ACLU Analysis of the Protect America Act

Document Date: August 29, 2007

S. 1927, “The Protect America Act”

AG= Attorney General
FISA= Foreign Intelligence Surveillance Act
FISC = Foreign Intelligence Surveillance Court
FISCR = Foreign Intelligence Surveillance Court of Review

Section 1:

Names the bill, “The Protect America Act of 2007.”

Section 2:

Section 105A: Clarifies, that “Nothing in the definition of electronic surveillance under FISA section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the U.S.”

U.S. persons are no longer protected from warrantless surveillance as long as the underlying premise is that the surveillance is “directed at” a person overseas. Now that such a collection is not “electronic surveillance,” it is not subject to the court order requirements that have been the cornerstone of FISA for 30 years.

In effect, the government may now scoop up all communications coming into or out of the United States, as long as it is targeting no one American in particular and the program is “directed at” the foreign end of the communication. Whether the target or not, American phone calls, emails and internet use will be recorded by our government, and without any suspicion of wrongdoing.

Section 105B “Additional Procedure for Authorizing Certain Acquisitions”: Subsection (a) puts the new carve out into effect as it permits the AG or the DNI to issue year long program orders to obtain “foreign intelligence information from or with the assistance of a communications service provider” that “concern” a person outside of the U.S. The requirements are that (1) there are reasonable procedures in place for determining that the information concerns person outside of the U.S., (2) that it is not otherwise defined as electronic surveillance under FISA, (3) the information is gathered from a communications company, custodian or other person in control of the communication or record, (4) a significant purpose is gathering foreign intelligence information, and (5) the minimization procedures under 50 USC 1801(h) apply.

Subsection (b) states that these new orders need not even specify the “facilities, places, premises or property” at which the information collection will be directed.

This is simply an unconstitutional program warrant that doesn’t state with specificity the things to be searched or seized. Such warrants – whether issued by a court or an executive official, have long been held unconstitutional under the Fourth Amendment.

The flaw is exacerbated by the fact that there is no court supervision whatsoever.

Further, it relies solely on “minimization procedures” to protect the American end of communications. Minimization procedures have always been secret – no one knows what they require or how much protection they offer. There is nothing in the referenced 50 USC 1801(h) that would require American communications to be destroyed or in any way prevent them from being used and disseminated. It is ultimately a “trust us” scenario where the AG gets to secretly decide how to handle U.S. information.

Subsection ( c ) directs the AG to submit a copy of the orders to the FISC, which is pointless because the order stays sealed and is not reviewed by the FISC until it is challenged by someone who has received such an order.

Subsection (d) directs the AG to inform the Intelligence Committees of whether it is complying with its own secret minimization procedures. As discussed above, minimization procedures are inadequate to protect Americans’ privacy.

Subsections (e) – (g) create the enforcement mechanism, allowing the AG or DNI to direct a communications company to immediately allow access to its facilities. If the company refuses, the AG may seek a contempt of court ruling from the FISC.

Subsection (e) is perhaps one of the most dangerous provisions of the bill. It allows the government to directly tap into telecommunications facilities. This turns FISA on its head. Our privacy laws have always demanded a strict separation between our government and our private communications. Until now, those who hold access to our private communications had an independent duty to protect our privacy and only release communications in response to a lawful order, and then only respond with what was precisely asked for. For the first time, the government will have direct, unfettered access to US communications without any filter by private industry.

Subsections (h) – (k) allow a recipient of one of these new orders to challenge the order before the FISC and FISCR, and in the case of the government, even the Supreme Court. Review shall be to determine whether “such directive does not meet the requirements of [105B] or is otherwise unlawful.” It also creates unprecedented secrecy by directing the court to allow the government to submit any evidence it wants ex parte and in camera.

Subsection (l) provides prospective immunity for carriers who provide the government assistance in carrying out these new programs. It is consistent with existing law that provides immunity so long as the provider is acting in response to a statutorily sanctioned government request.

Subsection (m) directs all orders to be retained for 10 years.

Section 3

Section 105C “Submission to Court Review of Procedures”: Subsection (a) directs the AG to submit to the FISC procedures by which this new program will “not constitute electronic surveillance” – or in other words, be directed at targets or facilities overseas. The first submission must occur within four months, and then annually after that.

This submission is once again useless – the government need not report to the court how many Americans are wiretapped or what is done with those communications.

Subsections (b) and ( c ) further direct the FISC, by February of 2008, to determine whether the procedures are “reasonably designed” to ensure that acquisitions are “directed at” people overseas. Even this low review is judged on the “clearly erroneous” standard.

Again, the court isn’t even considering whether the new program infringes on Americans’ communications. Nor does the court get to review how captured American communications will be used or disseminated. It simply gets to see whether the government is following its own secret, self-created procedures, which by law, need not protect American communications. Even if the court wanted to find that the government is not reasonably targeting people overseas, it can only stop surveillance if these new procedures are “clearly erroneous” for this stated goal.

Subsection (d) allows the government to appeal any unfavorable rulings by the FISC on its procedures to the FISCR.

Section 4

Reporting to Congress. Twice a year the government must report to the Intelligence and Judiciary Committees. Those reports shall include whether anyone in the intelligence community broke the above mentioned secret, self-created rules; whether any recipient of an order refused to participate in the new warrantless program; and the total number of program orders issued by the AG and the DNI.

Just like the submission to the FISC, the reporting to Congress will provide no meaningful oversight. Congress will still be in the dark about how many Americans are having their communications picked up, and how those communications are being used by the government.

Section 5

Technical Amendments

Section 6

Continuation and Sunsets. Subsection (a) puts the bill into effect immediately.

Subsection (b) mandates that surveillance already authorized under previous FISA standards only be reauthorized under those previous standards, and not be rolled into this new program.

Subsection (c) creates a 6 month sunset.

Subsection (d) mandates that any order in effect on the day of the sunset shall be in effect until its court ordered expiration date, which may be up to a year

It other words, orders issued in February of 2008 – immediately before the sunset – will be in effect until February of 2009, keeping this program alive through the end of the Bush Administration.

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