Key Myths About FISA Amendments In The
Protect America Act
Provisions Of Protect America Act Of 2007 Must
Be Made Permanent To Prevent Gaps In Our Ability To Collect Vital
Foreign Intelligence Information
In August, Congress passed and the President signed into
law the Protect America Act of 2007, which modified the Foreign
Intelligence Surveillance Act (FISA) to give our intelligence
community necessary tools to acquire important information about
our enemies. Passed with bipartisan support in the House
and the Senate, the Act restores FISA to its original focus of
protecting the civil liberties of Americans, while not acting
as an obstacle to conducting foreign intelligence surveillance
on targets located in foreign countries. But this new statute
is a temporary and narrowly focused measure to deal with the most
immediate shortcomings in the law. It is essential that Congress
make the Protect America Act permanent and pass legislation to
provide meaningful liability protection to those alleged to have
assisted our Nation following the 9/11 attacks. Today, the House
Judiciary Committee will hold a hearing on FISA. The following
are key myths about FISA amendments in the Protect America Act,
and the facts that refute them:
1. MYTH: The Protect America Act of 2007 eliminates
civil liberty protections under the 1978 Foreign Intelligence
Surveillance Act (FISA).
- FACT: The new law simply makes clear
– consistent with the intent of the Congress that enacted FISA
in 1978 – that our intelligence community should not have to get
bogged down in a court approval process to gather foreign intelligence
on targets located in foreign countries. It does not change
the strong protections FISA provides to Americans in the United
States – surveillance directed at people in the United States
continues to require court approval as it did before.
- FACT: When FISA was enacted 30 years
ago, the law did not generally require a court order to obtain
foreign intelligence information from a target located outside
the United States.
- The mechanism Congress used to identify which government
activities required a court order under FISA was a careful and
complex definition of the term "electronic surveillance," framed
in reference to the specific communications technologies used
when the law was enacted in 1978.
- Telecommunications technologies have changed radically since
1978, and those changes have upset the careful balance established
by Congress. As a result, prior to the Protect America Act
of 2007, the government was often required to obtain a court
order before collecting foreign intelligence on targets in foreign
- FACT: The Protect America Act restores
FISA to its original focus of protecting the rights of Americans
within the United States while clarifying the definition of "electronic
surveillance" to make clear that – as was the intent when
Congress drafted the law – a court order is not required to target
persons located overseas.
2. MYTH: The Protect America Act gives the Federal
government new powers to target people in the United States for
- FACT: The Protect America Act leaves
untouched the strong protections FISA provides to Americans in
the United States – electronic surveillance targeting a person
in the U.S. required a court order before the Protect America
Act, and that requirement remains in place today.
- FACT: The Protect America Act does
not authorize "domestic wiretapping," and our intelligence
professionals are not using the new law either to acquire domestic-to-domestic
communications or to target the communications of persons in the
- FACT: If a foreign target communicates
with someone in the United States and the communication involves
terrorism or foreign intelligence, the new law remains consistent
with the intent of the old law – intelligence professionals can
intercept that communication without a court order. As the President
has said, "If there are people inside our country who are
talking with al Qaeda, we want to know about it."
- FACT: FISA has always been designed
to allow the executive branch to monitor the communications of
those in foreign countries planning to harm our Nation, and the
Protect America Act merely restores the law to its original intent
by accounting for changes in technology.
3. MYTH: The Protect America Act allows the government
to target Americans in the United States under the guise of surveilling
a person located overseas – a practice known as "reverse
- FACT: "Reverse targeting" was,
and remains, prohibited by law.
- FACT: The provisions of FISA that protect
against this practice remain unchanged by the Protect America
Act. The law excludes from the category of "electronic
surveillance," and thus from the FISA warrant requirement,
only surveillance directed at individuals reasonably believed
to be in foreign countries.
- FACT: "Reverse targeting" constitutes
electronic surveillance and thus generally requires a court order
under FISA. Nothing in the Protect America Act changes this.
- FACT: "Reverse targeting" makes
little sense as a matter of intelligence tradecraft. If the government
believes a person in the United States is a terrorist, it is more
useful to obtain a court order to collect all of the person's
communications than to conduct surveillance on that person by
listening only to a fragment of the person's calls to individuals
4. MYTH: Requiring intelligence operatives to get
a court order before collecting foreign intelligence on overseas
targets will not hinder the government's ability to collect intelligence.
- FACT: According to Director of National
Intelligence Michael McConnell, the delays caused by applying
for warrants before collecting foreign intelligence from overseas
targets meant our intelligence community was "missing a significant
amount of foreign intelligence that we should be collecting to
protect our country."
- FACT: Requiring intelligence professionals
to apply for and wait on a court order before gathering vital
intelligence from overseas targets can prevent the swift gathering
of intelligence necessary to identify and provide warning of threats
to our country.
- FACT: A mandatory court-approval process
also requires the intelligence community to divert scarce intelligence
experts to the time-consuming process of compiling court submissions.
5. MYTH: The Protect America Act authorizes the
executive branch to conduct physical searches of domestic mail,
computers, or the homes of Americans without a warrant.
- FACT: The Protect America Act does
not authorize physical searches of the homes, personal belongings,
or computers of individuals in the United States, or the opening
of domestic mail without a court order, and our intelligence professionals
are not using the Act to conduct such searches.
- FACT: Critics are misreading provisions
of the law that allow the Director of National Intelligence and
the Attorney General to direct communications service providers
and similar private entities to assist in authorized foreign intelligence
activities targeting individuals located outside the United States.
The Act safeguards against abuse of this provision by allowing
these private entities to challenge any such directive in the
6. MYTH: The Protect America Act would allow the
government to obtain, without a warrant or any court approval,
the business records of Americans in the United States.
- FACT: The Protect America Act does not
authorize the collection of most business records, such as medical
or library records.
- FACT: The Executive Branch will not
use the Act to acquire any business records of Americans in the
7. MYTH: The Protect America Act allows the intelligence
community to intercept communications without any oversight.
- FACT: Under the Protect America Act,
the Attorney General is required to submit for review to the FISA
Court the procedures by which the Federal government determines
that the authorized acquisitions of foreign intelligence do not
constitute electronic surveillance requiring court approval under
- FACT: Congress will be able to see
for itself that the law is being implemented responsibly and as
intended. The Administration has committed to informing the full
membership of the Intelligence and Judiciary Committees of acquisitions
authorized under the Protect America Act, and of the reviews the
Department of Justice and the Office of the Director of National
Intelligence will conduct to assess compliance by the implementing