The Foreign Intelligence Surveillance Act of 1978 (FISA)
50 U.S.C. §§ 1801-11, 1821-29, 1841-46, 1861-62, 1871.
Like Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the "Wiretap Act"), the FISA legislation was the result of congressional investigations into Federal surveillance activities conducted in the name of national security. Through FISA, Congress sought to provide judicial and congressional oversight of foreign intelligence surveillance activities while maintaining the secrecy necessary to effectively monitor national security threats. FISA was initially enacted in 1978 and sets out procedures for physical and electronic surveillance and collection of foreign intelligence information. Initially, FISA addressed only electronic surveillance but has been significantly amended to address the use of pen registers and trap and trace devices, physical searches, and business records.
FISA also established the United States Foreign Intelligence Surveillance Court (FISC), a special U.S. Federal court that holds nonpublic sessions to consider issuing search warrants under FISA. Proceedings before the FISC are ex parte, meaning the government is the only party present.
FISA, as amended, establishes procedures for the authorization of electronic surveillance, use of pen registers and trap and trace devices, physical searches, and business records for the purpose of gathering foreign intelligence.
Electronic Surveillance Procedures – Subchapter I of FISA established procedures for the conduct of foreign intelligence surveillance and created the Foreign Intelligence Surveillance Court (FISC). The Department of Justice must apply to the FISC to obtain a warrant authorizing electronic surveillance of foreign agents. For targets that are U.S. persons (U.S. citizens, permanent resident aliens, and U.S. corporations), FISA requires heightened requirements in some instances.
- Unlike domestic criminal surveillance warrants issued under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the "Wiretap Act") , agents need to demonstrate probable cause to believe that the "target of the surveillance is a foreign power or agent of a foreign power," that "a significant purpose" of the surveillance is to obtain "foreign intelligence information," and that appropriate "minimization procedures" are in place. 50 U.S.C. § 1804.
- Agents do not need to demonstrate that commission of a crime is imminent.
- For purposes of FISA, agents of foreign powers include agents of foreign political organizations and groups engaged in international terrorism, as well as agents of foreign nations. 50 U.S.C. § 1801
Record Destruction: Where the government has accidentally intercepted communications that "under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States," the government is required to destroy those records, "unless the Attorney General determines that the contents indicate a threat of death or serious bodily harm to any person." 50 U.S.C. § 1806.
Exception to Court Order Requirement: The President may authorize electronic surveillance to acquire foreign intelligence information for periods of up to one year without a FISC court order where the Attorney General certifies that there is "no substantial likelihood that the surveillance will acquire the contents of any communication to which a U.S. person is a party," provided the surveillance is directed solely at communications among or between foreign powers, or "the acquisition of technical intelligence … from property or premises under the open and exclusive control of a foreign power." 50 U.S.C. § 1802.
Physical Searches – Subchapter II of FISA establishes procedures for the physical search of "premises or property … owned, used, possessed by, or ... in transit to or from a foreign power or an agent of a foreign power." The procedures are substantially similar to the procedures established for electronic foreign intelligence surveillance.
Pen Registers and Trap & Trace Devices for Foreign Intelligence Purposes – Subchapter III of FISA establishes procedures for the use of pen registers and trap and trace devices for conducting telephone or e-mail surveillance.
Access to Certain Business Records for Foreign Intelligence Purposes – Subchapter IV of FISA establishes procedures for obtaining a FISC order for third-party production of business records to acquire foreign intelligence information.
FISA has been significantly amended by the Intelligence Authorization Act of 1995 (Pub. L. 103-359; 10/14/94), by the Intelligence Authorization Act of 1999, (Pub. L. 105-272; 10/5/98), by the USA PATRIOT Act (Pub. L. 107-56; 10/26/01), by the USA PATRIOT Additional Reauthorization Amendments Act of 2006 (Pub. L. 109-178; (3/9/06), the FISA (Foreign Intelligence Surveillance Act) Amendments Act of 2008 (Pub. L.110-261; 7/10/2008), and by the FISA Sunsets Extension Act (Pub. L. 112-3; 2/25/11). It also "eas[ed] the restrictions on foreign intelligence gathering within the United States and afford[ed] the U.S. intelligence community greater access to information unearthed during a criminal investigation." CRS Report RS21203, USA PATRIOT Act: A Sketch. Also see the other analyses of the PATRIOT Act for more on FISA changes as the result of passage of the PATRIOT Act. The FISA Amendments Act of 2008 also amended the ECPA.
Civil Rights and Civil Liberties Implications
FISA prohibits surveillance of or production of business records regarding a U.S. person based solely on First Amendment activities. 50 U.S.C. §§ 1805, 1842, 1861. Section 1806 provides guidance on the sharing of foreign intelligence information among Federal agencies and with State and local partners, as well as guidance as to disclosure of foreign intelligence information in criminal proceedings. Section 1825 provides similar guidance regarding the use and disclosure of foreign intelligence gathered via a physical search, while section 1845 provides similar guidance for the use and disclosure of information acquired through pen registers and trap and trace devices gathered under Subchapter III. Note that "agents of foreign powers" may include U.S. citizens and permanent residents suspected of being engaged in espionage and violating U.S. law on territory under United States control. Section 1801(b).
The Intelligence Reform and Terrorism Prevention Act of 2004, P.L. 108-458, amended the definition of "agent of a foreign power" in FISA (50 U.S.C. § 1801(b)(1)), to add a new category of covered individuals called the "lone wolf" provision. Under the "lone wolf" provision, a non-United States person who engages in international terrorism or activities in preparation for international terrorism is deemed to be an "agent of a foreign power" under FISA.
The Federation of American Scientists, a non-profit organization that describes itself as providing "nonpartisan technical analysis on complex global issues that hinge on science and technology," offers a compilation of links to FISA-related resources including annual FISA reports to Congress, various court cases, and Department of Justice memoranda.