The Bush administration calls for changes to the FISA law — the 1970s-era legislation that gives a secret court oversight for spy agencies to wiretap inside the United States. The White House says the changes would allow the National Security Agency and other spy agencies to keep up with changing technology in tracking foreign terrorists.
But some civil libertarians are crying foul, saying the changes would gut FISA and eliminate basic judicial checks and balances on electronic eavesdropping.
The administration says it wants to make the Foreign Intelligence Surveillance Act — or FISA — more "technology-neutral" — that is, it wants to make sure spy agencies can use new forms of surveillance that aren't specifically foreseen in the law.
John Schmidt, who was the associate attorney general in the Clinton administration, defends President Bush's surveillance policies, saying he thinks modernization is a good idea.
"It would seem to me it would kind of free up the NSA and others working with them to be creative," Schmidt says. "Because we really want them to come up with new ways to be creative, you know, ways that you and I haven't thought about and won't think about, and therefore the kind of people who are engaged in planning of terrorist attacks also won't know about."
But Mike German, of the American Civil Liberties Union, points out that the bill gives the executive branch more leeway to spy on private electronic communications without a court order — without even the after-the-fact court orders already allowed by FISA.
"You know, anybody who knows that somebody's going to be looking at what they do," German says, "are doing to have a tendency to be more careful about how they do it."
The ACLU and other privacy groups object to another proposed change that offers legal cover to anybody — or any company — that cooperates with the government's spying.
Several major phone companies have been sued for sharing their customers' phone records with the government, and suits from around the country are being rolled into a massive case in a federal court in San Francisco. But if the Bush administration's changes are passed, the companies would get immunity, retroactive to Sept. 11, 2001.