PAA is Poo, and Kaput: Or, Who Should Congress be Protecting Americans From?

As of a week ago, Americans are once more free to sue telecommunications companies for cooperating with law enforcement.

That statement is unfair, but not very.

The 1978 Foreign Intelligence Surveillance Act (FISA) set up rules which took into account both the cutting-edge communications technology of the seventies, and a lively concern about the right of Americans to sue telecommunications companies.

The Protect America Act of 2007 (PAA) hastily passed a mere six years and a few months after the 9/11 attacks, updated FISA. Almost three decades had brought changes in information technology. Lots of changes.

PAA also made it possible for telecommunications companies to cooperate with American law enforcement without getting sued.

For some of our leaders, that's a real problem.

Other Congressional concerns were addressed, though. Including an assurance that the "temporary update of the FISA bill is carefully worded to guard against law enforcement listening in on Americans who may be involved with plans that organizations like al Qaeda have for killing other Americans."

I feel so much safer.

Back to the demise of PAA, last weekend.

As CNN put it:

"Attorney General Michael Mukasey on Friday pressed Congress to pass an update to the Foreign Intelligence Surveillance Act, saying its delayed passage makes it harder to track terrorist suspects 'by the day.'

"President Bush secretly instituted the National Security Agency's domestic spying program after 9/11.

"The bill contains a controversial measure that grants legal immunity to telecommunications companies that cooperated with a warrantless wiretapping program that President Bush acknowledged in 2005.

"Critics say the program violated the law, and phone and Internet companies now face as many as 40 lawsuits related to their participation.

"Because the question of whether telecommunications companies will get the immunity "is up for grabs," Mukasey said, they are "more and more uncertain, more and more hesitant to cooperate.' "

National Intelligence Director Mike McConnell claimed that lifting that lawsuit immunity would hurt America's ability to find out what terrorists are planning.

Now, McConnel and Attorney General Michael Mukasey say that they're right: " 'We have lost intelligence information this past week as a direct result of the uncertainty created by Congress' failure to act,' they wrote in a letter to Rep. Sylvestre Reyes, chairman of the House intelligence committee."

At least we can rest easy, knowing that Americans can once more sue telecommunications companies for cooperating with the people who are trying to keep both of them alive.

Congress is doing something about the 'wiretap' issue. The House and Senate each came up with a bill, with a big difference between the two:

• The Senate bill gives retroactive immunity to telecommunications companies that wiretapped American phone and computer lines when the American government asked them to, but without the permission of a secret court that was set up in the seventies
• The House version doesn't

I wrote about the Washington crowd, FISA, PAA, their priorities, and the real world, in "Congress Must Decide Who to Protect Americans From" (August 5, 2007)

I'm glad that legislators are aware of the importance of due process and warrants for arrests, wiretaps, and other matters. I wish I could be confident that they were also aware of just how serious the threat from terrorists is.

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News articles used in this post:

• "Intel Chief: Telecoms Refusing Wiretaps"
  Forbes (February 22, 2008)
• " Mukasey: Delayed passage of surveillance bill hurting security"
  CNN (February 22, 2008)