Privacy and the Protect America Act

Michael Policy

A History Lesson in Privacy

In 1974, Richard Nixon resigned as President of the United States. He is the only president to have done this. He did so because it was discovered that several years earlier, during his campaign to get re-elected, he used the powers of his executive office to conduct wiretapping on his Democratic opponents. The investigation revealed that the FBI, CIA, and even the NSA (please don’t be surprised), helped him do so. Four years after his resignation, Congress passed the Foreign Intelligence Surveillance Act (FISA). This bill was directly aimed at preventing any surveillance on American citizens. FISA did this by limiting wiretapping to foreign surveillance activities and surveillance of governments and foreign agents that are known to be hostile to the United States. It required law enforcement to obtain a search warrant based on probable cause from a third party. For this, FISA created the FISA court, or FISC. Because this law dealt wholly with foreign powers that threatened national security, the court operated under complete secrecy since its inception.

Not a bad idea to pass this FISA thing, right? Now, jump forward to July 28, 2007 when President G.W. Bush introduced a bill that would drastically alter and “modernize” the FISA in the form of the Protect America Act of 2007. Bush introduced this bill as one that would allow the U.S. government to keep up with technology that terrorists are using since communication methods had changed quite a bit since the 1970’s.

Enter: The Protect America Act

This bill has been shady from the get go. It was introduced just days before Congress’s August recess, passing through both houses of Congress and across Bush’s desk in just over a week.

The Protect America Act provides for warrantless wiretapping, as long as FISC is notified within 72 hours. The notification would be sealed, even to the court itself, and only opened in the event that its legality is questioned. The Protect America Act vaguely, and inauspiciously, protects citizens’ privacy by saying “surveillance must be directed at persons reasonably believed to be outside the U.S.” This warrantless wiretapping applies to all foreign communication, even if an American, in America, is on one end of the call. . This doesn’t apply to just phones, however, it applies to any electronic communication. The surveillance often times captures domestic correspondence as well, due to the nature in which internet travels. The bill also changed the requirements for beginning surveillance, exploding the reasons for wiretapping well beyond national security. Even the length of surveillance has been altered. The Director of National Intelligence and the Attorney General have the power to authorize unlimited surveillance for the period of a year; instead of the prior requirement for receiving individual warrants for specific reasons.

Oversight of surveillance took a huge hit too. Congress is not required to report on the overall program and its effectiveness, but only on “incidents of non-compliance.” Meaning that the NSA is only required to report when they themselves feel that they have not fully complied. Like a kid who was only supposed to have one cookie, but took three, telling on himself. Yeah, not going to happen. And according to Last Week Tonight with John Oliver, over 35,000 applications for information have been requested, FISC denied only 12.

One Small Step for Mankind

Admittedly, some of the free range given by the Protect America Act has been walked back by the FISA Amendments Act of 2008. But as a whole, the problem still persists, and on a large scale. Particularly, section 702 of the act, where the PRISM program (NSA’s main source of information) gets its authority. Americans now fight an uphill battle. The government learned many lessons from the Watergate scandal and positioned themselves to not get caught red handed again by passing a vaguely worded bill that limits oversight. As we all know, once the government seizes control of something (i.e. Iraq) it’s incredibly hard to get them to let go.