’t even discuss what has been done – that is just an open invitation for this kind of conduct in the future," Specter said. Although Specter noted that he thinks the carriers "have a strong, equitable case," he favored indemnification, in which case the government would assume financial penalties.

Immunity was one of two issues Sen. Dianne Feinstein (D-Calif.) said she had with the bill, suggesting that an alternative could be limiting damages. She noted that the lawsuits could cost the carriers upwards of $30 billion in penalties, a problem if taxpayers were to pay the cost.

Specter offers immunity compromise
It was reported on November 8, 2007 that Specter was drafting a compromise to resolve the issue of providing retroactive immunity to telecommunications companies allegedly involved in the administration’s wiretapping program. Specter planned to offer an amendment to the bill that would make the federal government, instead of the phone companies, the defendant in about 40 pending lawsuits.

“I think it’s very important that the courthouse not be closed so there can be a judicial determination to see if there have been any violations of privacy rights. I think the telephone companies were good citizens, and should not suffer from what they did. And my idea is to have the government substituted as the party,” Specter said.

Responses to Specter’s plan were mixed. Leahy said "So we would have the taxpayers pay the cost of the Bush administration breaking the law? Interesting concept, I’ll look at it." Sen. Jon Kyl (R-Ariz.) said he would oppose changes to the Intelligence Committee’s language on immunity, but predicted that the Judiciary Committee could make the provision more palatable for Democrats. Sen. Kit Bond said Specter’s amendment was "disastrous" and that government secrets would be disclosed if lawsuits were allowed to proceed. Senator Dick Durbin (D-Ill.), however, was open to the idea saying "I think the government needs to be held accountable for a warrantless program that I think clearly violated the law."

Judiciary approves FISA overhaul bill
On November 15, 207, the Senate Judiciary Committee approved its version of the RESTORE Act, stripping the telecom immunity provision and strengthening some of the bill's civil rights protections. Because the Intelligence and Judiciary committee versions differed, the full Senate would be forced to debate the immunity provision.

Senate Debate on RESTORE ACT
On December 17, 2007, Reid brought the Intelligence Committee version of the RESTORE Act to the Senate floor for debate. Sens. Chris Dodd and Russ Feingold voiced objection to the inclusion of telecom immunity, and Dodd threatened to fillibuster. Following a vote to debate the measure (which easily passed 76-10) Reid unexpectedly pulled the bill from consideration. Since the Protect America Act expires in February, the Senate will have two weeks to approve a surveillance reform bill.

Senate support of Immunity grows
On January 24, 2008 the Senate rejected the bill sponsored by Democrats on the Judiciary Committee, omitting immunity for the telecommunications companies. The legislation was defeated by a 60 to 36 vote, with 12 Democrats joining Republicans.

Senate Republican leaders used a parliamentary maneuver in an attempt to force a cloture vote on January 28. That would prevent Democrats from offering additional amendments to the legislation. As a result, Reid signaled he might seek an extension for the temporary reforms adopted in August 2007.

Also on January 24, the White House agreed to give members of the House Intelligence and Judiciary Committees access to a set of secret records related to the warrantless wiretapping program. Similar access was granted to Senate committees in the previous fall, in an effort to gain support for the immunity provision.

Senate Intelligence Committee Chairman Rockefeller, a backer of the immunity provision, said that he was confident he had the 60 votes needed to overcome any filibuster attempt by fellow Democrats. The Senate was to resume the debate on January 28 with a set of key amendments that could affect the final outcome. These included an amendment offered by Specter and Whitehouse that would make the federal government liable for privacy violations instead of the companies; an amendment offered by Feinstein which would allow a secret intelligence court to determine whether companies should receive immunity; and an amendment by Dodd and Feingold to strip the immunity outright.

Second House version passed March 2008
The House passed a new version of the RESTORE Act on March 14, 2008. The bill received no votes from Republicans and only 12 Democrats voted against it.



