The Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 and the Effect on Electronic Communication Service Providers

On July 10, 2008, the President signed H.R. 6304, the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 (“The Act”), expanding the federal government’s power to conduct foreign intelligence surveillance. This bill was recently passed by the Senate on July 9, 2008, and the House of Representatives on June 20, 2008. H.R. 6304 went into effect on July 10, 2008. The bill amends the Foreign Intelligence Surveillance Act of 1978 to provide the U.S. Attorney General and the federal intelligence community with expanded power to conduct foreign surveillance, including the ability to conduct surveillance, on an emergency basis, without prior judicial oversight. The Act also provides lawsuit protection for electronic communication service providers that assist the government and creates retroactive immunity for activities undertaken since September 11, 2001, by service providers that helped the government investigate terrorism.

Kelley Drye’s Communications practice group has prepared a Client Advisory providing additional information on the Act and its effect on electronic communication service providers.