Congress recently passed an expansion of the Wiretap Act
entitled “Protect America Act of 2007.” The act intends to provide government agencies
greater freedom to survey certain types of communications. The government
receives more freedom in creating surveillance programs and is less likely to
be subject to court review for surveillance programs.
The key component of the new law is the definition of
“electronic surveillance.” Individuals reasonably believed to be outside the
United States no longer fall under the auspices of the term, thus providing
greater freedoms for government investigations. Also particularly relevant is
the ability of the government to approve “broad” surveillance policies, as
opposed to having to approve proposed spying on a case-by-case basis.
Private telecommunications firms are also affected. Telecom
firms are immune from lawsuits when assisting legitimate government surveillance.
Such firms are similarly required to cooperate with government agencies that
request assistance from telecommunications providers.
The new law expires in 6 months, as many members of Congress
were concerned about implementation of some of the legislation’s provisions on
a long-term basis.
Bottom Line: While much has been made about the expansion of
surveillance rights, the Protect America Act of 2007 has not yet reached the
point where it should be considered over-reaching. For example, wholly domestic
communications are not bound by this new legislation, instead subject to court
interpretation of the Fourth Amendment.
In addition, the legislation is temporary. While a permanent
extension of the act might require more detailed review, many members of
Congress have serious questions about the long-term viability of the
legislation as currently written. There is a an excellent chance that longer
term legislation will be more watered-down than the version passed in haste
before Congress departed for summer vacation. We can expect substantial editing
when Congress revisits this issue.