Citation Edit

Protect America Act of 2007 (PAA), Pub. L. No. 110-55, 121 Stat. 552 (Aug. 5, 2007), codified at 50 U.S.C. §1801 nt.

Overview Edit

The Act, signed on August 5, 2007, after extensive congressional debate excluded from the definition of "electronic surveillance" under FISA, surveillance directed at a person reasonably believed to be located outside the United States. In addition, under certain circumstances, FISA, as amended by this legislation, permitted the DNI and the Attorney General, for periods up to one year, to authorize acquisition of foreign intelligence information "concerning persons reasonably believed to be located outside of the United States," apparently including U.S. persons, and to direct a communications provider, custodian, or other person with access to the communication immediately to provide information, facilities, and assistance to accomplish the acquisition. Those receiving such directives had the right to contest them in court.

The DNI and the Attorney General were required to certify, in part, that this acquisition did not constitute electronic surveillance; and the Attorney General was required to submit the procedures by which this determination is made to the FISC for review as to whether the Government determination was clearly erroneous. On a semiannual basis, the Attorney General was to report to congressional oversight committees on instances of noncompliance with directives and numbers of certifications and directives issued during the reporting period.

The Act expired on February 1, 2008, and efforts to extend it further failed in the House when H.R. 5349 was rejected on February 13. Acquisitions authorized while the PAA was in force may continue until the expiration of the period for which they were authorized.

The Protect America Act was strongly criticized by some Members; on November 15, 2007, H.R. 3773, the RESTORE Act (the Responsible Electronic Surveillance that is Overseen, Reviewed, and Effective Act of 2007) was passed by the House to clarify that a court order is not required for the acquisition of the contents of communications between two persons neither of whom is known to be a U.S. person, and both of whom are reasonably believed to be located outside the United States, regardless of whether the communications passed through the United States or if the surveillance device was in the United States. If, in the course of such an acquisition, the communications of a U.S. person were incidentally intercepted, stringent minimization procedures would apply. Court orders would, however, be required if the communications of a non-U.S. person reasonably believed to be located outside the United States were targeted where the other parties to the target’s communications are unknown and thus might include U.S. persons or persons located physically in the United States. Some Members argued that this provision would unnecessarily tie the hands of intelligence agencies and jeopardize the counterterrorism effort. The RESTORE Act would have also provided for increased judicial oversight and would have required quarterly implementation and compliance audits by the Inspector General of the Justice Department, and added related congressional reporting requirements. The RESTORE Act was never enacted.

The Act was replaced by the FISA Amendments Act of 2008 (FAA) in July 2008.

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