Foreign Intelligence Surveillance Act

Foreign Intelligence Surveillance Act

Foreign Intelligence Surveillance Act (FISA)

Foreign Intelligence Surveillance Act (FISA)

The Foreign Intelligence Surveillance Act of 1978 (FISA, Pub. L. 95–511, 92 Stat. 1783, 50 U.S.C. ch. 36) is a United States federal law that establishes procedures for the surveillance and collection of foreign intelligence on domestic soil. FISA was enacted in response to revelations of widespread privacy violations by the federal government under U.S. president Richard Nixon.

It requires federal law enforcement and intelligence agencies to obtain authorization for gathering "foreign intelligence information" between "foreign powers" and "agents of foreign powers" suspected of espionage or terrorism. The law established the Foreign Intelligence Surveillance Court (FISC) to oversee requests for surveillance warrants.

History and Background

The Foreign Intelligence Surveillance Act (FISA) was introduced on May 18, 1977, by Senator Ted Kennedy and was signed into law by President Carter on 25 October 1978. The bill was cosponsored by nine Senators: Birch Bayh, James O. Eastland, Jake Garn, Walter Huddleston, Daniel Inouye, Charles Mathias, John L. McClellan, Gaylord Nelson, and Strom Thurmond.

The FISA resulted from extensive investigations by Senate Committees into the legality of domestic intelligence activities. These investigations were led separately by Sam Ervin and Frank Church in 1978 as a response to President Richard Nixon's usage of federal resources, including law enforcement agencies, to spy on political and activist groups. The law itself was crafted in large part in closed door meetings between legislators and members of the Justice Department.

With a Court Order

Alternatively, the government may seek a court order permitting the surveillance using the FIS court. This is called the traditional intelligence collection, because it is "the targeted monitoring of a suspected clandestine operative of a foreign power." Approval of a FISA application requires the court find probable cause that the target of the surveillance be a "foreign power" or an "agent of a foreign power" inside the United States and that the places at which surveillance is requested is used or will be used by that foreign power or its agent. In addition, the court must find that the proposed surveillance meet certain "minimization requirements" for information pertaining to U.S. persons. If the foreign power's suspected agent communicates with Americans, the communications of U.S. citizens are incidentally intercepted even though they are not the targets of the surveillance.

FISA Court

The Act created the Foreign Intelligence Surveillance Court (FISC) and enabled it to oversee requests for surveillance warrants by federal law enforcement and intelligence agencies (primarily the Federal Bureau of Investigation and the National Security Agency) against suspected foreign intelligence agents inside the U.S. The court is located within the E. Barrett Prettyman United States Courthouse in Washington, D.C. The court is staffed by eleven judges appointed by the Chief Justice of the United States to serve seven-year terms.

Proceedings before the FISA court are ex parte and non-adversarial. The court hears evidence presented solely by the Department of Justice. There is no provision for a release of information regarding such hearings, or for the record of information actually collected. The USA Freedom Act (Section 402), however, requires the government to declassify and publicly release "to the greatest extent practicable" each order, decision and opinion of the court if it contains a "significant construction or interpretation of law."

Physical Searches

In addition to electronic surveillance, FISA permits the "physical search" of the "premises, information, material, or property used exclusively by" a foreign power. The requirements and procedures are nearly identical to those for electronic surveillance.

Telephone Metadata

In the 2020 case, United States v. Moalin, the Ninth Circuit Court of Appeals ruled that the federal government violated FISA, and possibly the Fourth Amendment of the U.S. Constitution, when it collected the telephony metadata of millions of Americans.

Remedies for Violations

Both the subchapters covering physical searches and electronic surveillance provide for criminal and civil liability for violations of FISA.

Criminal sanctions follows violations of electronic surveillance by intentionally engaging in electronic surveillance under the color of law or through disclosing information known to have been obtained through unauthorized surveillance.

Constitutionality

Before FISA, in 1967, the Supreme Court of the United States held that the requirements of the Fourth Amendment applied equally to electronic surveillance and to physical searches. The Court did not address whether such requirements apply to issues of national security.

Immediately preceding FISA, a number of courts squarely addressed the issue of "warrantless wiretaps".

Post-FISA, there have been very few cases involving the constitutionality of FISA.

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