Today in 2008: the FISA Amendments Act of 2008 are signed into law

July 10, 2015

Today in Legal HistoryThe U.S. Government’s mass surveillance programs have become increasingly visible to the public over the past several years, thanks in part to disclosures by parties such as Wikileaks and Edward Snowden.  Just because the public is more aware of these programs doesn’t mean that they have stopped operating, or that the laws purported to authorize them aren’t still fully in effect.

In fact, one such law, the FISA Amendments Act of 2008, is marking the seventh anniversary of its enactment and has since that time even survived a Supreme Court challenge.  The amendments, signed into law by President George W. Bush on July 10, 2008, provide a slew of tools to further facilitate the operation many of these surveillance programs.

For example, the act releases telecommunication companies from any legal liability for furnishing information to or otherwise assisting the “Attorney General or the Director of National Intelligence.”  Furthermore, the act prevents the states from investigating or requiring disclosure from telecommunication companies over any such assistance provided to the federal government.

Beyond protecting telecoms, the act also allows the government to destroy any records of the searches and surveillance it performs, whereas government agencies are normally required to retain records for a period of ten years.

While the act allows for the surveillance of foreigners who are abroad, most pertinent to the surveillance of U.S. citizens, the Amendments Act authorizes the wiretapping of Americans who are also overseas.  These last two provisions were the primary subject of the aforementioned Supreme Court case challenging the act’s constitutionality: 2013’s Clapper v. Amnesty International.

In Clapper, a group of attorneys with clients who have faced or are facing terrorism charges, a group of journalists, and a human rights organization (Amnesty International), all sued challenging the constitutionality of the amendments, claiming that they all engaged and continue to engage in sensitive communications with individuals believed to be the target of surveillance under the act.

In a 5-4 ruling along ideological lines, the Court found that the challengers lacked standing to challenge the act because the alleged injuries suffered by the challengers were too remote.  No legal challenges to the 2008 amendments have emerged since, and provisions that were set to expire at the end of 2012 have been reauthorized.

Those provisions are once again scheduled to expire in 2017, but with the growing public awareness of the reach of these surveillance programs, these provisions may not have such an easy time securing reauthorization the next time.