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The Protect America Act of 2007 (PAA), (Pub.L. 110-55, 121 Stat. 552, enacted by S. 1927), is a controversial amendment to the Foreign Intelligence Surveillance Act (FISA) that was signed into law on August 5, 2007. It removed the warrant requirement for government surveillance of foreign intelligence targets "reasonably believed" to be outside of the United States.[1] The FISA Amendments Act of 2008 reauthorized many provisions of the Protect America Act.[2]

Contents

Background

In December 2005, the New York Times published an article[3] that described a surveillance program of warrantless domestic wiretapping ordered by the Bush administration and carried out by the National Security Agency in cooperation with major telecommunications companies since 2002 (a subsequent Bloomberg article[4] suggested that this may have already begun by June 2000). Many critics have asserted that the Administration's warrant-free surveillance program is a violation of the Fourth Amendment to the United States Constitution against warrantless search, and, a criminal violation of FISA.

The Bush administration maintained that the warrant requirements of FISA were implicitly superseded by the subsequent passage of the Authorization for Use of Military Force Against Terrorists.[5], and that the President's inherent authority under Article II of the Constitution to conduct foreign surveillance trumped the FISA statute. However, the Supreme Court decision in Hamdan v. Rumsfeld placed the legitimacy of this argument into question.[6][7]

On July 28, 2007, President Bush announced that his Administration had submitted a bill to Congress to amend FISA. He suggested that the current law was "badly out of date" - despite amendments passed in October 2001 - and did not apply to disposable cell phones and Internet-based communications. The bill he submitted to Congress would address these new technologies, Bush said, as well as restore FISA's "original focus" on protecting the privacy of people within the United States, "so we don't have to obtain court orders to effectively collect foreign intelligence about foreign targets located in foreign locations." He asked that Congress pass the legislation before its August 2007 recess, stating that "Every day that Congress puts off these reforms increases the danger to our nation. Our intelligence community warns that under the current statute, we are missing a significant amount of foreign intelligence that we should be collecting to protect our country".[8]

On August 3, 2007, the Senate passed the bill (S. 1927) in a vote of 60 to 28(110th Congress 1st Session Vote 309). The House followed by passing the bill, 227-183(House Roll Call 836) on August 3, 2007.

Changes made to prior law

The bill altered the original 1978 law in many ways, including:[9]

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Warrant and notification requirements

The bill amended FISA to substitute the requirement of a warrant to conduct surveillance with a system of NSA (National Security Agency) internal controls.[9]

The bill required notification to the FISA Court of warrantless surveillance within 72 hours of any authorization. The bill also required that "a sealed copy of the certification" be sent which would "remain sealed unless the certification is needed to determine the legality of the acquisition."[9]

Domestic wiretapping

The bill allowed the monitoring of all electronic communications of people in the United States without a court's order or oversight, so long as it is not targeted at one particular person "reasonably believed to be" inside the country.[1][10][11]

Foreign wiretapping

The Act removed the requirement for a FISA warrant for any communication which was foreign-related, even if the communication involved a U.S. location on the receiving or sending end of communication; all foreign-foreign communications were removed from warrant requirements, as well.[10]

Experts claimed that this deceptively opened the door to domestic spying, given that many domestic U.S. communications passed via non-US locations, by virtue of old telephony network configurations.

Data monitoring

In the bill, the monitoring of data related to Americans communicating with persons (U.S citizens and non-citizens) outside the United States who are the targets of a U.S. government intelligence information gathering efforts was addressed. The Protect America Act differed from the FISA in that no discussion of actions or character judgment of the target was required for application of the statute (i.e. to receive a FISA surveillance warrant, a FISC foreign agent definition was required). This data could be monitored only if intelligence officials acted in the context of intelligence information gathering.

Foreign Agent Declaration Not Required

No mention of foreign agent status is made in the Protect America Act of 2007. Under prior FISA rules, persons targeted for surveillance must have been declared as foreign agents before a FISA warrant would be accorded by the FISC court.

'Quasi-anti-terrorism law' for all-forms of intelligence collection

Vastly marketed by U.S. Federal and Military agencies as a law to prevent terror attacks, the Protect America Act was actually a law focused on the 'acquisition' of desired intelligence information, of unspecified nature. The sole requirement is geolocation outside the United States at time of Directive invocation; pursuant to Authorization or Order invocation, surveillance Directives can be undertaken towards persons targeted for intelligence information gathering. Implementation of Directives can take place inside the United States or outside the United Stats.

No criminal or terrorism investigation of the person need be in play at time of the Directive. All that need be required is that the target be related to an official desire for intelligence information gathering for actions on part of persons involved in surveillance to be granted full immunity from U.S. criminal or civil procedures, under Section 105B(l) of the Act.[10]

Authorization power

Under the bill, the director of national intelligence and the attorney general could authorize the surveillance of all communications involving persons outside the United States (U.S. citizens and non-U.S. citizens). The Foreign Intelligence Surveillance Court, normally the venue for intelligence-related warrants, was limited in power by the Protect America Act to an accept or reject power for government guidelines related to persons (U.S. and non-U.S. citizens) targeted for intelligence information gathering.[9]

1. Purpose of Directive is to Obtain Foreign Intelligence Information

The most significant of five points, comprising guidelines for Authorizing Certain Acquisitions Concerning Persons Outside the United States was that:
  • A significant purpose of the acquisition is to obtain foreign intelligence information.

