August 6, 2007 1:40 PM PDT
FAQ: How far does the new wiretap law go?
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Over strong objections from civil liberties groups and many Democrats, legislators voted over the weekend to temporarily rewrite a 1978 wiretapping law that the Bush administration claimed was hindering antiterrorism investigations.
To help explain what the Protect America Act of 2007 means, CNET News.com has prepared the following Frequently Asked Questions, or FAQ list.
What does the new Protect America Act actually do?
The new law effectively expands the National Security Agency's power to eavesdrop on phone calls, e-mail messages and other Internet traffic with limited court oversight. Telecommunications companies can be required to comply with government demands, and if they do so they are immune from all lawsuits.
It also says, as George Washington University law professor Orin Kerr notes, that 1978 Foreign Intelligence Surveillance Act (FISA) warrants are not needed for Internet or telephone "surveillance directed at a person reasonably believed to be located outside of the United States." What that means is that the National Security Agency can plug into a switch inside the United States (when monitoring someone outside the country) without seeking a court order in advance.
How long will this law last?
The law signed by Bush is set to "sunset" in 180 days. That addition was tacked on as an amendment after last-minute negotiations among politicians and the Bush administration, who remain at odds over how a permanent law should be worded.
"Our main objective at this point was to ensure that a bill passed that would give us the tools we needed to continue to fight the war on terror," a spokeswoman for Director of National Intelligence Mike McConnell told CNET News.com on Monday. "The politics of it were such that that was the concession we were willing to make in order to get this bill passed sooner than later."
Translation: If the protracted skirmishing over the Patriot Act renewal is any indicator, this won't be settled easily, quickly or amicably.
Why did House Speaker Nancy Pelosi and the Democratic leadership bring this bill to a vote over the weekend, instead of delaying it until fall or killing it outright?
The short answer? Political concerns. House of Representatives rules let the majority party control the schedule of votes, so Pelosi had the power to push back a vote indefinitely. In fact, Pelosi even said the legislation "does violence to the Constitution of the United States."
Many Democrats were worried about rushing to approve a bill just before Congress left town for a summer holiday. "Legislation should not be passed in response to fear-mongering," said Rep. Rush Holt of New Jersey.
But in the end, the Democratic leadership became fearful about appearing weak in the so-called "War on Terror" and interfering with intelligence gathering, and scheduled the vote before they left town. Liberal publications such as Mother Jones responded by saying: "The Democrats can rest easily over the August recess knowing that they haven't left themselves vulnerable to political attacks. The rest of us can worry about whether the NSA is using its enhanced surveillance authority to spy on Americans." An article on DailyKos.com was even less complimentary.
Weren't there some concerns about a recent court ruling?
Yes, although details remain murky. House Minority Leader John Boehner, an Ohio Republican, told Fox News last week: "There's been a ruling, over the last four or five months, that prohibits the ability of our intelligence services and our counterintelligence people from listening in to two terrorists in other parts of the world where the communication could come through the United States." Because the ruling--and even the existence of a ruling--is not public, there's no way to tell what's really going on.
A subsequent Los Angeles Times article says it was a ruling by the Foreign Intelligence Surveillance Court that imposed new restrictions on the National Security Agency's ability to intercept communications that are between people overseas, but that "transit" U.S. data networks operated by Internet service providers and telecommunications companies. The newspaper, citing an anonymous source, said the FISA ruling dealt with a request for a "basket warrant," meaning a kind of dragnet approach rather than warrants issued on a case-by-case basis for surveillance of specific terrorism suspects.
The Washington Post elaborated on the impact of the ruling, saying its effect was to block the NSA's efforts to collect information from a large volume of foreign calls and e-mails that pass through U.S. communications nodes clustered around New York and California.
The FISA court is relevant because Attorney General Alberto Gonzales said in January that the Bush administration would seek its approval for future electronic surveillance.
What does this mean for lawsuits against the telecommunications companies for allegedly opening their networks to the NSA in violation of federal law?
It may be too early to tell. The Justice Department declined to comment about the various pending suits, and the ACLU said it was still assessing the effect of the new law on its case.The law does immunize telecommunications companies going forward, but does not exempt them from legal liability before this week. So the court challenges would become weaker but could, at least in theory, continue.
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