MYTH: The Foreign Intelligence Surveillance Act (FISA) has not kept up with the technology revolution we have experienced over the past 30 years.
FACT: There is absolutely no new technology that evades the Foreign Intelligence Surveillance Act (FISA). Besides, the FISA has been updated more than 50 times since being enacted in the ’70s; it was updated as recently as last year.
MYTH: Retroactive immunity for telecoms is essential because the intelligence community requires the willing cooperation of the private sector in order to conduct surveillance operations.
FACT: Lawful surveillance under FISA is accomplished through court orders that compel the cooperation of telecommunications companies. Telecommunications companies that comply with lawful orders or Attorney General certifications under FISA are protected against liability arising from that cooperation. Director of National Intelligence Mike McConnell has testified that the telecom companies that cooperated with the NSA’s post-9/11 surveillance programs received certifications, which would mean they already have immunity – unless of course those certifications are clearly illegal. Telecom immunity would only protect companies that illegally assisted the government. Private sector companies should not be encouraged to cooperate with illegal government requests.
MYTH: Telecoms will not cooperate with future intelligence efforts if they don’t receive immunity.
FACT: FISA orders and Protect America Act (PAA) directives are compulsory. Telecoms must comply with lawful orders. Telecoms only had discretion when they decided to cooperate with illegal government requests. They should be held responsible for breaking the law. No one should be above the law.
MYTH: When the PAA expires vital foreign intelligence surveillance programs will cease, and the government will not be able to conduct surveillance against new threats.
FACT: Any surveillance programs authorized under the PAA are in effect for an entire year, regardless of whether the PAA itself expires. The emergence of “new” targets for surveillance will not be a problem because the PAA authorized entire programs of surveillance, which are not limited to individual targets. If the government wants to wiretap individuals that for some reason do not fit under an authorized PAA program they can either apply for an order from the FISA Court or conduct the surveillance outside the United States.
MYTH: FISA is not an effective tool for protecting the national security.
FACT: During the Cold War FISA protected America from the threat of a nuclear-armed Soviet Union. FISA is a robust and nimble tool that gives the government significant powers to wiretap suspected terrorists while protecting the rights of innocent Americans by requiring judicial oversight. In an emergency, FISA allows the government to start the surveillance before requesting court permission. While McConnell falsely credited the PAA, it was surveillance conducted under FISA that helped the German government interdict a terrorist plot in Germany last year.
MYTH: Congress knows all it needs to know about the government’s warrantless surveillance programs.
FACT: Administration officials have repeatedly hinted about “other” intelligence programs. The NSA warrantless surveillance program may only be the tip of the iceberg. Congress needs to know about all illegal government surveillance programs before it considers giving the government more surveillance powers. Only a few Members of Congress have seen the documents relating to the terrorist surveillance program and Congress should not legislate in the dark.