The New FISA Bill: A Bad Deal The FISA deal announced on June 19 effectively grants retroactive immunity to companies that allegedly participated in the President’s illegal wiretapping program, and it does not provide adequate protections for innocent Americans. Title I of the new bill, which includes a dramatic expansion of the Foreign Intelligence Surveillance Act, does not include the most significant safeguards approved by the Senate Judiciary Committee, and it does not include any of the amendments that Senator Feingold offered on the Senate floor earlier this year, each of which received 35 or more Democratic votes. These safeguards would have permitted the government to obtain the intelligence information it needs while also protecting the privacy of law-abiding Americans.
BackgroundThe purpose of the bill is to address a problem that everyone agrees should be fixed – namely, making clear that the government does not have to get a warrant for foreign-to-foreign communications that happen to pass through the U.S. The new bill goes far beyond this narrow fix, however. It allows the government to listen in on international communications to and from law-abiding Americans in the U.S. who have no connections to terrorism, and the checks on this international dragnet authority are entirely inadequate.
Unjustified Grant of Retroactive ImmunityUnder the new FISA bill, H.R. 6304, the immunity outcome is predetermined. A federal district court could review in secret the letters to companies to determine whether ‘substantial evidence’ indicates that they received written requests stating the activity was authorized by the President and determined to be lawful. But information declassified by the Senate Intelligence Committee already indicates that the companies got such written requests – meaning immunity is virtually guaranteed. The plaintiffs could participate in briefing to the court, but only to the extent it does not necessitate the disclosure of classified information, which will seriously impair their ability to participate in a meaningful way.
Lengthy SunsetThe bill sunsets in December 2012, a mere one year earlier than the Senate bill and a presidential election year.
Little Protection Against Reverse TargetingThe bill prohibits intentionally targeting a person outside the U.S. without an individualized court order if “the purpose” is really to target someone reasonably believed to be in the U.S., and it requires the executive branch to establish guidelines for implementing this requirement. But the guidelines are not subject to judicial review, and the bill does not include provisions approved by the Senate Judiciary Committee bill that would require the government to obtain a court order whenever a significant purpose of the surveillance is to acquire the communications of an American. This important “significant purpose” language had the support of 38 Senators when offered on the Senate floor, and was included in the House bill.
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http://feingold.senate.gov/issues_fisafacts.html 
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