On November 15, 2007, the House of Representatives passed the RESTORE ACT OF 2007, less commonly referred to at the Responsible Electronic Surveillance That is Overseen, Reviewed, and Effective.  The bill is considered to be an update of the Foreign Intelligence Surveillance Act (FISA) and is being “sold to” lawmakers and citizens as a way to provide meaningful and flexible surveillance tools for the intelligence community, while claiming to protect the constitutional rights of Americans whose communications may be intercepted in the process. 

This bill provides a mechanism, through December 2009, to conduct foreign electronic surveillance for the purpose of defending against terrorism and other national security threats, without the need for individual court orders for overseas targets.

In circumstances where there is a reasonable likelihood of obtaining information about terrorist activities and other security threats, the RESTORE Act provides that such surveillance be conducted under rules reviewed by and approved by the FISA court.  It is still unclear exactly what guidelines and securities need to be put into place to ensure the information gathered from civilians will not be passed on to other authorities and used against that person for improper purposes. 

The bill also allows the Director of National Intelligence (DNI) and the Attorney General to apply to the FISA court for a single court order (sometimes referred to as a “basket” court order) authorizing surveillance of a suspected terrorist organization abroad or other foreign power for up to one year, so long as there are reasonable procedures in place to ensure that only foreigners are targeted and Americans’ rights are preserved.  The officials could also apply for one-year extensions of such court orders.  Each order would apply to a group of suspected foreign terrorists. 

The Administration can seek as many orders as it wants.  Again, little is said about what protections for American’s need to put into place by the Court, and what happens if incriminating information is discovered with regard to an American that is not under surveillance.  Will that information be used against them, despite the fact that they were not an original target of the surveillance?  That part is still unclear.  It is conceivable that incriminating information is intercepted from surveillance activities without proper procedural safe guards put into place, and that such information could then be passed on to local authorities, which could be used to build a case against them.  Such a scenario would effectively circumvent one’s Fourth Amendment rights.  

Under this bill, instead of having to seek warrants on a case-by-case basis, intelligence agencies would be able to obtain programmatic orders from the court for surveillance programs.  However, the FISA court would have to approve the procedures under which surveillance is conducted – specifically, to ensure that appropriate safeguards are in place to protect the privacy of Americans whose communications with foreigners happen to be intercepted.” 

Under the bill, in reviewing applications for court orders, the FISA court would review and approve the following: 1) the government’s so-called “minimization procedures” to lessen the aggregation and retention of sensitive information about U.S. citizens; 2) the targeting procedures to ensure that surveillance is reasonably designed to target only people outside the United States; and 3) the guidelines to ensure that if a target becomes a person in the United States for whom collection requires a court order, an individualized order will be sought. 

Further, the DNI and the Attorney General would be authorized to conduct electronic surveillance for up to 45 days in an “emergency situation” if certain criteria are met.  Although, the bill requires regular audits by the Justice Department Inspector General on communications collected under this authority and the number of U.S. persons identified in intelligence reports disseminated pursuant to this collection.  These audits would be provided to the FISA court and to Congress.  It also requires an audit and a report to Congress on the President’s Terrorist Surveillance Program and other warrant less surveillance programs and mandates record keeping on any interception of the communications of U.S. persons.