A group of Senate Democrats led by Russ Feingold (WI) and Dick Durbin (IL) have proposed the Judicious Use of Surveillance Tools in Counter-terrorism Efforts (JUSTICE) Act, a bill that would introduce stronger safeguards and higher standards of judicial oversight for surveillance activity. It aims to reform the most abusive characteristics of the PATRIOT Act and would also roll back a controversial provision of the FISA Amendment Act that granted telecom companies retroactive immunity for their participation in the Bush administration's extralegal warrantless surveillance program.

The proposal is broadly endorsed by privacy advocates and civil liberties groups, including the American Civil Liberties Union and the Electronic Frontier Foundation. Senator Feingold says that the goal of the act is to ensure that surveillance and intelligence-gathering activities are properly empowered while guaranteeing that rights are respected and investigative privileges are not misused.

"Every single member of Congress wants to give our law enforcement and intelligence officials the tools they need to keep Americans safe," Feingold said in a statement. "The JUSTICE Act permits the government to conduct necessary surveillance, but within a framework of accountability and oversight. It ensures both that our government has the tools to keep us safe, and that the privacy and civil liberties of innocent Americans will be protected."

The National Security Letter (NSL) provision of the PATRIOT Act is one area in particular where the JUSTICE Act would institute new safeguards. PATRIOT Act allows federal law enforcement agents to use an NSL, instead of a court order, to obtain private records. Civil liberties advocates fear that the lack of appropriate judicial oversight applied to NSLs creates a very high risk of abuse. Indeed, a Department of Justice audit in 2007 found evidence of serious irregularities. Several components of the PATRIOT Act, including a highly controversial provision that enforced a "gag order" against NSL recipients, were deemed unconstitutional and were later stricken.

The JUSTICE Act mandates use of the "least intrusive means" of information collection. It imposes limitations on the process that law enforcement agencies use to gain expedited emergency access to information. It also establishes new tracking and reporting requirements to ensure that NSL usage will receive a higher level of Congressional scrutiny.

One of the most significant aspects of the JUSTICE Act is that it will remove the retroactive immunity grants that were given to the telecom companies that participated in the NSA warrantless surveillance program. The companies that cooperated with the surveillance program likely violated several laws, including section 222 of the Communications Act, which prohibits disclosure of network customer information. The immunity grants have prevented the telecommunications companies that voluntarily participated in this program from being held accountable in court.

If the JUSTICE Act is passed, then litigation against the telecom companies can move forward. Such litigation could be instrumental in determining the scope of illegal activity that was perpetrated under the aegis of the NSA's surveillance program. The previous administration fought fiercely against that kind of scrutiny during Bush's presidency.

Although President Obama initially supported holding the telecom companies accountable, he reversed his position and voted in favor of telecom immunity while still in the Senate. It's unclear if Obama will support the JUSTICE Act.

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