One of the most critical matters facing Congress is the need to enact long-term legislation updating our nation's foreign intelligence surveillance laws. Intercepting the communications of terrorists and other intelligence targets has given us crucial insights into the intentions of our adversaries and has helped us to detect and prevent terrorist attacks.
Until recently, our surveillance efforts were hampered by the unintended consequences of an outdated law, the Foreign Intelligence Surveillance Act, which was enacted in 1978 to establish a system of judicial approval for certain intelligence surveillance activities in the United States.
The requirement that a judge issue an order before communications can be intercepted serves important purposes when the target of the surveillance is a person in our country, where constitutional privacy interests are most significant. The problem, however, was that FISA increasingly had come to apply to the interception of communications of terrorists and other intelligence targets located overseas. In FISA, Congress had embedded the crucial distinction between whether targets are inside or outside our country, but did so using terms based on the technology as it existed then. However, revolutionary changes in communications technology in the intervening years have resulted in FISA applying more frequently to surveillance directed at targets overseas. The increased volume of applications for judicial orders under FISA impaired our ability to collect critical intelligence, with little if any corresponding benefit to the privacy of people in the U.S.
This summer, Congress responded by passing the Protect America Act. That law, passed with significant bipartisan support, authorized intelligence agencies to conduct surveillance targeting people overseas without court approval, but it retained FISA's requirement that a court order be obtained to conduct electronic surveillance directed at people in the United States. As J. Michael McConnell, the director of national intelligence, stated, the new law closed dangerous gaps that had developed in our intelligence collection. Congress, however, set the act to expire on Feb. 1, 2008.