2. Minimization procedures

One of the five points comprised referered to minimization procedures (how information was collected)
  • the minimization procedures to be used with respect to such acquisition activity meet the definition of minimization procedures under section 101(h).

3. Collaborators and informers required to facilitate in intelligence gathering

Any person or company could be enjoined and requested, on a compulsory basis, to assist with the intelligence information gathering.
  • The acquisition involves obtaining the foreign intelligence information from or with the assistance of a communications service provider, custodian, or other person (including any officer, employee, agent, or other specified person of such service provider, custodian, or other person) who has access to communications, either as they are transmitted or while they are stored, or equipment that is being or may be used to transmit or store such communications;

4. Removal of FISA Strictures and FISA-court (FISC) from warrant authorization; warrants not required

But the most striking aspect of the Protect America Act was the notation that any information gathering did not comprise electronic surveillance. This wording had the effect of removing FISA-related strictures from Protect America Act 2007-related Directives, serving to remove a number of protections for persons targeted, and requirements for persons working for U.S. intelligence agencies.
  • The acquisition does not constitute electronic surveillance
The removal of the term electronic surveillance from any Protect America Act Directive implied that the FISC court approval was no longer required, as FISA warrants were no longer required. In the place of a warrant was a certification, made by U.S. intelligence officers, which was copied to the Court. In effect, the FISC became less of a court than a registry of pre-approved certifications.
Certifications (in place of FISA warrants) were able to be levied ex post facto, in writing to the Court no more than 72 hours after it was made. The Attorney General was to transmit as soon as possible to the Court a sealed copy of the certification that would remain sealed unless the certification was needed to determine the legality of the acquisition.[9]

5. Geolocation procedures: Assuring that the person targeted for intelligence information gathering was outside U.S.

there are reasonable procedures in place for determining that the acquisition of foreign intelligence information under this section concerns persons reasonably believed to be located outside the United States, and such procedures will be subject to review of the Court pursuant to section 105C of this Act;

Reporting requirements

The Attorney General would report to Congress semi-annually with:

  • Reporting incidents of corporation non-cooperation. A description of any incidents of non-compliance with a directive issued.[9]
  • Reporting incidents of non-cooperative persons.Incidents of noncompliance by a specified person to whom the Attorney General and Director of National Intelligence issued a directive.[9]
  • The number of certifications and directives issued in the preceding six months.[9]
  • Reporting procedural failures.Incidents of non-compliance with the guidelines or procedures established for determining that the acquisition concerns persons outside the United States by any entity of the Intelligence Community.[9]

Legislative history

Senator Mitch McConnell introduced the act on August 1, 2007, during the 110th United States Congress. On August 3, it was passed in the Senate with an amendment, 60-28 (record vote number 309).[12] On August 4, it passed the House of Representatives 227-183 (roll number 836).[12] On August 5, it was signed by President Bush, becoming Public Law No. 110-055. On February 17, 2008, it expired due to sunset provision.

Sunset

The Act provided for six months of time for new Directives to be issued;

  • Sunset- Except as provided in subsection (d), sections 2, 3, 4, and 5 of this Act, and the amendments made by this Act, shall cease to have effect 180 days after the date of the enactment of this Act.

FISA Amendments of 2008: Continuance of Protect America Act authorizations and directives under

Whereas it is generally understood that the FISA Amendments of 2008 repealed the Protect America Act, this is not the case for existing directives and authorizations

(1) IN GENERAL- Except as provided in section 404, effective December 31, 2012, title VII of the Foreign Intelligence Surveillance Act of 1978, as amended by section 101(a), is repealed.

Continuance of Protect America Act 2007 Rules for Existing Orders

Section 404 (Transition Procedures) allows for continuance of Protect America Act Sections 105A, 105B and 105C for all existing orders. So for authorizations for intelligence information and directives issued under such authorizations, Protect America Act application continues to apply.

Section 404(a)2(A)subject to paragraph (3), section 105A of such Act, as added by section 2 of the Protect America Act of 2007 (Public Law 110-55; 121 Stat. 552), shall continue to apply to any acquisition conducted pursuant to an order, authorization, or directive referred to in paragraph (1); and
Section 404(a)2(B)sections 105B and 105C of the Foreign Intelligence Surveillance Act of 1978, as added by sections 2 and 3, respectively, of the Protect America Act of 2007, shall continue to apply with respect to an order, authorization, or directive referred to in paragraph (1) until the later of--
  • (i) the expiration of such order, authorization, or directive; or
  • (ii) the date on which final judgment is entered for any petition or other litigation relating to such order, authorization, or directive.

Section 404 (Continuance Procedures) allows for continued authorizations and directives to be renewed under same circumstances indefinitely; It also allowed for continuance of Immunities for persons and corporations (including but not limited to telecoms) under FISA 2008 Amendments.

