FISA

The Foreign Intelligence Surveillance Act of 1978 ("FISA" , ) is a United States federal law that establishes procedures for the physical and electronic surveillance and the collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" suspected of espionage or terrorism.50 USC §1801(b)
"'Agent of a foreign power' means—

(1) any person other than a United States person, who—
(A) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4), irrespective of whether the person is inside the United States;
(B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances indicate that such person may engage in such activities, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities;
(C) engages in international terrorism or activities in preparation therefore;
(D) engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor; or
(E) engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor, for or on behalf of a foreign power, or knowingly aids or abets any person in the conduct of such proliferation or activities in preparation therefor, or knowingly conspires with any person to engage in such proliferation or activities in preparation therefor; or
(2) any person who—
(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;
(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;
(D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or
(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C). The Act created the Foreign Intelligence Surveillance Court (FISC) to oversee requests for surveillance warrants by federal law enforcement and intelligence agencies. It has been repeatedly amended since the September 11 attacks.

History

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.
The act was created to provide judicial and congressional oversight of the government's covert surveillance activities of foreign entities and individuals in the United States, while maintaining the secrecy needed to protect national security.

Warrantless domestic wiretapping program

The Act came into public prominence in December 2005 following publication by ''The New York Times'' of an article that described a program of warrantless domestic wiretapping ordered by the Bush administration and carried out by the National Security Agency since 2002; a subsequent Bloomberg article suggested that this may have already begun by June 2000.

Provisions

The subchapters of FISA provide for:
* Electronic surveillance ()
* Physical searches ()
* Pen registers and trap & trace devices for foreign intelligence purposes ()
* Access to certain business records for foreign intelligence purposes ()
* Reporting requirement ()

Electronic surveillance

Generally, the statute permits electronic surveillance in two different scenarios.

Without a court order

The President may authorize, through the Attorney General, electronic surveillance without a court order for the period of one year, provided that it is only to acquire foreign intelligence information, that it is solely directed at communications or property controlled exclusively by foreign powers,(a) Definition of Foreign power that there is no substantial likelihood that it will acquire the contents of any communication to which a United States person is a party, and that it be conducted only in accordance with defined minimization procedures., Conditions under which the President, through the Attorney General, may authorize electronic surveillance without a court order

The code defines "foreign intelligence information" to mean information necessary to protect the United States against actual or potential grave attack, sabotage or international terrorism.(e) Definition of Foreign intelligence information

"Foreign powers" means a foreign government, any faction of a foreign nation not substantially composed of U.S. persons, and any entity directed or controlled by a foreign government. The definition also includes groups engaged in international terrorism and foreign political organizations. The sections of FISA authorizing electronic surveillance and physical searches without a court order specifically exclude their application to groups engaged in international terrorism.

A "U.S. person" includes citizens, lawfully admitted permanent resident aliens, and corporations incorporated in the United States.

"Minimization procedures" limit the collection of information concerning United States persons by protecting their identities and requiring a court order to retain the communications for longer than 72 hours. The communications can be retained without court order if there is evidence of a crime. Identification of a US person, known as "unmasking", may also be authorized if an agency believes it is necessary in order to understand the intelligence or believes that the person was committing a crime.

The Attorney General is required to make a certification of these conditions under seal to the Foreign Intelligence Surveillance Court,, Requirement of the Attorney General's to file reports under seal on warrantless surveillance to the FISC and report on their compliance to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence., Requirement of the Attorney General's to report on compliance with warrantless surveillance requirements to Congress

Since (a)(1)(A) of this Act specifically limits warrantless surveillance to foreign powers as defined by 50 U.S.C. §1801(a) (1),(2), (3) and omits the definitions contained in 50 U.S.C. §1801(a) (4),(5),(6) the act does not authorize the use of warrantless surveillance on: groups engaged in international terrorism or activities in preparation thereof; foreign-based political organizations, not substantially composed of United States persons; or entities that are directed and controlled by a foreign government or governments.50 U.S.C. §1802 (a)(1)(A)
The limitation of warrantless surveillance to foreign powers as defined in 50 U.S.C § 1801 (a) (1),(2), and (3) Under FISA, anyone who engages in electronic surveillance except as authorized by statute is subject to both criminal penalties50 U.S.C. §1809
– Criminal sanctions and civil liabilities.50 U.S.C. §1810
– Civil liability

Under 50 U.S.C. § 1811, the President may also authorize warrantless surveillance at the beginning of a war. Specifically, he may authorize such surveillance "for a period not to exceed fifteen calendar days following a declaration of war by the Congress".50 U.S.C. § 1811
– Authorization during time of war

With a court order

Alternatively, the government may seek a court order permitting the surveillance using the FIS court.(a) Electronic surveillance with a court order 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.(h) Minimization procedures definition If the foreign power's suspected agent communicates with Americans, the communications of citizens of the United States are incidentally intercepted even though they are not the targets of the surveillance.

