January 24, 2008 | By Cindy Cohn

Congress Stand Firm: Surveillance Continues Even If PAA Expires

The Administration has been in a full-court press to bully Congress into making horrible permanent changes to FISA -- including immunity for telecommunications carriers like AT&T -- based on the argument that critical surveillance of terrorists will be cut short or degraded if the Protect America Act (PAA) expires on January 31, 2008.

But no surveillance started by the PAA will end when the PAA expires. All of the spying done under the PAA will continue until at least July 31, 2008 even if the law goes to the dustbin of history on January 31, as it should.

The PAA provides that any currently ongoing surveillance continues until the "date of expiration of such order," even if PAA expires. "Orders" are what the PAA calls the demand for surveillance by the Attorney General or Director of National Intelligence (there's no court involved). These surveillance orders can be issued for up to a year at a time, and since the PAA is only 6 months old, every order issued under the PAA will still continue for at least six months, until July 31, 2008, even if the law expires. And a surveillance order issued on January 30, 2008 will allow continued surveillance until January 30, 2009.

Even immunity proponent Senator Rockefeller agrees on this point. In a press release he issued today (it's not online yet) he said:

"Our government will continue to have authority under the law until at least August of this year, and can even extend that authority until January 2009."

No surveillance will go dark on February 1 if PAA expires. None.

The Protect America Act is straightforward about this. First, the part where surveillance "orders" last a year:

Sec. 105B. (a) Notwithstanding any other law, the Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States

Then the fact that these orders remain in effect until they expire even if PAA ends:

Section 6
(b) Transition Procedures- Notwithstanding any other provision of this Act, any order in effect on the date of enactment of this Act issued pursuant to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) shall remain in effect until the date of expiration of such order ...

And even after that, the Administration can seek reauthorization for any order, and even seek new orders, if they just go the the FISA court. That's here:

(continuation of section 6(b)
and, at the request of the applicant, the court established under section 103(a) of such Act (50 U.S.C. 1803(a)) shall reauthorize such order as long as the facts and circumstances continue to justify issuance of such order under the provisions of the Foreign Intelligence Surveillance Act of 1978, as in effect on the day before the applicable effective date of this Act. The Government also may file new applications, and the court established under section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)) shall enter orders granting such applications pursuant to such Act, as long as the application meets the requirements set forth under the provisions of such Act as in effect on the day before the effective date of this Act.

The Administration's time pressure on Congress is purely political theater. Congress should stand firm. www.stopthespying.org.


Deeplinks Topics

Stay in Touch

NSA Spying

EFF is leading the fight against the NSA's illegal mass surveillance program. Learn more about what the program is, how it works, and what you can do.

Follow EFF

The clock is ticking on Section 215 sunset, but the Senate is in stalemate on NSA spying powers: https://eff.org/r.tpwa

May 22 @ 10:58pm

BREAKING: At the behest of @SenateMajLdr, the Senate will meet Sunday, May 31st in the afternoon, mere hours before Section 215 expires.

May 22 @ 10:20pm

BREAKING: Senator Rand Paul objecting to even one more day of extending Section 215.

May 22 @ 10:08pm
JavaScript license information