Section 404(a)7(B) CONTINUATION OF EXISTING ORDERS- If the Attorney General and the Director of National Intelligence seek to replace an authorization made pursuant to section 105B of the Foreign Intelligence Surveillance Act of 1978, as added by section 2 of the Protect America Act of 2007 (Public Law 110-55; 121 Stat. 522), by filing a certification in accordance with subparagraph (A), that authorization, and any directives issued thereunder and any order related thereto, shall remain in effect, notwithstanding the expiration provided for in subsection (a) of such section 105B, until the Foreign Intelligence Surveillance Court (as such term is defined in section 701(b)(2) of the Foreign Intelligence Surveillance Act of 1978 (as so added)) issues an order with respect to that certification under section 702(i)(3) of such Act (as so added) at which time the provisions of that section and of section 702(i)(4) of such Act (as so added) shall apply.

Controversy

The Protect America Act generated a great deal of controversy. Constitutional lawyers and civil liberties experts expressed concerns that the Act authorized massive, wide-ranging information gathering with no oversight. Whereas much focus was placed on communications, the Act allowed for information gathering of all shapes and forms. The ACLU called it the "Police America Act" - "authorized a massive surveillance dragnet", calling the blank-check oversight provisions "meaningless," calling them a "phony court review of secret procedures."[11]

FISC ruling, January 2009

In January 2009, a United States Foreign Intelligence Surveillance Court of Review ruling was made in favor of the warrantless wiretapping role of the Protect America Act 2007, in a heavily redacted opinion released on January 15, 2009, which was only the second such public ruling since the enactment of the FISA Act.[13][14][15][16][17]

See also

References

  1. ^ a b Statement for the Record to the House Judiciary Committee by Director John Michael McConnell September 18, 2007
  2. ^ White House signing ceremony for FISA Amendments Act of 2008.
  3. ^ "Bush Lets US Spy on Callers Without Courts" (Dec. 16, 2005;
  4. ^ Bloomberg.com: Worldwide
  5. ^ U.S. Department of Justice White Paper on NSA Legal Authorities "Legal Authorities Supporting the Activities of the National Security Agency Described by the President" January 19, 2006.
  6. ^ Supreme Court’s Ruling in Hamdan Means Warrantless Eavesdropping is Clearly Illegal, Glenn Greenwald, July 9, 2006
  7. ^ Hamdan and the NSA Domestic Surveillance Program: What Next?, Marty Lederman, July 7, 2006
  8. ^ President's Radio Address - July 28, 2007
  9. ^ a b c d e f g h i GovTrack U.S. – S. 1927 Text of Legislation
  10. ^ a b c Nakashima, Ellen; Warrick, Joby (2007-08-05). "House Approves Wiretap Measure". Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2007/08/04/AR2007080400285.html?nav=rss_politics. Retrieved 2007-08-10.  
  11. ^ a b "ACLU Fact Sheet on the “Police America Act"". ACLU. 2007-08-08. http://www.aclu.org/safefree/nsaspying/31203res20070807.html. Retrieved 2008-04-13.  
  12. ^ a b GovTrack U.S. – S. 1927
  13. ^ "Court Affirms Wiretapping Without Warrants". New York Times, January 15, 2009. http://www.nytimes.com/2009/01/16/washington/16fisa.html?_r=1&hp. Retrieved January 16, 2009.  
  14. ^ "Court Backs U.S. Wiretapping". Wall Street Journal, January 16, 2009. http://online.wsj.com/article/SB123206893587088395.html?mod=googlenews_wsj. Retrieved January 16, 2009.  
  15. ^ "Intelligence Court Releases Ruling in Favor of Warrantless Wiretapping". Washington Post, January 15, 2009. http://www.washingtonpost.com/wp-dyn/content/article/2009/01/15/AR2009011502311.html?hpid=topnews. Retrieved January 16, 2009.  
  16. ^ "Court ruling endorses Bush surveillance policy". Associated Press, January 15, 2009. http://www.google.com/hostednews/ap/article/ALeqM5g9Q7M6scz4PEW8SuEo_bpOer6ZAQD95NRD1G0. Retrieved January 16, 2009.  
  17. ^ "No. 08-01 IN RE: DIRECTIVE (Redacted) * PURSUANT TO SECTION 105B OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (redacted tect) ON PETITION FOR REVIEW OF A DECISION OF THE UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT". United States Foreign Intelligence Surveillance Court of Review. August 22, 2008. http://www.uscourts.gov/newsroom/2009/FISCR_Opinion.pdf?WT.cg_n=FISCROpinion_WhatsNew_homepage. Retrieved 2009-01-16.  

External links


The Protect America Act of 2007 (PAA), (Pub.L. 110-55, 121 Stat. 552, enacted by S. 1927), is a controversial amendment to the Foreign Intelligence Surveillance Act (FISA) that was signed into law on August 5, 2007. It removed the warrant requirement for government surveillance of foreign intelligence targets "reasonably believed" to be outside of the United States.[1] The FISA Amendments Act of 2008 reauthorized many provisions of the Protect America Act.[2]

Contents

Background

In December 2005, the New York Times published an article[3] that described a surveillance program of warrantless domestic wiretapping ordered by the Bush administration and carried out by the National Security Agency in cooperation with major telecommunications companies since 2002 (a subsequent Bloomberg article[4] suggested that this may have already begun by June 2000). Many critics have asserted that the Administration's warrant-free surveillance program is a violation of the Fourth Amendment to the United States Constitution against warrantless search, and, a criminal violation of FISA.