Depending on the type of surveillance, approved orders or extensions of orders may be active for 90 days, 120 days, or a year.(d) Duration of order; extensions; review of circumstances under which information was acquired, retained or disseminated FISA warrants require renewal depending on the type of surveillance and type of warrant either every 90 days (if targeting a U.S. person) or 120 days (if targeting a non-U.S. person).

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."

Denials of FISA applications by the FISC may be appealed to the Foreign Intelligence Surveillance Court of Review. The Court of Review is a three judge panel. Since its creation, the court has come into session twice: in 2002 and 2008.

FISC meets in secret, and approves or denies requests for search warrants. Only the number of warrants applied for, issued and denied, is reported. In 1980 (the first full year after its inception), it approved 322 warrants. This number has steadily grown to 2,224 warrants in 2006. In the period 1979–2006, a total of 22,990 applications for warrants were made to the Court of which 22,985 were approved (sometimes with modifications; or with the splitting up, or combining, of warrants for legal purposes), and only 5 were definitively rejected.

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.

Telephony metadata

In United States v. Moalin (September 2020), the 9th Circuit Court of Appeals stated:

We conclude that the government may have violated the Fourth Amendment and did violate the Foreign Intelligence Surveillance Act (“FISA”) when it collected the telephony metadata of millions of Americans, including at least one of the defendants...

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. The penalties for either act are fines up to US$10,000, up to five years in jail, or both.

In addition, the statute creates a cause of action for private individuals whose communications were unlawfully monitored. The statute permits actual damages of not less than $1,000 or $100 per day. In addition, that statute authorizes punitive damages and an award of attorney's fees. Similar liability is found under the subchapter pertaining to physical searches. In both cases, the statute creates an affirmative defense for law enforcement personnel acting within their official duties and pursuant to a valid court order. Presumably, such a defense is not available to those operating exclusively under presidential authorization.

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. ''Katz v. United States'', 389 U.S. 347 (1967). The Court did not address whether such requirements apply to issues of national security. Shortly after, in 1972, the Court took up the issue again in '' United States v. United States District Court, Plamondon'', where the court held that court approval was required in order for the domestic surveillance to satisfy the Fourth Amendment. 407 U.S. 297 (1972). Justice Powell wrote that the decision did not address this issue that "may be involved with respect to activities of foreign powers or their agents".

In the time immediately preceding FISA, a number of courts squarely addressed the issue of "warrantless wiretaps". In both ''United States v. Brown'', 484 F.2d 418 (5th Cir. 1973), and ''United States v. Butenko'', 494 F.2d 593 (3rd Cir. 1974), the courts upheld warrantless wiretaps. In ''Brown'', a U.S. citizen's conversation was captured by a wiretap authorized by the Attorney General for foreign intelligence purposes. In ''Butenko'', the court held a wiretap valid if the primary purpose was for gathering foreign intelligence information.

A plurality opinion in ''Zweibon v. Mitchell'', 516 F.2d 594 (D.C. Cir. 1975), held that a warrant was required for the domestic surveillance of a domestic organization. In this case, the court found that the domestic organization was not a "foreign power or their agent", and "absent exigent circumstances, all warrantless electronic surveillance is unreasonable and therefore unconstitutional."

Post-FISA

There have been very few cases involving the constitutionality of FISA. Two lower court decisions found FISA constitutional. In ''United States v. Duggan'', the defendants were members of the Irish Republican Army. 743 F.2d 59 (2d Cir. 1984). They were convicted for various violations regarding the shipment of explosives and firearms. The court held that there were compelling considerations of national security in the distinction between the treatment of U.S. citizens and non-resident aliens.

In the ''United States v. Nicholson'', the defendant moved to suppress all evidence gathered under a FISA order. 955 F. Supp. 588 (E.D. Va. 1997). The court affirmed the denial of the motion. There the court flatly rejected claims that FISA violated Due process clause of the Fifth Amendment, Equal protection, Separation of powers, nor the Right to counsel provided by the Sixth Amendment.

However, in a third case, the special review court for FISA, the equivalent of a Circuit Court of Appeals, opined differently should FISA limit the President's inherent authority for warrantless searches in the foreign intelligence area. In ''In re Sealed Case'', 310 F.3d 717, 742 (FISA Ct. Rev. 2002), the special court stated " l the other courts to have decided the issue aveheld that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information . ... We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."

