A Look at Protect America Act of 2007

Today, I want to take a closer look at the Protect America Act of 2007 that President Bush just recently signed into law. I'll be honest with you. I read it through the first time and thought to myself, "That seems pretty benign. I don't see what people are getting themselves all twisted up in a knot over." I decided to ponder the bill for a few days to see if anything would surface... and it did.

 

Let's look at a couple of the new amendments to FISA. The first section of the bill takes the definition of "electronic surveillance" and essentially guts any protections written into it that kept the government from listening in on your conversations at random. I'll explain. The PAA of 2007 removes any protection found under the Fourth Amendment for your communications by reclassifying your conversations if they involve someone outside of the United States and they are not an American. It says that if the target of surveillance (presumably international bad guys) is located outside of the United States then that eavesdropping will not be considered "electronic surveillance" as defined under FISA. In other words, if you're the person at the other end of that telephone call and you're an American and you're standing on U.S. soil, you still lose all your Fourth Amendment protections under FISA--because you are not the target of surveillance. Here is the new section, word for word:

CLARIFICATION OF ELECTRONIC SURVEILLANCE OF PERSONS OUTSIDE THE UNITED STATES

 

Sec. 105A. 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.

We must remember that FISA was created to protect the communications of American Citizens, regardless of whom they were talking with. If you read the definitions for electronic surveillance, it becomes plain that the intent of Congress when it wrote FISA was to maintain your Fourth Amendment protections from unreasonable searches and seizures when it came to government's eavesdropping:

36USC1801(f) "Electronic surveillance" means--

 

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

This covers eavesdropping from outside the U.S. on an American inside or outside the U.S. It states that if this occurs and that person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, then it is considered electronic surveillance and falls under FISA.

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

This covers eavesdropping from within the U.S. on an American regardless of whether he's sending or receiving the transmission without his prior consent inside the U.S.

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or

This covers wireless eavesdropping on Americans inside the U.S. It states that if this occurs and those persons have a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, then it is considered electronic surveillance and falls under FISA.

(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

And the final clause to sweep up any the first three may have missed. This clause acts basically like an umbrella, stating that the use of any eavesdropping equipment or techniques where an American has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, then it is considered electronic surveillance and falls under FISA.

 

Time and time again Congress has stated that if the message involved the communications of an American, that American had a "reasonable expectation of privacy" and, therefore, a warrant issued by FISC would be required to conform with his Fourth Amendment protections. Anything else would be a violation of the Constitution and illegal.

 

Now, we have this Protect America Act of 2007 bill which attempts to rewrite the Constitution and FISA. The bill attempts to draw a legal line through a conversation that says if we're eavesdropping on the half of a communication initiated by a foreigner, regardless of who's at the other end, we don't need a warrant from FISC. But, if you read the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It makes no such distinction. The protections are all-encompassing. It would be like if you bought a house with your friend who happens to be a foreigner. Let's say the police decide your friend is part of a bootlegged software smuggling ring. Would it make sense for them to break your door down without a warrant, and explain to you that you have no standing to demand a warrant because they are not searching your half of the home? That, obviously, is absurd. The same can be said of this provision that attempts to ignore the half of the conversation that FISA plainly and clearly states requires a warrant. Put simply: if an American is involved a warrant is required.

 

I intended to look at more of this bill, but this post has grown to considerable length. We'll leave it here and pick up the rest in the next post.