Much of the bill was the same as the initial version passed by the House, but the new portions:
 * Investigation of past warrantless wiretapping by Bush admin:
 * Set up a commission - with subpoena power - to investigate the Bush administration's warrantless spying program.
 * Amnesty for telecom companies that broke privacy laws:
 * Contained no amnesty for telecom companies that violated existing privacy laws in assisting the Bush administration in that program. The laws specifically require companies to protect their customers' information from government requests and form the basis for at least forty customer lawsuits brought by 2008.
 * Allowed a federal judge in the customer lawsuits to see secret documents related to the program, enabling the suits to proceed. The Bush administration had barred the companies from releasing the documents to the courts.

The Bush administration announced its opposition to the bill and said it was "dead on arrival" in the Senate. Bush has said that it is a matter of national security to pass new legislation extending the administration's spying powers, but has also said it would veto any bill that does not contain immunity for the telecom companies. The bill was then sent to the Senate to be reconciled with S.2248, its version of the RESTORE Act.

Related SourceWatch articles

 * U.S. congressional action on domestic wiretapping
 * Foreign Intelligence Surveillance Court
 * Foreign Intelligence Surveillance Court of Review
 * Department of Justice
 * Office of the Director of National Intelligence
 * George W. Bush's domestic spying

External articles

 * Ellen Nakashima, "Democrats to Offer New Surveillance Rules," The Washington Post, October 7, 2007.
 * Helen Fessenden, "House Democrats introduce surveillance bill rewrite," The Hill, October 9, 2007.
 * Pamela Hess, "Telecom Immunity May Be in Spying Bill," The AP, October 9, 2007.
 * Eric Lichtblau and Carl Hulse, "Democrats Seem Ready to Extend Wiretap Powers," The New York Times, October 9, 2007.
 * Siobhan Gorman, "Spy trouble for Democrats," The Baltimore Sun, October 9, 2007.
 * Ryan Singel, "Dems Spying Bill Adds Oversight, Allows Taps Inside U.S.," Wired Blogs: Threat Level, October 9, 2007.
 * Helen Fessenden and Jonathan E. Kaplan, "House Dems propose fix on wiretaps," The Hill, October 10, 2007.
 * Eric Lichtblau, "Immunity Crucial in Talks on Eavesdropping Rules," The New York Times, October 10, 2007.
 * "ACLU Statement on RESTORE ACT, ACLU Urges Congress to Include Individual Warrants for Americans," ACLU: Safe and Free, October 10, 2007.
 * Siobhan Gorman, "Bid to curb spy laws draws ire in Congress," The Baltimore Sun, October 10, 2007.
 * Klaus Marre, "Bush says Dems’ FISA reform bill is a step backward," The Hill, October 10, 2007.
 * Spencer Ackerman, "Much Still Unknown About Surveillance Efforts," TPMMuckraker, October 10, 2007.
 * Jonathan Weisman and Ellen Nakashima, “Senate and Bush Agree On Terms of Spying Bill,” The Washington Post, October 18, 2007.
 * Manu Raju, “Leahy: Intel panel about to ‘cave’ on surveillance,” The Hill, October 18, 2007.
 * Ellen Nakashima and Shailagh Murray, “Senate Panel Approves New Surveillance Bill,” The Washington Post, October 19, 2007.
 * Dan Eggen, "Immunity for Telecoms May Set bad Precedent, Legal Scholars Say," The Washington Post, October 22, 2007.
 * Ellen Nakashima, “Senators Say White House Cut Deal With Panel on FISA,” The Washington Post, October 23, 2007.
 * Steve Benen, "On eve of telecom vote, AT&T whistleblower steps up," The Carpetbagger Report, November 8, 2007.
 * John Ashcroft, "Uncle Sam on the Line," The New York Times, November 5, 2007.
 * Ellen Nakashima, "A Story of Surveillance," The Washington Post, November 7, 2007.
 * Ryan Singel, "Top Secret: We're Wiretapping You," Wired, March 5, 2007.
 * Steven M.Bellovin, Matt Blaze, Whitfield Diffie, Susan Landau, Peter G. Neumann and Jennifer Rexford, "Risking Communications Security: Potential Hazards of the Protect America Act", IEEE Security and Privacy, retrieved January 31, 2008