02.11.08

Support Of Amendment 3915, To Limit The Use Of Unlawfully Obtained Information

The authorities and procedures in S.2248 would permit the FISA Court to review government targeting and minimization procedures.  If, however, the Court finds certain aspects of those procedures to be inadequate – even grossly inadequate – S. 2248 provides no authority to restrict the use of information already collected using those procedures.  That means that the government would be free to access, use, and share information about private communications that was collected in violation of the law. 

Senator Feingold’s amendment would ensure that the Court has the authority to stop a continuation, and perhaps escalation, of the harm caused by the government’s use of illegal procedures.  This provision would limit the government’s use and dissemination of illegally obtained information if the FISA Court later determines that the procedures were not reasonably designed to target people outside of the United States or to adequately minimize the use of information about U.S. persons.  It is important to note that, under this provision, if the government acts to address the Court’s concerns and correct these procedures it would then be free to use and disseminate the information it acquired.

This is not a novel application of law under FISA.  FISA’s existing emergency provision holds that if the government begins emergency surveillance without a warrant, and the FISA Court then determines the surveillance to be unlawful, the government cannot use and disseminate the information it acquired except under very limited circumstances.  Senator Feingold’s amendment simply applies these reasonable safeguards to the new and broadly expanded authority we are now giving to the government.  This provision represents a crucial safeguard for the protection of Americans’ privacy rights. 

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