The Bush administration maintained that the warrant requirements of FISA were implicitly superseded by the subsequent passage of the Authorization for Use of Military Force Against Terrorists.[5], and that the President's inherent authority under Article II of the Constitution to conduct foreign surveillance trumped the FISA statute. However, the Supreme Court decision in Hamdan v. Rumsfeld placed the legitimacy of this argument into question.[6][7]

On July 28, 2007, President Bush announced that his Administration had submitted a bill to Congress to amend FISA. He suggested that the current law was "badly out of date" - despite amendments passed in October 2001 - and did not apply to disposable cell phones and Internet-based communications. The bill he submitted to Congress would address these new technologies, Bush said, as well as restore FISA's "original focus" on protecting the privacy of people within the United States, "so we don't have to obtain court orders to effectively collect foreign intelligence about foreign targets located in foreign locations." He asked that Congress pass the legislation before its August 2007 recess, stating that "Every day that Congress puts off these reforms increases the danger to our nation. Our intelligence community warns that under the current statute, we are missing a significant amount of foreign intelligence that we should be collecting to protect our country".[8]

On August 3, 2007, the Senate passed the bill (S. 1927) in a vote of 60 to 28(110th Congress 1st Session Vote 309). The House followed by passing the bill, 227-183(House Roll Call 836) on August 3, 2007.

Changes made to prior law

The bill altered the original 1978 law in many ways, including:[9]

Warrant and notification requirements

The bill amended FISA to substitute the requirement of a warrant to conduct surveillance with a system of NSA (National Security Agency) internal controls.[9]

The bill required notification to the FISA Court of warrantless surveillance within 72 hours of any authorization. The bill also required that "a sealed copy of the certification" be sent which would "remain sealed unless the certification is needed to determine the legality of the acquisition."[9]

Domestic wiretapping

The bill allowed the monitoring of all electronic communications of people in the United States without a court's order or oversight, so long as it is not targeted at one particular person "reasonably believed to be" inside the country.[1][10][11]

Foreign wiretapping

The Act removed the requirement for a FISA warrant for any communication which was foreign-related, even if the communication involved a U.S. location on the receiving or sending end of communication; all foreign-foreign communications were removed from warrant requirements, as well.[10]

Experts claimed that this deceptively opened the door to domestic spying, given that many domestic U.S. communications passed via non-US locations, by virtue of old telephony network configurations.

Data monitoring

In the bill, the monitoring of data related to Americans communicating with persons (U.S citizens and non-citizens) outside the United States who are the targets of a U.S. government intelligence information gathering efforts was addressed. The Protect America Act differed from the FISA in that no discussion of actions or character judgment of the target was required for application of the statute (i.e. to receive a FISA surveillance warrant, a FISC foreign agent definition was required). This data could be monitored only if intelligence officials acted in the context of intelligence information gathering.

Foreign Agent Declaration Not Required

No mention of foreign agent status is made in the Protect America Act of 2007. Under prior FISA rules, persons targeted for surveillance must have been declared as foreign agents before a FISA warrant would be accorded by the FISC court.

'Quasi-anti-terrorism law' for all-forms of intelligence collection

Vastly marketed by U.S. Federal and Military agencies as a law to prevent terror attacks, the Protect America Act was actually a law focused on the 'acquisition' of desired intelligence information, of unspecified nature. The sole requirement is geolocation outside the United States at time of Directive invocation; pursuant to Authorization or Order invocation, surveillance Directives can be undertaken towards persons targeted for intelligence information gathering. Implementation of Directives can take place inside the United States or outside the United States.

No criminal or terrorism investigation of the person need be in play at time of the Directive. All that need be required is that the target be related to an official desire for intelligence information gathering for actions on part of persons involved in surveillance to be granted full immunity from U.S. criminal or civil procedures, under Section 105B(l) of the Act.[10]

Authorization power

Under the bill, the director of national intelligence and the attorney general could authorize the surveillance of all communications involving persons outside the United States (U.S. citizens and non-U.S. citizens). The Foreign Intelligence Surveillance Court, normally the venue for intelligence-related warrants, was limited in power by the Protect America Act to an accept or reject power for government guidelines related to persons (U.S. and non-U.S. citizens) targeted for intelligence information gathering.[9]

1. Purpose of Directive is to Obtain Foreign Intelligence Information

The most significant of five points, comprising guidelines for Authorizing Certain Acquisitions Concerning Persons Outside the United States was that:
  • A significant purpose of the acquisition is to obtain foreign intelligence information.

2. Minimization procedures

One of the five points comprised referred to minimization procedures (how information was collected)
  • the minimization procedures to be used with respect to such acquisition activity meet the definition of minimization procedures under section 101(h).

