NPR logo The Foreign Service Intelligence Act: A Primer


The Foreign Service Intelligence Act: A Primer

The Senate is debating a new bill that would bolster judicial oversight of government surveillance. It's an overhaul of a 30-year old law: the Foreign Service Intelligence Act, or FISA. Here are some of the main issues in the debate:

What does the FISA law do?

It regulates domestic spying. Enacted in 1978, it requires the government to obtain orders from a secret FISA court to conduct surveillance of suspected terrorists in the United States.

Why do some people feel the law needs to be changed?

The Bush administration argues that, given modern technology (read cell phones and e-mail), the FISA law is outdated. Obtaining a warrant for every wiretap is unrealistic, the White House argues, and could undermine national security. Indeed, after the Sept. 11 attacks, President Bush authorized the interception—without warrants—of communications between people in the United States and others overseas if one had suspected ties to terrorists. Critics charge that program violated the FISA law, but Bush argued he had wartime powers to do so.

Has the FISA law been revised recently?

Yes. Congress passed a new law in August. The updated law allowed the government to eavesdrop without a court order on communications conducted by a person reasonably believed to be outside the U.S., even if an American is on one end of the conversation —so long as that American is not the intended target of the surveillance. But this new law was temporary, and is due to expire in February.

Why not just make the temporary law permanent?

Civil rights advocates, and many congressional Democrats, worry that that the new law gives the government too much power to listen in on the calls of innocent Americans. Critics are also reluctant to support a new law until the Bush administration provides information about past monitoring practices. It has yet to do so, citing national security concerns.

Is a compromise in the works?

Yes, but there are several sticking points. The biggest one has to do with telecommunications firms. These firms want retroactive immunity from any invasion-of-privacy suits that might stem from their participation in the secret warrantless-surveillance program launched by President Bush after the Sept. 11 attacks.

The White House said the immunity is critical to winning future cooperation from phone companies, and President Bush has threatened to veto the bill if it does not grant immunity to telecommunications firms. A deal struck Thursday between members of the Senate Intelligence Committee and the Bush administration would grant telecom firms retroactive immunity. In return, the deal would ensure that the FISA court reviews procedures for the administration's warrantless surveillance program.

There is also the issue of what kind of warrants the FISA court would grant: individual warrants, or broad "blanket" warrants that cover an entire investigation.

So what happens next?

For starters, the deal still has to win approval from the Judiciary Committee — whose chairman, Sen. Patrick Leahy (D-VT), has already denounced it as "caving in" to the administration. Before they agree to grant telecom firms blanket immunity, Judiciary Committee members want to see White House documents detailing how its warrantless surveillance program has been used in the past.