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"Protect America Act of 2007" easily pass through Congress; kills limits on wiretapping foreign targets

S. 1927, better known as the Protect America Act of 2007, sailed through congress in just four days since its introduction. Among other things, the bill permits the Attorney General and Director of National Intelligence to authorize spying on foreign intelligence targets for up to one year in foreign countries without requiring a court ordered warrant.

Under normal circumstances, the authorization requires certification that “there are reasonable procedures in place” for determining that the target is indeed on foreign soil. There is an exception allowing surveillance to take place immediately if “time does not permit.” However, certification is obtainable within 72 hours after-the-fact.

The bill also permits the FISA court to direct domestic third parties, like internet and telephone providers, to assist intelligence-gathering efforts. Anyone so directed would be required to comply by providing the government with “all information, facilities, and assistance necessary” to the court’s intelligence interests. In return for their assistance, they receive reasonable compensation “at the prevailing rate” and immunity from lawsuits arising from their assistance.

Telecom executives are most likely to receive requests as the run the infrastructure that targeted communications may pass through, Ars Technica said. The bill effectively grants limitless wiretaps on foreign targets as long as the government has reasonable belief they[foreign targets] are on foreign soil.

The bill is thought to be crafted hastily in response to a recent secret court ruling and directed in such a way as to pass through Congress before its summer recess. In speaking with Fox News, House Minority Leader John Boehner (R-OH) said, “there's been a ruling, over the last four or five months, that prohibits the ability of our intelligence services … from listening in to two terrorists in other parts of the world where the communication could come through the United States.”

An article in the LA times, citing an anonymous official, gave more specifics. The ruling came from the Foreign Intelligence Surveillance (FISA) Court, which had recently ruled to block a “basket warrant” that covered multiple targets in one heap as opposed to targets selected on an individual basis. “One FISA judge approved this, and then a second FISA judge didn’t,” the anonymous official said.

A sunset provision limits the bill’s effective duration to 180 days after it takes effect, and added as a last minute negotiation as both parties cannot agree on the language for final legislation. As such, the bill gives the Bush administration almost free reign to spy on foreign nationals and their communications for up to 18 months from the date of S. 1927’s enactment, counting the six month sunset and the one-year maximum surveillance time.

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empty promise of immunity
By lplatypus on 8/8/2007 3:17:10 AM , Rating: 2
These spying activities would still probably be illegal in the country where they occur. If a US company is forced to assist with such activity, the guarantee of legal immunity couldn't extend to lawsuits under the law of the target country, which would be a problem for companies which operate in that target country. Am I missing something here?




RE: empty promise of immunity
By l3ored on 8/8/2007 3:44:58 AM , Rating: 2
well it would be a lot like RIAA lawsuits against companies like the pirate bay and allofmp3. (nothing but a big bag of roffles)


RE: empty promise of immunity
By Samus on 8/8/2007 3:50:24 AM , Rating: 2
anyone seen bourne ultimatum. reminds me of the CIA 'keyword' room.


RE: empty promise of immunity
By Fritzr on 8/8/2007 4:52:20 AM , Rating: 2
Don't know about the CIA, but USAF does have keyword rooms. Best story I've heard about this one was a kid lived on base. Started every phone call with a half dozen or so keywords :P


RE: empty promise of immunity
By alifbaa on 8/8/2007 6:35:06 AM , Rating: 5
Yeah, you're missing a little. I am by no means a true expert on the legalities of intelligence collection, but I do have a little "experience" in this stuff. Here's my long and drawn out understanding of this law:

This law allows intelligence agencies to compel communications companies within the US to tap data flowing through the US involving a what is "reasonably believed" to be a foreign source with "reason for suspicion." This could involve a suspect of what is believed to be foreign location communicating to or from a US person or it could involve foreign to foreign communication that passes through the US.

Foreign to foreign communications not passing through the US are and always have been nearly the complete purview of the intelligence community and are not subject to very many laws or congressional oversight actions. They tend to be subject to what could be termed "rules of engagement" set down by the heads of the various agencies and a few executive orders. These ROE's are much more flexible and can change rapidly based on political conditions. The violation of the ROE's carry a lot of significant career penalties but generally don't involve prosecution risks unless they involve an illegal collection against a US person with a "legally reasonable" expectation of privacy. Inside the US, this expectation is codified by law and is almost always illegal. Outside the US, it gets a lot more murky depending on a number of classified factors. Under almost all circumstances, information gained against a US person, especially a US citizen, cannot ever be used against the person in court.