3. Collaborators and informers required to facilitate in intelligence gathering

Any person or company could be enjoined and requested, on a compulsory basis, to assist with the intelligence information gathering.
  • The acquisition involves obtaining the foreign intelligence information from or with the assistance of a communications service provider, custodian, or other person (including any officer, employee, agent, or other specified person of such service provider, custodian, or other person) who has access to communications, either as they are transmitted or while they are stored, or equipment that is being or may be used to transmit or store such communications;

4. Removal of FISA Strictures and FISA-court (FISC) from warrant authorization; warrants not required

But the most striking aspect of the Protect America Act was the notation that any information gathering did not comprise electronic surveillance. This wording had the effect of removing FISA-related strictures from Protect America Act 2007-related Directives, serving to remove a number of protections for persons targeted, and requirements for persons working for U.S. intelligence agencies.
  • The acquisition does not constitute electronic surveillance
The removal of the term electronic surveillance from any Protect America Act Directive implied that the FISC court approval was no longer required, as FISA warrants were no longer required. In the place of a warrant was a certification, made by U.S. intelligence officers, which was copied to the Court. In effect, the FISC became less of a court than a registry of pre-approved certifications.
Certifications (in place of FISA warrants) were able to be levied ex post facto, in writing to the Court no more than 72 hours after it was made. The Attorney General was to transmit as soon as possible to the Court a sealed copy of the certification that would remain sealed unless the certification was needed to determine the legality of the acquisition.[9]

5. Geolocation procedures: Assuring that the person targeted for intelligence information gathering was outside U.S.

there are reasonable procedures in place for determining that the acquisition of foreign intelligence information under this section concerns persons reasonably believed to be located outside the United States, and such procedures will be subject to review of the Court pursuant to section 105C of this Act;

Reporting requirements

The Attorney General would report to Congress semi-annually with:

  • Reporting incidents of corporation non-cooperation. A description of any incidents of non-compliance with a directive issued.[9]
  • Reporting incidents of non-cooperative persons.Incidents of noncompliance by a specified person to whom the Attorney General and Director of National Intelligence issued a directive.[9]
  • The number of certifications and directives issued in the preceding six months.[9]
  • Reporting procedural failures.Incidents of non-compliance with the guidelines or procedures established for determining that the acquisition concerns persons outside the United States by any entity of the Intelligence Community.[9]

Legislative history

Senator Mitch McConnell introduced the act on August 1, 2007, during the 110th United States Congress. On August 3, it was passed in the Senate with an amendment, 60-28 (record vote number 309).[12] On August 4, it passed the House of Representatives 227-183 (roll number 836).[12] On August 5, it was signed by President Bush, becoming Public Law No. 110-055. On February 17, 2008, it expired due to sunset provision.

Sunset

The Act provided for six months of time for new Directives to be issued;

  • Sunset- Except as provided in subsection (d), sections 2, 3, 4, and 5 of this Act, and the amendments made by this Act, shall cease to have effect 180 days after the date of the enactment of this Act.

FISA Amendments of 2008: Continuance of Protect America Act authorizations and directives under

Whereas it is generally understood that the FISA Amendments of 2008 repealed the Protect America Act, this is not the case for existing directives and authorizations

(1) IN GENERAL- Except as provided in section 404, effective December 31, 2012, title VII of the Foreign Intelligence Surveillance Act of 1978, as amended by section 101(a), is repealed.

Continuance of Protect America Act 2007 Rules for Existing Orders

Section 404 (Transition Procedures) allows for continuance of Protect America Act Sections 105A, 105B and 105C for all existing orders. So for authorizations for intelligence information and directives issued under such authorizations, Protect America Act application continues to apply.

Section 404(a)2(A)subject to paragraph (3), section 105A of such Act, as added by section 2 of the Protect America Act of 2007 (Public Law 110-55; 121 Stat. 552), shall continue to apply to any acquisition conducted pursuant to an order, authorization, or directive referred to in paragraph (1); and
Section 404(a)2(B)sections 105B and 105C of the Foreign Intelligence Surveillance Act of 1978, as added by sections 2 and 3, respectively, of the Protect America Act of 2007, shall continue to apply with respect to an order, authorization, or directive referred to in paragraph (1) until the later of--
  • (i) the expiration of such order, authorization, or directive; or
  • (ii) the date on which final judgment is entered for any petition or other litigation relating to such order, authorization, or directive.

Section 404 (Continuance Procedures) allows for continued authorizations and directives to be renewed under same circumstances indefinitely; It also allowed for continuance of Immunities for persons and corporations (including but not limited to telecoms) under FISA 2008 Amendments.

Section 404(a)7(B) CONTINUATION OF EXISTING ORDERS- If the Attorney General and the Director of National Intelligence seek to replace an authorization made pursuant to section 105B of the Foreign Intelligence Surveillance Act of 1978, as added by section 2 of the Protect America Act of 2007 (Public Law 110-55; 121 Stat. 522), by filing a certification in accordance with subparagraph (A), that authorization, and any directives issued thereunder and any order related thereto, shall remain in effect, notwithstanding the expiration provided for in subsection (a) of such section 105B, until the Foreign Intelligence Surveillance Court (as such term is defined in section 701(b)(2) of the Foreign Intelligence Surveillance Act of 1978 (as so added)) issues an order with respect to that certification under section 702(i)(3) of such Act (as so added) at which time the provisions of that section and of section 702(i)(4) of such Act (as so added) shall apply.

