The so-called “Protect America Act of 2007," which we are calling the “Police America Act," allows for massive, untargeted collection of international communications without court order or meaningful oversight by either Congress or the courts. It contains virtually no protections for the U.S. end of the phone call or email, leaving decisions about the collection, mining and use of Americans’ private communications up to this administration.
The “Police America Act" allows the Attorney General (AG) to issue program warrants for international calls without court review. This new program grants the AG — not a court or independent body — the authority to issue year-long program warrants for surveillance of people reasonably believed to be outside of the United States. The secret intelligence court that has been overseeing such activities for the last thirty years is cut out of the process, leaving the executive branch unchecked.
The “Police America Act" has no protections for American phone calls and emails that are caught up in the dragnet. The new program only requires that the surveillance be targeted at people overseas. While this will allow collection of foreign-to-foreign calls, it also allows the government to pick up all international communications where one party is in the United States, so long as no one particular person in the U.S. is being “targeted.” The law is silent on how to treat these American phone calls and emails — leaving the administration to decide how to collect, store, datamine and use Americans’ private communications.
The “Police America Act" provides only a phony court review of secret procedures. The AG is directed to submit to the intelligence court the procedures by which this new program will operate. However, the report to the court only need detail how the program is directed at people reasonably believed to be overseas — it does not require the AG to explain how it treats Americans’ calls or emails when they are intercepted. The court will have no information about how extensive the breach of American privacy is, nor the authority to remedy it.
The “Police America Act" requires only meaningless reporting to Congress. The new law requires the AG to report to the Intelligence and Judiciary Committees twice a year. But those reports will only contain information about activity in violation of the AG’s own secret guidelines about targeting foreigners over seas. Again, this ignores the impact that vast international collections will have on U.S. persons. The AG does not have to report on how many Americans’ calls it has tapped, incidentally picked up or how many Americans have become targets, even though the AG will now be allowed to rummage through all calls and emails coming into and out of the U.S.
The “Police America Act" has a sunset that may be of little value. The ACLU will continue to work with Congress over the next six months to insert real protections into FISA for Americans who are going to be swept up in these new dragnets. However, the sunset will fall in the middle of the politically charged primary season, where it may be even harder to rein in intelligence activities already in progress than it is to resist expansion of those authorities in the first place. Changes should be made immediately.