Warrantless Wiretaps Law Extended Until February 16

Warrantless Wiretaps Law Extended Until February 16

On the evening of January 29, the House and Senate passed by voice vote a two-week extension of the Protect America Act, which had been set to expire on February 1. Originally enacted in August 2007 as a six-month amendment to the 30-year-old Foreign Intelligence Surveillance Act (FISA), PAA enabled the National Security Agency to eavesdrop on foreign communications, including phone calls and e-mail exchanges, between someone “reasonably believed to be outside the United States” and a person on U.S. soil. There is no exemption in the PAA for communications traveling to or from U.S. libraries.

Although the White House issued a Statement of Administration Policy January 28 iterating President Bush’s opposition to an extension of the PAA because “the threat posed by al Qaeda will no more expire in 34 days than it will in four days when the PAA expires,” White House deputy press secretary Tony Fratto indicated the next day that the president would sign the 15-day extension into law. “We will accommodate this request so that Congress can live up to its commitment to passing a bill that gives the intelligence community the tools they need to protect the nation,” he told the Associated Press January 29.

The extension gives the Senate breathing room to consider what judicial oversight, if any, federal agents should have in surveilling terrorist suspects. A week earlier, the American Library Association joined with the American Civil Liberties Union and 52 other groups in cosigning a letter to Senate Majority Leader Harry Reid (D-Nev.) that “vigorously” opposed the Intelligence Committee version of the FISA Amendments Act. According to the January 22 letter, the Intelligence Committee version of S. 2248 would authorize “warrantless, mass collection of Americans’ international communications,” create “an unacceptable loophole to FISA’s protections against electronic surveillance . . . by changing FISA’s definition of ‘electronic surveillance,’” and give telecommunications firms retroactive immunity for allegedly unlawful wiretapping conducted since 9/11 as charged in some 40 ongoing civil lawsuits. Instead, the signatories support the Judiciary Committee bill that, the letter asserted, would “make clear that once a significant purpose of the government’s surveillance is to acquire the communications of a particular person [in the United States], it must go to the Foreign Intelligence Surveillance Court for a court order based on probable cause.”

“Any surveillance can have a chilling effect, but warrantless surveillance is particularly insidious,” ALA and the Association of Research Libraries stated in written testimony October 31 submitted to the Senate Judiciary Committee. “The requirement for a court order to enter a library would at least send a message of fairness and due process the world over.”

Posted on January 30, 2008.