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Electronic Surveillance Modernization Act

Long title	An Act to Update the Foreign Intelligence Surveillance Act of 1978
Legislative history
Introduced in the United States House of Representatives Committee consideration by United States House Permanent Select Committee on Intelligence; United States Senate Committee on the Judiciary Passed the United States House of Representatives on September 28, 2006 (232 to 191)

The Electronic Surveillance Modernization Act (also ESMA; H.R. 5825 of the 109th Congress) was a failed bill introduced in 2006, aimed at expanding the United States federal government’s authority to conduct warrantless wiretaps in the wake of the War on Terror. The bill passed the House on September 28, 2006 with a vote of 232 to 191. Although the Senate began the processes, it never held a vote on the bill, ultimately causing it to expire.

The bill sought to amend the Foreign Intelligence Surveillance Act of 1978 (FISA) by providing broader surveillance powers to the executive branch, particularly the National Security Agency (NSA). The justification for the bill was largely framed around enhancing national security following the September 11, 2001 attacks and addressing technological changes that made surveillance laws outdated.

The George W. Bush administration argued that existing FISA requirements were too slow and cumbersome to keep pace with rapidly evolving terrorist threats and new forms of communication, such as disposable cell phones and digital communication platforms like email and social media. The bill’s proponents also pointed to new routing methods for international communications, which could be technically intercepted within the U.S., as a reason to remove legal barriers to surveillance.

Content and Support

On September 28, 2006, the House of Representatives passed ESMA by a vote of 232 to 191. Prior to passage, some attempts were made to impose restrictions on the reach of the bill, including additional oversight mechanisms, but these efforts were ultimately unsuccessful oai_citation: 1‡hearing.txt.

The bill included several controversial provisions, including:

• Allowed the Attorney General to approve wiretaps without judicial approval under broad conditions.
• Redefined “electronic surveillance” to exclude certain types of communications, effectively removing them from FISA’s warrant requirement.
• Enabled the government to collect bulk communications between Americans and foreigners, allowing NSA analysts to later sift through and select individual conversations.
• Allowed the President to waive FISA requirements if he determined the U.S. had been the subject of a terrorist attack or faced imminent threats, enabling ongoing warrantless surveillance.
• While some oversight mechanisms were included, critics argued they were toothless, as they did not provide a meaningful check on executive powe.

The bill was strongly supported by President George W. Bush, Rep. Heather Wilson (R-NM) (the bill’s chief sponsor), Rep. Pete Hoekstra (R-MI), and Rep. James Sensenbrenner (R-WI). The Bush administration contended that ESMA was necessary to close intelligence gaps and streamline the surveillance process.

Opposition and Legislative Failure

Main article: NSA warrantless surveillance (2001–2007)

Despite its passage in the House, the Senate failed to vote on the bill, due to a combination of political and legal concerns, especially the recent December 2005 revelations about the National Security Administration's broad surveillance of American citizens. Several key factors contributed to its legislative failure including the Bush administration's refusal to turn over intelligence reports that purportedly justified the need for the law, fueling skepticism about its necessity. Some Senators believed the White House overstated the urgency of passing ESMA.

Constitutionality

Legal scholars, civil liberties organizations, and members of Congress warned that the bill violated the Fourth Amendment by eliminating the warrant requirement for electronic surveillance of Americans.

The American Civil Liberties Union (ACLU) and other organizations argued that ESMA would set a dangerous precedent, enabling mass surveillance without probable cause.

Opposition and the midterm elections

Many Democrats and some Republicans were hesitant to pass a bill that expanded executive power at the expense of judicial oversight.

The 2006 midterm elections were approaching, and opposition to the Bush administration’s handling of civil liberties issues was a growing political concern. Senators did not want to be seen as endorsing warrantless surveillance without more justification.

Opponents argued that ESMA was unnecessary because FISA had already been amended multiple times after 9/11 to increase flexibility, including a 72-hour emergency window for surveillance without a warrant.

Some lawmakers, including Rep. Jane Harman (D-CA) and Rep. John Conyers (D-MI), introduced alternative bills that sought to modernize FISA without eliminating judicial oversight.

In the end, ESMA failed to gain enough traction in the Senate, and its most controversial elements were later incorporated into the FISA Amendments Act (FAA) of 2008particularly Section 702, which allowed warrant-less surveillance of foreign targets while incidentally collecting communications involving Americans.

References