TX Senator Hutchinson Response to My Call Regarding FISA

Dear Mr. Cherry:

Thank you for contacting me regarding the Foreign Intelligence Surveillance Act. I welcome your thoughts and comments on this issue.

The Foreign Intelligence Surveillance Act (FISA) of 1978 provides the basic framework for the use of electronic surveillance in the context of foreign intelligence gathering. Over time, FISA has been amended to expand intelligence gathering to physical searches and access to certain business records. Following the September 11, 2001, terrorist attacks, the USA PATRIOT Act made significant changes to some FISA provisions in order to aid in the capture of suspected terrorists.

On July 11, 2008, the President signed into law H.R. 6304, the FISA Amendments Act of 2008. This bill updates FISA to close a critical gap relating to the surveillance of suspected terrorists and to address limitations on surveillance created by a 2007 FISA Court decision. The bill also includes important safeguards to protect privacy and civil liberties, including procedures to prevent the dissemination of information about U.S. citizens that has been collected incidentally during certain surveillance activities. H.R. 6304 passed the Senate with my support by a bipartisan vote of 69-28.

One contentious provision in the bill allows a federal district court to rule on whether there was “substantial evidence” that electronic service providers who may have cooperated with the federal government in its warrantless surveillance program after 9/11, received written assurances that the program was legal and authorized by the President. If the court rules that there was substantial evidence of assurances, the existing class action lawsuits that many of these companies face will be dismissed. It is important to note that FISA has provided for many years that suits against electronic communications service providers cannot be maintained if there is a court order authorizing the surveillance or the companies received written certification that their cooperation in surveillance activities was legal. Because the federal government asserted its executive privilege in the pending lawsuits in order to protect sources and methods of intelligence collection, the companies' ability to provide evidence to defend their alleged conduct has been limited.

I recognize that some oppose liability protection, but I believe that it is untenable to allow lawsuits to proceed at the same time that we limit the ability of the defendant companies to produce evidence critical to their defense. The potential liability awards that might result could be catastrophic, negatively affecting the broader economy and signaling to these companies, and to other private entities that we may need to rely upon in the War on Terror, that their cooperation carries major risks.

Please know that I will continue to work with my colleagues in Congress to safeguard the security of our nation while upholding our personal privacy rights and civil liberties.

I appreciate hearing from you, and I hope that you will not hesitate to keep in touch on any issue of concern to you.

Sincerely,
Kay Bailey Hutchison
United States Senator

284 Russell Senate Office Building
Washington, DC 20510
202-224-5922 (tel)
202-224-0776 (fax)
http://hutchison.senate.gov