Illinois Senator Richard Durbin's Thoughts on FISA Amendments Act of 2008

June 25, 2008






*Edited out my full name and address*




Thank you for your message regarding the surveillance of American citizens by the National Security Agency (NSA). I appreciate hearing from you on this important issue and share your concerns.



Protecting both the security and the freedom of the American people is among my highest priorities. We must ensure that the federal government defends the people of the United States from external threats while preserving the civil liberties that have helped make the United States the greatest and most enduring democracy in the world.



President Bush authorized the NSA to conduct warrantless electronic surveillance of communications made by American citizens living within the United States. At the time of the President's authorization, the Foreign Intelligence Surveillance Act (FISA) required the government to seek a warrant from a special court in order to conduct electronic surveillance of communications between American citizens and anyone outside the country. The NSA did not obtain approval from the FISA court or from any other court before initiating its domestic surveillance program.



For most of its existence, the NSA's program has operated without meaningful oversight. Few members of Congress were briefed about the program until its existence was revealed by the media, and those members who were aware were sworn to secrecy. The majority of the members of Congress still have not been fully briefed about the program's operational details. The Administration also has shut down its own Justice Department investigation into the NSA's program. In essence, the Administration has attempted to operate this program without any supervision or oversight. The lack of a mechanism for correcting potential abuses in the program undermines our Constitutional system of checks and balances and raises serious concerns about the possibility of excessive intrusion.



Congress has tried to work with Administration officials to update FISA in light of technological advances in communications. Too often, however, the Administration has taken advantage of the program's secrecy in its negotiations with Congress. In August 2007, the Administration proposed amending FISA through legislation known as the Protect America Act. I voted against the measure because I believed the bill provided too much opportunity for abuse by the NSA and other intelligence officials. Nonetheless, Congress passed the bill and the President signed it into law.



Congress currently is engaged in a debate about the appropriate scope of FISA. At the center of this debate is the issue of whether telecommunications companies that assisted in illegal surveillance should receive retroactive immunity from prosecution.



I oppose retroactive immunity for these companies and supported an amendment to the FISA Amendments Act of 2008 (S. 2248) that would have prevented them from obtaining retroactive immunity. This amendment, however, was unsuccessful. After the amendment failed, I voted against the bill, but it passed by a vote of 68-29.



The House of Representatives has refused to support any similar bill containing a retroactive immunity provision, and negotiations on this matter are continuing. Any legislation amending FISA should hold telecommunications companies responsible for their unlawful actions. The legislation should bring to light the role telecommunications companies played in the Administration's unlawful attempts to listen in on the communications of American citizens.



When the President and his Administration order surveillance of American citizens, these actions must be conducted in a manner consistent with the rule of law and the Constitution's commitment to civil liberties. I am deeply concerned about the manner in which the Executive Branch has initiated and conducted the NSA surveillance programs. I will keep your thoughts in mind as Congress continues to debate this issue.



Thank you again for contacting me. Please feel free to keep in touch.


Sincerely,




Richard J. Durbin

United States Senator



RJD/td

Correction

My mind seems to be failing as my comprehensive examination for graduation nears.

John Shimkus represents the 19th Illinois Congressional District, not the 15th.

My apologies for any confusion.

Cheers!
Wyatt

Response from Senator Obama concerning the FISA Amendments Act of 2008

Dear Wyatt:

Thank you for contacting me concerning the President’s domestic surveillance program. I appreciate hearing from you.

Providing any President with the flexibility necessary to fight terrorism without compromising our constitutional rights can be a delicate balance. I agree that technological advances and changes in the nature of the threat our nation faces may require that the Foreign Intelligence Surveillance Act (FISA), enacted in 1978, be updated to reflect the reality of the post 9/11 world. But that does not absolve the President of the responsibility to fully brief Congress on the new security challenge and to work cooperatively with Congress to address it.

As you know, Congress has been considering the issue of domestic surveillance since last year. Just before the August recess in 2007, Congress passed hastily crafted legislation to expand the authority of the Attorney General and the Director of National Intelligence to conduct surveillance of suspected foreign terrorists without a warrant or real oversight, even if the targets are communicating with someone in the United States. This legislation was signed into law by the President on August 5, 2007.

As you are aware, Congress has been working on reforms to FISA. On November 15, 2007, the House of Representatives passed H.R. 3773, the “Responsible Electronic Surveillance That is Overseen, Reviewed, and Effective Act of 2007” (RESTORE Act) by a vote of 227-189. The House bill did not provide retroactive immunity for private companies that may have participated in the illegal collection of personal information, nor does it provide immunity for Administration officials who may have acted illegally.

