How The Protect America Act Will Affect Business

Document Date: August 29, 2007

How will the recent changes to FISA affect business?

On August 4, 2007 Congress changed the nature of the relationship American citizens have with their government. The Fourth Amendment was written to guarantee the right of the people “to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures,” or put more simply, the right to be left alone absent probable cause and a warrant issued by a neutral magistrate. But now our government can seize the private international communications of all Americans and search them for “foreign intelligence information” without any suspicion that anyone has done anything wrong.

Congress accomplished this by altering the definition of “electronic surveillance” so as to exclude any government eavesdropping that is directed at an entity “reasonably believed” to be outside the United States from coverage under the protections of the Foreign Intelligence Surveillance Act. Now when an American is calling his aunt in Italy, or e-mailing his business associate in Canada, or engaging in an Internet chat where one of the parties could be overseas- even if it is other Americans overseas- the government can listen in without any court oversight. This is a fundamental change that has serious ramifications for all Americans, but especially for American companies that do business in the global economy. Congress gave the government this eavesdropping authority not to listen to terrorists, but rather to collect “foreign intelligence,” which is loosely defined in FISA to mean any information that “relates to” the conduct of U.S. foreign affairs. Make no mistake, this means business.

The rapid expansion of e-commerce now allows small mom-and-pop companies in the heartland of America to sell their products in foreign markets. Because of the bill Congress passed international business transactions can now be monitored by the government. Globalization and free trade agreements have made it easier for U.S. companies to have an international workforce. Now communications with foreign employees can be monitored by the government. The “flattening” of the world opened new opportunities for Americans to invest in growing world markets and to provide charitable gifts to areas in desperate need. International investments and philanthropy can now be monitored by the government- not because there is suspicion of wrong doing, but simply because the government wants foreign intelligence information. Congress could have easily restricted this new authority to investigations of suspected terrorists, but it did not.

Any businessperson can easily see the ramifications of such unwarranted surveillance. How are trade secrets going to be protected? Are negotiations regarding government contracts being conducted in good faith, or are they being compromised by intercepted communications? How are confidential relationships- employer/employee; attorney/client; journalist/source; doctor/patient; priest/penitent; husband/wife- going to be protected? How are these captured communications going to be used against Americans and their businesses? The answer is nobody knows because it’s all being conducted behind a massive cloak of secrecy.

Come September, the American Civil Liberties Union will continue its fight to restore the privacy rights of all Americans.

For the ACLU’s fact sheet on the “Protect America Act,” go to:

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