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Privacy Rights in the Digital Age

Protect America Act of 2007 (PAA), Public Law 110–55

by Eric Merriam

The federal statute passed in 2007 modifying the Foreign Intelligence Surveillance Act of 1978 (FISA). The PAA was submitted to Congress by the George W. Bush administration, claiming concerns that FISA needed to be modernized. Remarkably, the bill passed both houses of Congress and was signed by the president just four days after it was first introduced in the Senate. The PAA contained several key modifications to FISA, including narrowing the scope of electronic surveillance that required a warrant or court order, creating a procedure under which the executive branch itself determined whether a warrant was necessary, and reducing the role of the Foreign Intelligence Surveillance Court (FISC) in intelligence-gathering oversight.

The original FISA required the U.S. government to obtain a warrant or court order if foreign intelligence acquisition of the contents of a wire communication to or from a person in the United States occurred in the United States. By contrast, the PAA created a new Section 105A of FISA that excluded from the FISA requirement to obtain a warrant or court order any surveillance “directed at a person reasonably believed to be located outside of the United States.” The PAA did this by excluding such surveillance from the definition of electronic surveillance. Because FISA had required a warrant or court order for “electronic surveillance,” the exclusion of surveillance directed at persons outside the United States from the definition of electronic surveillance meant that such surveillance, even if conducted by electronic means, would not require a warrant or court order. This development was particularly important because far more electronic information—particularly Internet communication—passed through the United States in 2008 than in 1978 when FISA was first created.

The PAA also created Section 105B of FISA, which established a new procedure by which the national intelligence apparatus could acquire foreign intelligence information without a warrant. Under Section 105B, intelligence acquisition could be conducted without a warrant or court order based solely on certifications by the Director of National Intelligence (DNI) and Attorney General (AG) that the intelligence acquisition concerned a person believed to be outside the United States; the acquisition involves obtaining the foreign intelligence information from or with the assistance of a communications service provider as it is transmitted or stored; a significant purpose of the acquisition is to obtain foreign intelligence information; and procedures are implemented to minimize the risk of targeting U.S. persons.

Finally, the PAA seemed to reduce the power of FISC to oversee a wide array of surveillance activities. Under the procedure established in the PAA, the AG and DNI submitted a copy of their certifications regarding specific acquisition to FISC, but the certifications were kept under seal and reviewed by FISC only if the acquisitions were later challenged, thus limiting FISC's role to an after-the-fact review of specific acquisition decisions. FISC was given a new responsibility of annually assessing whether federal agencies' procedures for determining whether surveillance was “electronic surveillance” were “clearly erroneous.” Though this did constitute a new review, its practical oversight of government surveillance was limited for several reasons: Under this procedure, FISC was limited to reviewing the mechanism of government assessment of determining whether surveillance was or was not “electronic surveillance,” not specific decisions themselves; the “clearly erroneous” standard of review was very deferential to government agencies; and the annual nature of the review meant significant time could pass before FISC would correct any deficiencies in the government decision-making process.

The PAA codified actions already being conducted under the president's Terrorism Surveillance Program, which itself raised significant questions of legal authority. The PAA's passage thus generated significant controversy, especially among civil liberties groups and constitutional scholars who saw the act as inconsistent with the Fourth Amendment to the U.S. Constitution. Despite being hailed by the government as an important tool in the U.S. fight against terrorism, the expanded warrantless surveillance authority under the PAA was not, in fact, limited to terrorism investigations. In fact, the PAA allowed warrantless intelligence acquisition without any requirement that the target of the intelligence gathering be related to terrorism, criminal activity, or even a foreign agent, as FISA had required. To some who objected, the PAA was thus a blank check for any kind of government surveillance.

Intended to be a temporary solution, the PAA had a sunset provision under which the operative sections expired 180 days after the PAA went into effect. Shortly before the expiration, Congress passed a fifteen-day extension. A replacement for the PAA, the FISA Amendments Act of 2008, was passed soon thereafter. While the FISA Amendments Act included some significant revisions, the PAA served as the first congressional sanction of warrantless electronic surveillance that had been barred by FISA.

Further Reading

1 

Addicott, Jeffrey F., and Michael T. McCaul. “The Protect America Act of 2007: A Framework for Improving Intelligence Collection in the War on Terror.” Texas Review of Law and Politics 13 (2008).

2 

Cohn, Marjorie. “FISA Revised: A Blank Check for Domestic Spying.” Huffington Post, August 9, 2007. http://www.huffingtonpost.com/marjorie-cohn/fisa-revised-a-blank-chec_b_59884.html.

3 

CRS Report for Congress. P.L. 110–55, the Protect America Act of 2007: Modifications to the Foreign Intelligence Surveillance Act. February 14, 2008.

See also:d Foreign Intelligence Surveillance Act of 1978 (FISA); Foreign Intelligence Surveillance Court (FISC)

Citation Types

MLA 9th
Merriam, Eric. "Protect America Act Of 2007 (PAA), Public Law 110–55." Privacy Rights in the Digital Age, edited by Christopher T. Anglim & JD, Salem Press, 2016. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA_0174.
APA 7th
Merriam, E. (2016). Protect America Act of 2007 (PAA), Public Law 110–55. In C. Anglim & JD (Ed.), Privacy Rights in the Digital Age. Salem Press. online.salempress.com.
CMOS 17th
Merriam, Eric. "Protect America Act Of 2007 (PAA), Public Law 110–55." Edited by Christopher T. Anglim & JD. Privacy Rights in the Digital Age. Hackensack: Salem Press, 2016. Accessed May 30, 2026. online.salempress.com.