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Breaking News
Amendment to FISA Expands and Eases Government Access to Electronic Communications
August 8, 2007
On Sunday, August 5, 2007, Congress passed and President Bush signed the Protect America Act of 2007 (the “Act”), which amends provisions of the Foreign Intelligence Surveillance Act of 1978 (“FISA”) (50 U.S.C. § 1801 et seq.). The amendments which were designed to modernize the provisions of FISA to include electronic communications (e.g., email) and Internet protocol telephony took effect immediately and will sunset in 180 days absent further amendments.
The amendments allow the Director of National Intelligence and the Attorney General to authorize, for periods up to one year, the acquisition of “foreign intelligence information concerning persons reasonably believed to be outside the United States.” These acquisitions would involve obtaining information from or with the assistance of a communications service provider, custodian or any other person who has access to communications either as they are being transmitted or while they are stored (or equipment that is being or may be used to transmit or store such communications).
Moreover, the Director of National Intelligence and Attorney General may direct a person to “immediately provide the Government with all information, facilities, and assistance necessary to accomplish the acquisition in such a manner as will protect the secrecy of the acquisition and produce a minimum of interference with the services that such person is providing to the target” and to maintain any records concerning the acquisition or the aid furnished under government approved security procedures. Any person wishing to challenge the legality of such a directive may file a petition with the pool of designated FISA Court judges, one of whom shall be assigned.
Cable operators should note that, while the Cable Act’s authorized disclosure provisions were broadened as a result of the USA Patriot Act, allowing disclosures under provisions of the Electronic Communications Privacy Act and the Pen Register and Trap and Trace statutes, Section 621(c)(2) of the Cable Act requires the issuance of a court order under certain circumstances before the contents of communications are disclosed. Past practice of many cable operators has been to comply with FISA orders because they were issued as orders of the FISA court. Now, however, the Director of National Intelligence and/or the Attorney General may simply issue “directives” that do not rise to the level of a court order. The Act, however, grants immunity by declaring that, notwithstanding any other law, no aggrieved person has a cause of action for providing access or information pursuant to the Act.
While public debate builds on the impact of civil liberties and Congress debates what will happen to these provisions in six months, providers of electronic communications services should prepare and update protocols to process and respond to National Security Directives that will demand an immediate response.
We would be pleased to respond to any questions regarding these issues.