Controversy

The Protect America Act generated a great deal of controversy. Constitutional lawyers and civil liberties experts expressed concerns that the Act authorized massive, wide-ranging information gathering with no oversight. Whereas much focus was placed on communications, the Act allowed for information gathering of all shapes and forms. The ACLU called it the "Police America Act" - "authorized a massive surveillance dragnet", calling the blank-check oversight provisions "meaningless," calling them a "phony court review of secret procedures."[11]

FISC ruling, January 2009

In January 2009, a United States Foreign Intelligence Surveillance Court of Review ruling was made in favor of the warrantless wiretapping role of the Protect America Act 2007, in a heavily redacted opinion released on January 15, 2009, which was only the second such public ruling since the enactment of the FISA Act.[13][14][15][16][17]

See also

References

  1. ^ a b Statement for the Record to the House Judiciary Committee by Director John Michael McConnell September 18, 2007
  2. ^ White House signing ceremony for FISA Amendments Act of 2008.
  3. ^ "Bush Lets US Spy on Callers Without Courts" (Dec. 16, 2005;
  4. ^ Bloomberg.com: Worldwide
  5. ^ U.S. Department of Justice White Paper on NSA Legal Authorities "Legal Authorities Supporting the Activities of the National Security Agency Described by the President" January 19, 2006.
  6. ^ Supreme Court’s Ruling in Hamdan Means Warrantless Eavesdropping is Clearly Illegal, Glenn Greenwald, July 9, 2006
  7. ^ Hamdan and the NSA Domestic Surveillance Program: What Next?, Marty Lederman, July 7, 2006
  8. ^ President's Radio Address - July 28, 2007
  9. ^ a b c d e f g h i GovTrack U.S. – S. 1927 Text of Legislation
  10. ^ a b c Nakashima, Ellen; Warrick, Joby (2007-08-05). "House Approves Wiretap Measure". Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2007/08/04/AR2007080400285.html?nav=rss_politics. Retrieved 2007-08-10. 
  11. ^ a b "ACLU Fact Sheet on the “Police America Act"". ACLU. 2007-08-08. http://www.aclu.org/safefree/nsaspying/31203res20070807.html. Retrieved 2008-04-13. 
  12. ^ a b GovTrack U.S. – S. 1927
  13. ^ Risen, James; Lichtblau, Eric (January 16, 2009). "Court Affirms Wiretapping Without Warrants". New York Times, January 15, 2009. http://www.nytimes.com/2009/01/16/washington/16fisa.html?_r=1&hp. Retrieved January 16, 2009. 
  14. ^ Perez, Evan (January 16, 2009). "Court Backs U.S. Wiretapping". Wall Street Journal, January 16, 2009. http://online.wsj.com/article/SB123206893587088395.html?mod=googlenews_wsj. Retrieved January 16, 2009. 
  15. ^ "Intelligence Court Releases Ruling in Favor of Warrantless Wiretapping". Washington Post, January 15, 2009. January 16, 2009. http://www.washingtonpost.com/wp-dyn/content/article/2009/01/15/AR2009011502311.html?hpid=topnews. Retrieved January 16, 2009. 
  16. ^ "Court ruling endorses Bush surveillance policy". Associated Press, January 15, 2009. http://www.google.com/hostednews/ap/article/ALeqM5g9Q7M6scz4PEW8SuEo_bpOer6ZAQD95NRD1G0. Retrieved January 16, 2009. 
  17. ^ "No. 08-01 IN RE: DIRECTIVE (Redacted) * PURSUANT TO SECTION 105B OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (redacted tect) ON PETITION FOR REVIEW OF A DECISION OF THE UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT". United States Foreign Intelligence Surveillance Court of Review. August 22, 2008. http://www.uscourts.gov/newsroom/2009/FISCR_Opinion.pdf?WT.cg_n=FISCROpinion_WhatsNew_homepage. Retrieved 2009-01-16. 

External links


Source material

Up to date as of January 22, 2010

From Wikisource

Public Law 110-55
by the 110th Congress of the United States
Protect America Act of 2007
Pub.L. 110−55, 121 Stat. 552, S. 1927, enacted August 5, 2007.
Note: This is the original legislation as it was initially enacted. Like many laws, this statute may have since been amended once or many times, and the text contained herein may no longer be legally current. Follow the interlinks within the content or check to see What Links Here for more.


110TH UNITED STATES CONGRESS
1ST SESSION

An Act

To amend the Foreign Intelligence Surveillance Act of 1978 to provide additional procedures for authorizing
certain acquisitions of foreign intelligence information and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

Contents

Section 1. Short Title.

This Act may be cited as the ``Protect America Act of 2007´´.

Sec. 2. Additional Procedure for Authorizing Certain Acquisitions of Foreign Intelligence Information.