On foreign soil, it's the wild west, and most countries recognize that everyone can and will do everything they can to collect as much as possible on everyone and anyone they want to. Beyond preventative measures, countries don't fight this system because they do it themselves and want to preserve their own ability to do so.

Previously, foreign to foreign communications passing through the US fell in with general intelligence activities and was completely legal and subject to fairly minimal oversight. This law increases the oversight of those activities and brings them to the same level as communications that involve a US person. In my mind, this is a fairly significant degradation of the intelligence community's right to collect information, and is more restrictive than the international norm.

The justification for this is that it is possible for even purely US-US communication to be intentionally or unintentionally redirected through multiple foreign areas before coming back into the US. In this circumstance, it is reasonable that the US could believe either or both communicants to be of foreign origin and of a suspicious nature and wind up collecting on a US person without knowing it. This was never envisioned in the original FISA statute and lawmakers (correctly) felt it needed to be addressed.

The primary focus of this law is that intelligence services can collect on communications involving people inside the United States. They cannot directly target people in the United States, but if they are collecting on a foreign target and a US person becomes involved, they can continue the activity without fear of violating US law.

The law also provides for a periodic review of the methods by which the government uses to collect this information to be conducted by the FISA court. The law does not require the government to release the number of US persons involved or any specific information gained to the court although the court could and has a history ordering the US to do so.

The FISA court is convened in secret, its rulings are generally not released, and any involved entities subject to its rulings are usually subject to penalties and/or jail time if they make any aspect of its proceedings or decisions public.

Previous to the Patriot Act, collection against any US individual by intelligence agencies was illegal under just about all circumstances. After the Patriot Act, doing things like this became a bit more easy to do, but probably required a warrant from the FISA court depending on how you read the 1979ish FISA statute that attempted to limit such activities. The perception in the post 9/11 government was that the FISA statute didn't envision the communications environment we have today and needed to be updated. This perception was probably correct.

It's still unclear to me if the law allows incriminating evidence that is discovered against the US person collected under these circumstances to be used in a criminal prosecution.

As for an international company being held liable for its activities, most countries recognize that they do not have jurisdiction over activities conducted outside of its borders. That's not to say they couldn't hold some sort of trial, but all they would succeed in doing is forcing the company to pull out and make its services suddenly unavailable.

Also, American communications companies generally don't have much presence outside of the US in an operational role. They do a lot of consulting and design and construction of communications systems, but the system itself is usually owned and operated by more localized or even nationalized companies. That certainly shouldn't intimate we don't have any capabilities inside of foreign systems, but as I said before that just doesn't fall under the purview of this law so long as the collection itself doesn't occur on US soil.

I realize this all sounds a bit "cloak and dagger," but at least now there is congressional approval and judicial oversight of these activities whereas before there was next to nothing besides our executive branch leaders' personal opinions of right and wrong. My personal opinion as someone with a fair bit of experience in this stuff is that we need the freedom to use any means available to get the information we need, but we should never be allowed to do so without another branch of government looking over our shoulder to at least some extent when it involves US soil or citizens.


RE: empty promise of immunity
By Treckin on 8/8/2007 9:14:25 AM , Rating: 2
two points,
one. "US telecom companies don't have a significant presence in other nations...

FALSE: Minus the state run telecom industries run in nations such as Argentina, almost all telecom entities are global conglomerates, which can be reduced through various owning corporations to 3-4 major telecom players, of which 3 if not all 4 are US centered.

Two. There is the proviso in the patriot act which allows tapping to go on in the absence of any court warrant, bypassing FISA completely. this has achieved cult status among geeks and in the media, knows as NSL's, or national security letters. The clause essentially removed judicial oversight of wiretapping by the FBI and other federal surveillance agencies observing the communications and communications records of US nationals, creating a unitary executive... This wiretapping bill further expands this coverage beyond its previous scope under that patriot act, allowing the non-emergency communications to be observed also without warrants. IN actuality, the bill in a sort of wind-fall for the intelligence community, neutering FISA as a ruling body. Now, under law, and contest that FISA may have for wiretapping activities can be thrown out under this enactment


RE: empty promise of immunity
By spluurfg on 8/8/2007 9:24:17 AM , Rating: 2
Point 1: If there are only three or four, please name them?