Criticism

K. A. Taipale of the World Policy Institute, James Jay Carafano of the Heritage Foundation, and Philip Bobbitt of Columbia Law School, among others, have argued that FISA may need to be amended to include, among other things, procedures for programmatic approvals, as it may no longer be adequate to address certain foreign intelligence needs and technology developments, including: the transition from circuit-based communications to packet-based communications; the globalization of telecommunication infrastructure; and the development of automated monitoring techniques, including data mining and traffic analysis.

John R. Schmidt, associate attorney general (1994–1997) in the Justice Department under President Bill Clinton, expressed a need for programmatic approval of technology-enabled surveillance programs. He recalled early arguments made by then-Attorney General Edward Levi to the Church Committee that foreign intelligence surveillance legislation should include provisions for programmatically authorizing surveillance programs because of the particular needs of foreign intelligence where "virtually continuous surveillance, which by its nature does not have specifically predetermined targets" may be required. In these situations, "the efficiency of a warrant requirement would be minimal."

In a 2006 opinion, Judge Richard Posner wrote that FISA "retains value as a framework for monitoring the communications of known terrorists, but it is hopeless as a framework for detecting terrorists. ISArequires that surveillance be conducted pursuant to warrants based on probable cause to believe that the target of surveillance is a terrorist, when the desperate need is to find out who is a terrorist."

The ACLU considers the FISA Act to be unconstitutional for several reasons including: the law was designed to mainly address terrorism threats, but in fact intercepts communications that have nothing to do with terrorism or criminal activity of any kind; and that "the government can create huge databases that contain information about U.S. persons obtained without warrants and then search these databases at a later point."

Amendments

USA PATRIOT Act

The Act was amended in 2001 by the USA PATRIOT Act, primarily to include terrorism on behalf of groups that are not specifically backed by a foreign government.

Lone wolf amendment

In 2004, FISA was amended to include a "lone wolf" provision. . A "lone wolf" is a non-U.S. person who engages in or prepares for international terrorism. The provision amended the definition of "foreign power" to permit the FISA courts to issue surveillance and physical search orders without having to find a connection between the "lone wolf" and a foreign government or terrorist group. However, "if the court authorizes such a surveillance or physical search using this new definition of 'agent of a foreign power', the FISC judge has to find, in pertinent part, that, based upon the information provided by the applicant for the order, the target had engaged in or was engaging in international terrorism or activities in preparation therefor"."Lone Wolf" Amendment to the Foreign Intelligence Surveillance Act
via fas.org

Terrorist Surveillance Act of 2006

On March 16, 2006, Senators Mike DeWine (R-OH), Lindsey Graham (R-SC), Chuck Hagel (R-ME) introduced the Terrorist Surveillance Act of 2006 (S.2455), under which the President would be given certain additional limited statutory authority to conduct electronic surveillance of suspected terrorists in the United States subject to enhanced Congressional oversight. Also on March 16, 2006, Senator Arlen Specter (R-PA) introduced the National Security Surveillance Act of 2006 (), which would amend FISA to grant retroactive amnesty for warrantless surveillance conducted under presidential authority and provide FISA court (FISC) jurisdiction to review, authorize, and oversight "electronic surveillance programs". On May 24, 2006, Senator Specter and Senator Dianne Feinstein (D-CA) introduced the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006 () asserting FISA as the exclusive means to conduct foreign intelligence surveillance.

All three competing bills were the subject of Judiciary Committee hearings throughout the summer. On September 13, 2006, the Senate Judiciary Committee voted to approve all three mutually exclusive bills, thus, leaving it to the full Senate to resolve.

On July 18, 2006, U.S. Representative Heather Wilson (R-NM) introduced the Electronic Surveillance Modernization Act (). Wilson's bill would give the President the authority to authorize electronic surveillance of international phone calls and e-mail linked specifically to identified terrorist groups immediately following or in anticipation of an armed or terrorist attack on the United States. Surveillance beyond the initial authorized period would require a FISA warrant or a presidential certification to Congress. On September 28, 2006, the House of Representatives passed Wilson's bill and it was referred to the Senate.

Protect America Act of 2007

On July 28, 2007, President Bush called on Congress to pass legislation to reform the FISA in order to ease restrictions on surveillance of terrorist suspects where one party (or both parties) to the communication are located overseas. He asked that Congress pass the legislation before its August 2007 recess. On August 3, 2007, the Senate passed a Republican-sponsored version of FISA
S. 1927
in a vote of 60 to 28. The House followed by passing the bill, 227–183. The Protect America Act of 2007 (, ) was then signed into law by George W. Bush on 2007-08-05.