On February 12, 2008, the Senate passed S. 2248, making its own reforms to FISA. During consideration of this bill, I was proud to cosponsor several amendments, including the Dodd-Feingold amendment to strike the immunity provision, which would have enhanced privacy protections while maintaining the tools to fight terrorism. However, with the defeat of this amendment, the bill did not provide for a mechanism that would allow the American people to learn exactly what the Bush Administration did with its warrantless wiretapping program and provided for no accountability.

The House and Senate worked out a compromise, reconciling differences between the two versions of the bill before it can be signed into law. While I recognize that this compromise is imperfect, I will support this legislation, which provides an important tool to fight the war on terrorism and provides for an Inspectors General report so that we can finally get to the bottom of the warrantless wiretapping program and how it undermined our civil liberties. However, I am disappointed that this bill, if signed into law, will grant an unprecedented level of immunity for telecommunications companies that cooperated with the President's warrantless wiretapping program, and I will work with my colleagues to remove this provision.

The American people understand that new threats require flexible responses to keep them safe, and that our intelligence gathering capability needs to be improved. What they do not want is for the President or the Congress to use these imperatives as a pretext for promoting policies that not only go further than necessary to meet a real threat, but also violate some of the most basic tenets of our democracy. Like most members of Congress, I continue to believe that the essential objective of conducting effective domestic surveillance in the War on Terror can be achieved without discarding our constitutionally protected civil liberties.

Thank you again for writing. Please stay in touch as this debate continues.

Sincerely,

Barack Obama
United States Senator
-------------------------------------------------------------------------------------I would like to thank Senator Obama for the very fast response. Now I want to know what Senator Durbin of Illinois has to say, but also give Senator McCain the ability to respond.

The saga of telecom immunity continues

On June 20th, the US House passed the FISA Amendments Act of 2008. Among those amendments is immunity for telecommunications companies for their cooperation of potentially violating the 4th Amendment rights of US citizens in an effort to preserve national security. Unfortunately the calls I placed to my Representative were unsuccessful. Thank you John Shimkus of the 15th Illinois Congressional District (Correction should have been the 19th Illinois Congressional District. My mistake, apologies)..Luckily election time is just around the corner.

Now the saga moves onto the US Senate. Which should be interesting. Considering our two presidential contenders will need to vote on the issue. If they do not take a stand on this issue, then how can we trust their leadership and decision making skills. Fortunately for me, Senator Obama is one of my senators. Unfortunately for him I have already called and e-mailed his office. (I had to make sure you heard me Senator Obama!).

If you are interested in the bill then you can find some more information at the following locations.

The legislation

Roll call vote of the US House

Sorry I only have the information for the Illinois senators...if you need to find out your senator's contact information you can go here and search by state.

Senator Obama

Phone: (202) 224-2854

District Phone: (312) 886-3506

Web page

Senator Durbin

Phone: (202) 224-2152

District Phone: (312) 353-4952

Web page

Tiered Internet service

If you have been around the blogs or the technology news websites, you would have seen that Time-Warner Cable has finally begun their tiered Internet testing in Texas.

First, I would like to applaud TWC for taking this step in my own way. *Golf claps*. Seriously though at least TWC is attempting to find a solution to a potentially bad problem.

Time for the criticism. Most of us don't know how much data we transmit in any given month. The service in Texas does provide a metering device to track the usage, but where did the 40GB number come into play as the limit? I cannot say for certain, because I really have no idea what my data download statistics are, but 40GB seems fairly small. Especially when TWC is also including uploading traffic in the data count. What about advertising, sure it may be small amounts, but why should ISP subscribers pay for advertisements? Especially the annoying advertisements that pop up and slide across your screen, not allowing you to accurately hit the 'close' option? These are some smaller, perhaps even trivial aspects that have not been fully explored. Hopefully that the TWC experiment will allow that exploration and for adjustments.

Generally for any ISP exploring pay-per-byte(PPB)...

My understanding is that there is an issue with network management and that certain people are, perhaps, abusing or taking full advantage of a system. For me I am wanting some sort of trade-off from the ISPs. If consumers can move to pay-per-byte with hard limits, from pay-per-month with few limits, what is left to bargain with other than the guarantee of service levels. Part of the reason this is being tested is to examine network effects and hopefully cut down on the high bandwidth users. If consumers make that trade, then there should be some return for their business rather than restrictions on downloads .