What Is the FISA Act? Trump Slams Then Supports Surveillance Provision

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Intelligence community leaders, including National Security Agency Director Michael Rogers, have strongly advocated for the renewal of FISA Section 702. The House may vote on reauthorizing the legislation Thursday. Chip Somodevilla/Getty Images

Hours after White House press secretary Sarah Huckabee Sanders released a statement expressing support for the Foreign Intelligence Surveillance Act, or FISA, President Donald Trump tweeted his disapproval, directly contradicting the official White House position. Two hours later, he walked back his initial comments, appearing to get back in line with his administration’s stance.

“‘House votes on controversial FISA ACT today.’ This is the act that may have been used, with the help of the discredited and phony Dossier, to so badly surveil and abuse the Trump Campaign by the previous administration and others?” the president tweeted Thursday at 7:33 a.m.

Fewer than two hours later, Trump backtracked, tweeting, “With that being said, I have personally directed the fix to the unmasking process since taking office and today’s vote is about foreign surveillance of foreign bad guys on foreign land. We need it! Get smart!”

Wednesday night, Sanders made a statement supporting the legislation, writing, “The Administration urges the House to...preserve the useful role FISA’s Section 702 authority plays in protecting American lives.”

But, what exactly is FISA and what scope of powers does it give the government?

The Foreign Intelligence Surveillance Act was originally signed into law in 1978 as a way to provide oversight of the government’s surveillance programs while still allowing intelligence agencies the secrecy required to be effective. 

The law was seldom a point of public conversation until the terrorist attacks on September 11, 2001. Following the attacks, FISA was amended with the USA Patriot Act, which was added to include terrorist groups in the classification of foreign agents and entities. The law was once again in the news in 2005, when it was revealed that the government had been wiretapping American citizens without obtaining court orders, a clear violation of the scope of the legislation. 

The current congressional discussion over FISA stems from the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, which introduced Section 702. The provision in the 2008 legislation allowed the Department of Justice and the Office of the Director of National Intelligence to work together in targeting foreign citizens outside of the United States.

The legislation, which needs to be reauthorized by Congress before January 19, 2018, served as the legal justification for the PRISM program, which was uncovered and revealed by Edward Snowden in 2013. The program is used to collect electronic communications from American companies, but has repeatedly come under fire from privacy advocates for being invasive and without legal justification. The government maintains that no domestic citizens can be targeted without a court order.

This year, a bipartisan coalition of legislators led by Republican Representative Justin Amash is seeking to rein in the authorities given to intelligence agencies through the USA Rights amendment, which press secretary Sanders opposed in her statement, calling on “the House to reject this amendment.” Section 702 supporters say this would derail some of the important work being done. Amash’s amendment would limit how the intelligence community could collect any communications involving Americans.