Analysis of the Protect America Act

Analysis of the FISA amendment, S.1927, aka the Protect America Act, from Marty Lederman over at balkinization...

....The key provision of S.1927 is new section 105A of FISA (see page 2), which categorically excludes from FISA's requirements any and all "surveillance directed at a person reasonably believed to be located outside of the United States."

For surveillance to come within this exemption, there is no requirement that it be conducted outside the U.S.; no requirement that the person at whom it is "directed" be an agent of a foreign power or in any way connected to terrorism or other wrongdoing; and no requirement that the surveillance does not also encompass communications of U.S. persons. Indeed, if read literally, it would exclude from FISA any surveillance that is in some sense "directed" both at persons overseas and at persons in the U.S.

The key term, obviously, is "directed at." The bill includes no definition of it....

As I understand new sections 105B and 105C, even if the surveillance is "directed at" foreigners, and therefore is no longer governed by the existing FISA requirements, if the DNI and AG wish to authorize "acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States," they will still have to do at least two things:

(i) meet certain minimization requirements (page 3); and

(ii) make a one-time submission to the FISA Court (see page 9) of the "procedures by which the Government determines that acquisitions conducted pursuant to section 105B do not constitute electronic surveillance" (i.e., are not covered by FISA). (The procedures would have to be updated and resubmitted annually.) In other words, the DNI and AG would have to explain to the FISA Court how it is that they determine that a certain category of surveillance is not "directed at a person reasonably believed to be located outside of the United States."

The FISA Court would then be required to determine whether those procedures for satisfying the "directed at" exemption "are reasonably designed to ensure that acquisitions conducted pursuant to [the surveillance] do not constitute electronic surveillance." In making this already deferential determination, "[t]he court’s review shall be limited to whether the Government's determination is clearly erroneous."

The DNI and AG would also have to certify (page 3) that a "significant purpose" of this new, non-FISA-compliant surveillance "is to obtain foreign intelligence information." This doesn't exclude the possibility that another purpose -- another significant or predominant purpose, even -- could be to obtain information not related to "foreign intelligence." Moreover, there would be no real way of enforcing even this modest certification requirement. It would come before the FISA Court, if at all, only indirectly, if someone receiving an order for assistance -- i.e., a serivce provider -- challenges the legality of the directive they've received, in which case a FISA judge must determine whether the directive to the service provider is unlawful (page 7).