Under the Protect America Act of 2007, communications that begin or end in a foreign country may be wiretapped by the U.S. government without supervision by the FISA Court. The Act removes from the definition of "electronic surveillance" in FISA any surveillance directed at a person reasonably believed to be located outside the United States. As such, surveillance of these communications no longer requires a government application to, and order issuing from, the FISA Court.

The Act provides procedures for the government to "certify" the legality of an acquisition program, for the government to issue directives to providers to provide data or assistance under a particular program, and for the government and recipient of a directive to seek from the FISA Court, respectively, an order to compel provider compliance or relief from an unlawful directive. Providers receive costs and full immunity from civil suits for compliance with any directives issued pursuant to the Act.

A summary of key provisions follows. The Act empowers the Attorney General or Director of National Intelligence ("DNI") to authorize, for up to one year, the acquisition of communications concerning "persons reasonably believed to be outside the United States" if the Attorney General and DNI determine that each of five criteria has been met:
* There are reasonable procedures in place for determining that the acquisition concerns persons reasonably believed to be located outside the United States;
* The acquisition does not constitute electronic surveillance (meaning it does not involve solely domestic communications);
* The acquisition involves obtaining the communications data from or with the assistance of a communications service provider who has access to communications;
* A significant purpose of the acquisition is to obtain foreign intelligence information; and
* Minimization procedures outlined in the FISA will be used.

This determination by the Attorney General and DNI must be certified in writing, under oath, and supported by appropriate affidavit(s). If immediate action by the government is required and time does not permit the preparation of a certification, the Attorney General or DNI can direct the acquisition orally, with a certification to follow within 72 hours. The certification is then filed with the FISA Court.

Once the certification is filed with the FISA Court, the Attorney General or DNI can direct a provider to undertake or assist in the undertaking of the acquisition.

If a provider fails to comply with a directive issued by the Attorney General or DNI, the Attorney General may seek an order from the FISA Court compelling compliance with the directive. Failure to obey an order of the FISA Court may be punished as a contempt of court.

Likewise, a person receiving a directive may challenge the legality of that directive by filing a petition with the FISA Court. An initial review must be conducted within 48 hours of the filing to determine whether the petition is frivolous, and a final determination concerning any non-frivolous petitions must be made – in writing – within 72 hours of receipt of the petition.

Determinations of the FISA Court may be appealed to the Foreign Intelligence Court of Appeals, and a petition for a writ of certiorari of a decision from the FICA can be made to the U.S. Supreme Court.

All petitions must be filed under seal.

The Act allows providers to be compensated, at the prevailing rate, for providing assistance as directed by the Attorney General or DNI.

The Act provides explicit immunity from civil suit in any federal or state court for providing any information, facilities, or assistance in accordance with a directive under the Act.

Within 120 days, the Attorney General must submit to the FISA Court for its approval the procedures by which the government will determine that acquisitions authorized by the Act conform with the Act and do not involve purely domestic communications. The FISA Court then will determine whether the procedures comply with the Act. The FISA Court thereafter will enter an order either approving the procedures or directing the government to submit new procedures within 30 days or cease any acquisitions under the government procedures. The government may appeal a ruling of the FISA Court to the FICA and ultimately the Supreme Court.

On a semiannual basis, the Attorney General shall inform the Intelligence and Judiciary Committees of the House and Senate of incidents of noncompliance with a directive issued by the Attorney General or the DNI, incidents of noncompliance with FISA Court-approved procedures by the Intelligence Community, and the number of certifications and directives issued during the reporting period.

The amendments to FISA made by the Act expire 180 days after enactment, except that any order in effect on the date of enactment remains in effect until the date of expiration of such order and such orders can be reauthorized by the FISA Court. The Act expired on February 17, 2008.

Subsequent developments

Legal experts experienced in national security issues are divided on how broadly the new law could be interpreted or applied. Some believe that due to subtle changes in the definitions of terms such as "electronic surveillance", it could empower the government to conduct warrantless physical searches and even seizures of communications and computer devices and their data which belong to U.S. citizens while they are in the United States, if the government contended that those searches and potential seizures were related to its surveillance of parties outside the United States. Intelligence officials, while declining to comment directly on such possibilities, respond that such interpretations are overly broad readings of the act, and unlikely to actually occur.

In a September 10, 2007 address at a symposium on modernizing FISA held at Georgetown University Law Center's National Security Center, Kenneth L. Wainstein, Assistant Attorney General for National Security, argued against the current six-month sunset provision in the Protect America Act of 2007, saying that the broadened surveillance powers the act provides for s