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For Immediate Release
Office of the Press Secretary
September 19, 2007
Fact Sheet: FISA 101: Why FISA Modernization Amendments Must Be Made Permanent
FISA Amendments In The Protect America Act Of 2007 Remain Necessary To
Keep Our Nation Safe
The Protect America Act modernized the Foreign Intelligence Surveillance Act (FISA) to provide our intelligence community essential tools to acquire important information about terrorists who want to harm America. The Act, which passed with bipartisan support in the House and Senate and was signed into law by President Bush on August 5, 2007, restores FISA to its original focus of protecting the rights of persons in the United States, while not acting as an obstacle to gathering foreign intelligence on targets located in foreign countries. By enabling our intelligence community to close a critical intelligence gap that existed before the Act became law, the Protect America Act has already made our Nation safer.
The Protect America Act Of 2007 Modernizes FISA In Four Important Ways
The Basics Of FISA: Why The Protect America Act Of 2007 Is Necessary To Bring The Law Up-To-Date
Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1978 to regulate the Government's efforts to conduct certain foreign intelligence surveillance activities directed at persons in the United States. Congress recognized that the Government must be able to effectively collect foreign intelligence about those who wish to harm our country. To allow this collection to proceed while protecting the rights of Americans in the United States, Congress established a process for judicial approval that generally applied when the government targeted persons located inside the United States for foreign intelligence surveillance – but which generally did not apply to activities directed at persons overseas.
Revolutionary advances in telecommunications technology since 1978 have upset the careful balance established by Congress to distinguish between surveillance governed by FISA and surveillance directed at targets outside the U.S. The mechanism Congress used to identify which activities fell within FISA's scope – and to strike the balance between surveillance directed at persons overseas and persons in the United States – was a careful and complex definition of the term "electronic surveillance." This definition was framed in terms of the specific communications technologies used in 1978.
As a result, prior to the Protect America Act, the Government often needed to obtain a court order before vital intelligence collection could begin against a terrorist or other foreign intelligence target located in a foreign country. These targets often were communicating with other foreign persons overseas, but FISA's court order requirement still applied. It made no sense to require the Government to obtain a court order to collect foreign intelligence on targets located in foreign countries, nor was such a requirement intended when Congress passed FISA nearly 30 years ago.
This requirement resulted in a critical intelligence gap that was making our Nation less safe. Requiring the Government to go to court before the collection of foreign intelligence could begin resulted, as the Director of National Intelligence put it, in our intelligence professionals "missing a significant amount of foreign intelligence that we should be collecting to protect our country."
By changing FISA's definition of electronic surveillance to clarify that the statute does not apply to surveillance directed at overseas targets, the Protect America Act has enabled the intelligence community to close this critical intelligence gap. The Protect America Act 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 people in the United States. FISA's definition of electronic surveillance remains unchanged for surveillance directed at people in the United States, and continues to require court approval as it did before.
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