Surveillance law prompts clashes in two panels

Intelligence director says updates were critical since original version did not foresee cellular telephones, e-mail and the Internet.

The nation's top intelligence official told lawmakers on Tuesday that recent changes to a decades-old surveillance law were badly needed in light of the technological evolution that has occurred since the statute was originally passed.

The Foreign Intelligence Surveillance Act's definition of electronic surveillance before updates hurried through Congress in August did not foresee cellular telephones, e-mail and the Internet, National Intelligence Director Michael McConnell told the House Judiciary Committee.

The House Intelligence Committee also held a hearing on the law, with Democrats and Republicans on both panels clashing over how to change it.

When the 1978 law was enacted, McConnell told Judiciary, "almost all local calls were on a wire and almost all international communications were in the air," and FISA distinguished between the two. Today "the situation is completely reversed" with most overseas calls using wire and local calls passing through the air.

McConnell said FISA's power has been diminished because communications that used to be transmitted via radio or satellite now move via fiber-optic cables, which were not covered by the mandate. The 1978 law also placed a premium on the location of data collection, which he said has been complicated by the interconnectedness of modern networks.

Before last month's FISA updates, the law's requirement to obtain a court order, based on a showing of probable cause, "slowed, and in some cases prevented altogether, the government's ability to collect foreign intelligence information," McConnell said.

The updated language, which expires in six months unless Congress extends it, allows the director of national intelligence and attorney general to authorize some spying without first getting warrants from a secret court created by the underlying law.

Assistant Attorney General Kenneth Wainstein, who testified alongside McConnell, said it is important that Congress give liability protection to telecommunications firms that allegedly have assisted in certain intelligence activities. That exemption was not part of the latest FISA update.

Committee Chairman John Conyers, D-Mich., complained that the FISA modifications were made without proper vetting and what lawmakers have learned since "does not give this chairman much cause for comfort."

The bill was written so broadly that it permits the government to "intercept any and all electronic communications from U.S. citizens to anyone even thought to be abroad," Conyers said. The new power could also apply to business and library records, personal mail and "domestic searches of our homes," he argued.

New York Democrat Jerrold Nadler, who chairs the Constitution, Civil Rights and Civil Liberties Subcommittee, said he was particularly worried about the "administration's ongoing charm offensive."

"Let's have some truth in advertising," he said, spurring an eruption of cheers from some in the audience and gavel-banging from Conyers.

House Intelligence plans to debate long-term legislative changes to FISA on Oct. 4. At his panel's hearing, Chairman Silvestre Reyes, D-Texas, said the temporary legislation is "a very flawed bill" that "allows warrantless physical searches of Americans' homes, offices and computers. It converts the FISA court into a rubber stamp. And it contains insufficient protections for Americans who will have their phone calls listened to and e-mails read under this new authority."

But Republicans on both committees fired back at Democrats, saying that some of them, as well as privacy advocates, are overstating the effects of the FISA changes.

Intelligence Committee ranking Republican Pete Hoekstra of Michigan decried the "hysterical hypotheticals" offered by foes of the law. "Their wild, baseless accusations strain the limits of reality and, without reason, impugn the integrity and honor of the hard-working intelligence professionals we ask to protect our homeland."