RE: empty promise of immunity
By alifbaa on 8/8/2007 9:57:50 AM , Rating: 4
Regardless of who owns what telecom company, the point I was making was that this and pretty much every other law have absolutely no bearing on activities taking place on foreign soil involving citizens of other countries residing in other countries.

As for your point about NSLs, those are a law enforcement -- not intelligence -- tool designed for emergency use only when the FISA court cannot be convened in a timely manner. They remain largely untested in court as a means of gathering evidence.

You are right, though, they do largely bypass the court system in the short term. The theory behind them is that the executive is required to exercise care and judgment prior to issuing an NSL and its validity will have to stand up to court scrutiny should a legal proceeding arise from its use either via a criminal prosecution or an entity filing a civil complaint.

You also probably already know there have been some questionable uses of NSLs, such as when the FBI was investigating a possible terrorist plot in Las Vegas and subpoenaed all the casinos' player records, video, and hotel logs along with airlines' passenger manifests. They took in data on hundreds of thousands of people -- many American citizens with absolutely no reason for suspicion. To make matters worse, the government has entered into data-sharing agreements with private data mining firms which potentially makes the information they gained through an NSL both indelibly recorded and open to all sorts of completely unintended uses.

There is no doubt that NSLs are a potentially dangerous tool. I think the government is getting better at using them appropriately as it gains more experience with them. If it were up to me though, I probably would have looked at making the court system more readily available and appropriate for these problems before I would have made NSL's possible, but when the Patriot Act was written the political climate wasn't in the most cautious mood.


When would this happen?
By dubldwn on 8/8/2007 2:19:09 AM , Rating: 2
quote:
listening in to two terrorists in other parts of the world where the communication could come through the United States

I'm confused. Does anyone know why the communication of two terrorists would come through the United States?




RE: When would this happen?
By tigerman81 on 8/8/2007 2:25:38 AM , Rating: 3
Transmissions are not limited to just phone communication. It also includes email and pretty much all other forms of electronic communication. As you know America serves are part of the Internet backbone. A great deal of data transmissions are routed through various servers located here in the US. This bill is meant to specify that federal agents can intercept any "terrorist" related communication which runs through our servers, which believe it or not, is alot.


RE: When would this happen?
By Griswold on 8/8/2007 4:00:32 AM , Rating: 1
If they use email (possibly even plain text) to communicate, they deserve being spied on just because of their dumbness. :p


RE: When would this happen?
By nineball9 on 8/8/2007 7:01:12 AM , Rating: 2
The communication directy above is written in plain text.


RE: When would this happen?
By Polynikes on 8/8/2007 10:58:32 AM , Rating: 2
OMG, so is yours! OMG, so is mine! I won't let them spy on me!!! *Runs to find encryption software*


RE: When would this happen?
By mindless1 on 8/8/2007 11:56:44 AM , Rating: 2
Oh? Do tell how you'd go about decrypting a high encryption email within your great grandchildren's lifetime?


RE: When would this happen?
By bfonnes on 8/8/2007 8:23:35 PM , Rating: 2
Haven't you read Digital Fortress by Dan Brown? ;)


RE: When would this happen?
By Oregonian2 on 8/8/2007 1:57:02 PM , Rating: 2
When my wife forwards email to me (we being in our adjacent "play" rooms) it all passes through at least one foreign country on the way to me (at very least from here in Oregon to Toronto, to Scottsdale, Ariz, and back to Oregon with possible side trips to who knows where in its several second trip.


By alifbaa on 8/8/2007 6:49:48 AM , Rating: 4
This law does not allow any intelligence agency to specifically target any US person. Instead, it allows for a foreign person on foreign soil targeted because of "reasonable suspicion" of being a threat to security to be collected on when he communicates in a manner that involves US soil. Information gained against the US person will be purely coincidental and can be used in court only under very limited circumstances.

The fact is that this is largely a congressional Democrat written bill. It simply is illogical that they would write a law that gives a Republican president that kind of power -- it only serves to weaken themselves. I'm as much for civil liberties as anyone else, but save the conspiracy theories for somewhere else and take the time to look at the facts.


By Rovemelt on 8/8/2007 12:35:28 PM , Rating: 1
The bill was sponsored by Mitch McConnel and C. Bond, both republicans and for who supported it:

http://clerk.house.gov/evs/2007/roll836.xml

Yeas Nays no vote
Democratic 41 181 9
Republican 186 2 14

This was a republican bill, dude.