The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by inserting after section 105 the following:
``Sec. 105A. Clarification of Electronic Surveillance of Persons Outside the United States.
``Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.
``Sec. 105B. Additional Procedure for Authorizing Certain Acquisitions Concerning Persons Located Outside the United States.
``(a) Notwithstanding any other law, the Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States if the Director of National Intelligence and the Attorney General determine, based on the information provided to them, that—
``(1) there are reasonable procedures in place for determining that the acquisition of foreign intelligence information under this section concerns persons reasonably believed to be located outside the United States, and such procedures will be subject to review of the Court pursuant to section 105C of this Act;
``(2) the acquisition does not constitute electronic surveillance;
``(3) the acquisition involves obtaining the foreign intelligence information from or with the assistance of a communications service provider, custodian, or other person (including any officer, employee, agent, or other specified person of such service provider, custodian, or other person) who has access to communications, either as they are transmitted or while they are stored, or equipment that is being or may be used to transmit or store such communications;
``(4) a significant purpose of the acquisition is to obtain foreign intelligence information; and
``(5) the minimization procedures to be used with respect to such acquisition activity meet the definition of minimization procedures under section 101(h).
``This determination shall be in the form of a written certification, under oath, supported as appropriate by affidavit of appropriate officials in the national security field occupying positions appointed by the President, by and with the consent of the Senate, or the Head of any Agency of the Intelligence Community, unless immediate action by the Government is required and time does not permit the preparation of a certification. In such a case, the determination of the Director of National Intelligence and the Attorney General shall be reduced to a certification as soon as possible but in no event more than 72 hours after the determination is made.
``(b) A certification under subsection (a) is not required to identify the specific facilities, places, premises, or property at which the acquisition of foreign intelligence information will be directed.
``(c) The Attorney General shall transmit as soon as practicable under seal to the court established under section 103(a) a copy of a certification made under subsection (a). Such certification shall be maintained under security measures established by the Chief Justice of the United States and the Attorney General, in consultation with the Director of National Intelligence, and shall remain sealed unless the certification is necessary to determine the legality of the acquisition under section 105B.
``(d) An acquisition under this section may be conducted only in accordance with the certification of the Director of National Intelligence and the Attorney General, or their oral instructions if time does not permit the preparation of a certification, and the minimization procedures adopted by the Attorney General. The Director of National Intelligence and the Attorney General shall assess compliance with such procedures and shall report such assessments to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate under section 108(a).
``(e) With respect to an authorization of an acquisition under section 105B, the Director of National Intelligence and Attorney General may direct a person to—
``(1) immediately provide the Government with all information, facilities, and assistance necessary to accomplish the acquisition in such a manner as will protect the secrecy of the acquisition and produce a minimum of interference with the services that such person is providing to the target; and
``(2) maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the acquisition or the aid furnished that such person wishes to maintain.
``(f) The Government shall compensate, at the prevailing rate, a person for providing information, facilities, or assistance pursuant to subsection (e).
``(g) In the case of a failure to comply with a directive issued pursuant to subsection (e), the Attorney General may invoke the aid of the court established under section 103(a) to compel compliance with the directive. The court shall issue an order requiring the person to comply with the directive if it finds that the directive was issued in accordance with subsection (e) and is otherwise lawful. Failure to obey an order of the court may be punished by the court as contempt of court. Any process under this section may be served in any judicial district in which the person may be found.
`(h)
`(1)
``(A) A person receiving a directive issued pursuant to subsection (e) may challenge the legality of that directive by filing a petition with the pool established under section 103(e)(1).
``(B) The presiding judge designated pursuant to section 103(b) shall assign a petition filed under subparagraph (A) to one of the judges serving in the pool established by section 103(e)(1). Not later than 48 hours after the assignment of such petition, the assigned judge shall conduct an initial review of the directive. If the assigned judge determines that the petition is frivolous, the assigned judge shall immediately deny the petition and affirm the directive or any part of the directive that is the subject of the petition. If the assigned judge determines the petition is not frivolous, the assigned judge shall, within 72 hours, consider the petition in accordance with the procedures established under section 103(e)(2) and provide a written statement for the record of the reasons for any determination under this subsection.
``(2) A judge considering a petition to modify or set aside a directive may grant such petition only if the judge finds that such directive does not meet the requirements of this section or is otherwise unlawful. If the judge does not modify or set aside the directive, the judge shall immediately affirm such directive, and order the recipient to comply with such directive.
``(3) Any directive not explicitly modified or set aside under this subsection shall remain in full effect.
``(i) The Government or a person receiving a directive reviewed pursuant to subsection (h) may file a petition with the Court of Review established under section 103(b) for review of the decision issued pursuant to subsection (h) not later than 7 days after the issuance of such decision. Such court of review shall have jurisdiction to consider such petitions and shall provide for the record a written statement of the reasons for its decision. On petition for a writ of certiorari by the Government or any person receiving such directive, the record shall be transmitted under seal to the Supreme Court, which shall have jurisdiction to review such decision.
``(j) Judicial proceedings under this section shall be concluded as expeditiously as possible. The record of proceedings, including petitions filed, orders granted, and statements of reasons for decision, shall be maintained under security measures established by the Chief Justice of the United States, in consultation with the Attorney General and the Director of National Intelligence.
``(k) All petitions under this section shall be filed under seal. In any proceedings under this section, the court shall, upon request of the Government, review ex parte and in camera any Government submission, or portions of a submission, which may include classified information.
``(l) Notwithstanding any other law, no cause of action shall lie in any court against any person for providing any information, facilities, or assistance in accordance with a directive under this section.
``(m) A directive made or an order granted under this section shall be retained for a period of not less than 10 years from the date on which such directive or such order is made.´´.

