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.
What are groups that support privacy and individual rights saying about all of this?
American Civil Liberties Union Executive Director Anthony Romero said: "That a Democratically-controlled Senate would be strong-armed by the Bush administration is astonishing. This Congress may prove to be as spineless in standing up to the Bush administration as the one that enacted the Patriot Act or the Military Commissions Act."
The Cato Institute's Tim Lynch wrote: "If a member of Congress does not support the proposal under consideration, it means he or she is too 'soft.' Even though we're about six years past 9/11 and even with the track record of Attorney General Gonzales, most legislators put their reservations aside, curl up into the fetal position and say 'I am against the terrorists too,' as they vote in favor."
What do telephone companies think about this new law?
A: Representatives from Quest, Verizon and AT&T--which has hinted in the past about how it could be required to cooperate with the NSA--declined to comment. Last year, AT&T accidentally leaked information in a legal brief that sought to offer benign reasons why a San Francisco switching center would provide a mechanism to monitor Internet and telephone traffic.
McConnell told Democratic congressional leaders in a private meeting late last week that some major telecommunications firms are concerned about the law's provision that could force them to cooperate with law enforcement based on orders from the attorney general or the DNI, a Democratic congressional aide told News.com. The companies reportedly indicated they would rather comply with a court-sanctioned warrant.
Why is the Bush administration making such a fuss about getting these new powers, anyway? Doesn't it already believe programs like the National Security Agency's terrorist surveillance program are already legal?
It's true that the Bush administration has steadfastly defended the legality of a National Security Agency undertaking publicly known as the "Terrorist Surveillance Program," which officials have indicated in recent weeks is just one of many such intelligence programs that the government has been operating. More broadly, the administration has been agitating with increasing urgency over the past year or so for changes to FISA because it claims the law has become outmoded, delaying critical intelligence collection.
FISA said that investigators generally must obtain warrants from a secret court before tapping into communications with foreigners that originate in the United States. But intelligence officials have argued that because communications today are often physically routed through American soil, distinguishing between calls and e-mails that occur inside and outside the country only stymies their efforts to snoop on suspects. "Simply due to technology changes since 1978, court approval should not now be required for gathering intelligence from foreigners located overseas," McConnell said in a recent statement.
Opponents to such changes, such as the ACLU, argue that FISA has already been updated dozens of times since 1978 and that the justifications for further tweaks offered by the Bush administration are really just looking for new ways to wiretap Americans without a warrant.
Which presidential candidates voted for or against the wiretapping bill?
Voting against the bill: Democrats Hillary Clinton, Barack Obama, Joe Biden, Christopher Dodd and Dennis Kucinich.
Voting for the bill: Republican Sam Brownback.
John McCain and Ron Paul did not vote, but based on his congressional record and public statements, Paul would have likely opposed the legislation. The Senate voting results and House of Representatives results are now online.
Did the votes in the U.S. Congress fall mostly along party lines?
Yes. In the Senate vote on Friday night, not one Republican joined the 28 Democrats who voted against the measure, though 15 Democrats were among the 60 members who voted for the bill.
Some Democrats who voted to approve the bill indicated they did so based on the experience of members of their party who are on the Senate Intelligence Committee. "They chose to give significant weight and deference to the intelligence community on FISA reform, and so did I," freshman Virginia Sen. Jim Webb said in a statement.
On the House side, 41 Democrats joined the 186 Republicans voting for the bill's passage, while just two Republicans joined the 181 Democrats opposing it.
What happens when this thing expires? Is there any chance it'll be replaced with something different before then?
Both supporters and opponents of the law already have begun publicizing their hopes for the next version of the law. "Our work is not done," President Bush said in a statement after signing the bill--which he characterized as a "temporary, narrowly focused statute"--on Sunday. He called for "comprehensive reform," singling out "the important issue of providing meaningful liability protection to those who are alleged to have assisted our nation following the attacks of September 11, 2001." He was almost undoubtedly referring to shielding the telephone companies that allegedly assisted the government in a less-than-legal way.
House Speaker Nancy Pelosi, meanwhile, has already sent a letter to fellow Democrats Rep. John Conyers, chairman of the House Judiciary Committee, and Rep. Silvestre Reyes, chairman of the House Intelligence Committee, instructing them to craft a new bill that "responds comprehensively to the administration's proposal while addressing the many deficiencies" in the approved law.
Details on that new proposal weren't immediately clear, but a Conyers representative said the chairmen "will want to move swiftly on introducing and moving the legislation in September."