RL34143
P.L. 110-55, the Protect America Act of 2007: Modifications to the Foreign Intelligence Surveillance Act
August 23, 2007

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Federation of American Scientists

Summary:

On August 5, 2007, P.L. 110-55, the Protect America Act of 2007, was signed into law by President Bush, after having been passed by the Senate on August 3 and the House of Representatives on August 4. The measure, introduced by Senator McConnell as S. 1927 on August 1, makes a number of additions and modifications to the Foreign Intelligence Surveillance Act of 1978 (FISA), as amended, 50 U.S.C. §§ 1801 et seq., adds additional reporting requirements, and sunsets in 180 days. This report describes the provisions of P.L. 110-55, discusses its possible impact on and parallels to existing law, and summarizes the legislative activity with respect to S. 1927, H.R. 3356, and S. 2011. The Foreign Intelligence Surveillance Act of 1978 was enacted in response both to the Committee to Study Government Operations with Respect to Intelligence Activities (Church Committee) revelations with regard to past abuses of electronic surveillance for national security purposes and to the somewhat uncertain state of the law on the subject. In creating a statutory framework for the use of electronic surveillance to obtain foreign intelligence information, the Congress sought to strike a balance between national security interests and civil liberties. Critical to an understanding of the FISA structure are its definitions of terms such as "electronic surveillance" and "foreign intelligence information." P.L. 110-55 limits the construction of the term "electronic surveillance" so that it does not cover surveillance directed at a person reasonably believed to be located outside the United States. It also creates a mechanism for acquisition, without a court order under a certification by the Director of National Intelligence (DNI) and the Attorney General, of foreign intelligence information concerning a person reasonably believed to be outside the United States. The Protect America Act provides for review by the Foreign Intelligence Surveillance Court (FISC) of the procedures by which the DNI and the Attorney General determine that such acquisitions do not constitute electronic surveillance. In addition, P.L. 110-55 authorizes the Attorney General and the DNI to direct a person with access to the communications involved to furnish aid to the government to facilitate such acquisitions, and provides a means by which the legality of such a directive may be reviewed by the FISC petition review pool. A decision by a judge of the FISC petition review pool may be appealed to the Foreign Intelligence Surveillance Court of Review, and review by the U.S. Supreme Court may be sought by petition for writ of certiorari. The report will be updated should subsequent developments require it.