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The ammendment would dismiss lawsuits pending against the telecommunications companies that undertook wiretapping in violation of the clear terms of the Foreign Intelligence Surveillance Act (“FISA”).
 
Most Americans believe that all plaintiffs suing regarding violations of FISA should be given their day in court and that Congress should not interfere with those plaintiffs’ statutory and constitutional rights to sue to protect Americans’ privacy in their phone calls and e-mails. Urge Congress to continue to allow the court to hear and decide these matters in the manner established by FISA, which ensures victims of warrantless wiretapping the right to sue.

The Foreign Intelligence Surveillance Act (FISA), born after the Watergate scandal, establishes how the government can secretly eavesdrop on Americans in their own country in intelligence investigations. It was originally passed to allow the government to collect foreign intelligence information involving communications with “agents of foreign powers.”

Today, however, the federal government is exploiting this once-narrow exception to make an end-run around the Constitution. The USA Patriot Act, passed by Congress in 2001 and re-authorized in 2006, expanded FISA to allow the government to obtain the personal records of ordinary Americans from libraries and Internet Service Providers, even when they have no connection to terrorism. Recent amendments in the Protect America Act authorized the government to use FISA to get around the constitutional requirement that it show a judge that it has probable cause of involvement with a foreign country or terror group before it eavesdrops on a communication.

Although the Patriot Act was rushed into law just weeks after 9/11, a congressional investigation into the attacks did not find that FISA’s limits on government surveillance contributed to the government’s failure to prevent the attacks. Instead, the investigation pointed to fundamental organizational breakdowns in the intelligence community and the government’s failure to make effective use of the surveillance powers already at its disposal. Despite overwhelming evidence that FISA did not need to be expanded, Congress moved to broaden the reach of the law and weakened its protection of Americans’ freedom and privacy.

Even as the White House lobbied to expand the scope of FISA, we now know that President Bush disregarded the rule of law when he authorized the National Security Agency to spy on ordinary Americans’ phone calls and e-mails without the warrant FISA requires. Shockingly, Congress voted to temporarily condone this abuse of power in August 2007 with legislation sanctioning this illegal operation. Congress stood up to pressure from the White House and allowed the law to expire in February. In the weeks thereafter, the House passed a much improved, though still flawed, bill which ensures judicial oversight of domestic surveillance and provides both the telecommunications companies and their consumers with access to the courts.

Through legislative advocacy and litigation, the ACLU actively opposes efforts in Congress to further broaden the government’s power to spy on innocent Americans who are not conspiring with foreign powers, and support proposals to increase judicial and congressional oversight of FISA surveillance and restore much-needed checks and balances. We hope that you will join us in that effort.