Sec. 3. Submission to Court Review and Assessment of Procedures.

The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by inserting after section 105B the following:
``Sec. 105C. Submission to Court Review of Procedures.
``(a) No later than 120 days after the effective date of this Act, the Attorney General shall submit to the Court established under section 103(a), the procedures by which the Government determines that acquisitions conducted pursuant to section 105B do not constitute electronic surveillance. The procedures submitted pursuant to this section shall be updated and submitted to the Court on an annual basis.
``(b) No later than 180 days after the effective date of this Act, the court established under section 103(a) shall assess the Government's determination under section 105B(a)(1) that those procedures are reasonably designed to ensure that acquisitions conducted pursuant to section 105B do not constitute electronic surveillance. The court's review shall be limited to whether the Government's determination is clearly erroneous.
``(c) If the court concludes that the determination is not clearly erroneous, it shall enter an order approving the continued use of such procedures. If the court concludes that the determination is clearly erroneous, it shall issue an order directing the Government to submit new procedures within 30 days or cease any acquisitions under section 105B that are implicated by the court's order.
``(d) The Government may appeal any order issued under subsection (c) to the court established under section 103(b). If such court determines that the order was properly entered, the court shall immediately provide for the record a written statement of each reason for its decision, and, on petition of the United States for a writ of certiorari, the record shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision. Any acquisitions affected by the order issued under subsection (c) of this section may continue during the pendency of any appeal, the period during which a petition for writ of certiorari may be pending, and any review by the Supreme Court of the United States.´´.

Sec. 4. Reporting to Congress.

On a semi-annual basis the Attorney General shall inform the Select Committee on Intelligence of the Senate, the Permanent Select Committee on Intelligence of the House of Representatives, the Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of Representatives, concerning acquisitions under this section during the previous 6-month period. Each report made under this section shall include—
(1) a description of any incidents of non-compliance with a directive issued by the Attorney General and the Director of National Intelligence under section 105B, to include—
(A) incidents of non-compliance by an element of the Intelligence Community with guidelines or procedures established for determining that the acquisition of foreign intelligence authorized by the Attorney General and Director of National Intelligence concerns persons reasonably to be outside the United States; and
(B) incidents of noncompliance by a specified person to whom the Attorney General and Director of National Intelligence issue a directive under this section; and
(2) the number of certifications and directives issued during the reporting period.

Sec. 5. Technical Amendment and Conforming Amendments.

(a) In General.—
Section 103(e) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(e)) is amended—
(1) in paragraph (1), by striking ``501(f)(1)´´ and inserting ``105B(h) or 501(f)(1)´´; and
(2) in paragraph (2), by striking ``501(f)(1)´´ and inserting ``105B(h) or 501(f)(1)´´.
(b) Table of Contents.—
The table of contents in the first section of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by inserting after the item relating to section 105 the following:
``105A. Clarification of Electronic Surveillance of Persons Outside the United States.
``105B. Additional Procedure for Authorizing Certain Acquisitions Concerning Persons Located Outside the United States.
``105C. Submission to Court Review of Procedures.´´.

Sec. 6. Effective Date; Transition Procedures.

(a) Effective Date.—
Except as otherwise provided, the amendments made by this Act shall take effect immediately after the date of the enactment of this Act.
(b) Transition Procedures.—
Notwithstanding any other provision of this Act, any order in effect on the date of enactment of this Act issued pursuant to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) shall remain in effect until the date of expiration of such order, and, at the request of the applicant, the court established under section 103(a) of such Act (50 U.S.C. 1803(a)) shall reauthorize such order as long as the facts and circumstances continue to justify issuance of such order under the provisions of the Foreign Intelligence Surveillance Act of 1978, as in effect on the day before the applicable effective date of this Act. The Government also may file new applications, and the court established under section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)) shall enter orders granting such applications pursuant to such Act, as long as the application meets the requirements set forth under the provisions of such Act as in effect on the day before the effective date of this Act. At the request of the applicant, the court established under section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)), shall extinguish any extant authorization to conduct electronic surveillance or physical search entered pursuant to such Act. Any surveillance conducted pursuant to an order entered under this subsection shall be subject to the provisions of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), as in effect on the day before the effective date of this Act.
(c) Sunset.—
Except as provided in subsection (d), sections 2, 3, 4, and 5 of this Act, and the amendments made by this Act, shall cease to have effect 180 days after the date of the enactment of this Act.
(d) Authorizations in Effect.—
Authorizations for the acquisition of foreign intelligence information pursuant to the amendments made by this Act, and directives issued pursuant to such authorizations, shall remain in effect until their expiration. Such acquisitions shall be governed by the applicable provisions of such amendments and shall not be deemed to constitute electronic surveillance as that term is defined in section 101(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(f)).


Approved August 5, 2007.

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Protect America Act of 2007.

Legislative History

  • CONGRESSIONAL RECORD, Vol. 153 (2007):
    • Aug. 3, considered and passed Senate.
    • Aug. 4, considered and passed House.

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