Protect America Act of 2007
The Protect America Act of 2007,, is a controversial amendment to the Foreign Intelligence Surveillance Act that was signed into law by U.S. President George W. Bush on August 5, 2007. It removed the warrant requirement for government surveillance of foreign intelligence targets "reasonably believed" to be outside the United States. The FISA Amendments Act of 2008 reauthorized many provisions of the Protect America Act in Title VII of FISA.
Background
In December 2005, the New York Times published an article 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. 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a criminal violation of FISA.The Bush administration maintained that the warrant requirements of FISA were implicitly superseded by the subsequent passage of the Authorization for Use of Military Force Against Terrorists, and that the President's inherent authority under Article II of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.
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 He suggested that the current law was "badly out of date" – despite amendments passed in October 2001 – and did not apply to disposable cell phones and Internet-based communications.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".
On August 3, 2007, the Senate passed the bill in a vote of 60 to 28. The House followed by passing the bill, 227–183 on August 3, 2007.
The bill altered the original 1978 law in many ways, including:
Warrant and notification requirements
The bill amended FISA to substitute the requirement of a warrant to conduct surveillance with a system of NSA internal controls.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."
Domestic wiretapping
The bill allowed the monitoring of all electronic communications of "Americans communicating with foreigners who are the targets of a U.S. terrorism investigation" 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.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.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 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. 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 of the Act.
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. 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 targeted for intelligence information gathering.1. Purpose of Directive
2. Minimization procedures
3. Requirement to assist
4. Removal of FISA Strictures from warrant authorization; warrants not required
5. Geolocation procedures
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.
- 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.
- The number of certifications and directives. Issued in the preceding six months.
- 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.
Legislative history
Sunset
The Act provided for six months of time for new Directives to be issued;FISA Amendments of 2008
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.Continuance of Protect America Act 2007 Rules for Existing Orders
Section 404 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 allows for continued authorizations and directives to be renewed under same circumstances indefinitely; It also allowed for continuance of Immunities for persons and corporations under FISA 2008 Amendments.