The Foreign Intelligence Surveillance Act of 1978 ("FISA" , ) is a
United States federal law
The law of the United States comprises many levels of codified and uncodified forms of law, of which the most important is the nation's Constitution, which prescribes the foundation of the federal government of the United States, as well as va ...
that establishes procedures for the physical and electronic
surveillance
Surveillance is the monitoring of behavior, many activities, or information for the purpose of information gathering, influencing, managing or directing. This can include observation from a distance by means of electronic equipment, such as c ...
and the collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" suspected of
espionage
Espionage, spying, or intelligence gathering is the act of obtaining secret or confidential information (intelligence) from non-disclosed sources or divulging of the same without the permission of the holder of the information for a tangibl ...
or
terrorism
Terrorism, in its broadest sense, is the use of criminal violence to provoke a state of terror or fear, mostly with the intention to achieve political or religious aims. The term is used in this regard primarily to refer to intentional violen ...
.
[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
The United States Foreign Intelligence Surveillance Court (FISC), also called the FISA Court, is a U.S. federal court established under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants ag ...
(FISC) to oversee requests for surveillance warrants by
federal law enforcement and
intelligence agencies
An intelligence agency is a government agency responsible for the collection, analysis, and exploitation of information in support of law enforcement, national security, military, public safety, and foreign policy objectives.
Means of informatio ...
. It has been repeatedly amended since the
September 11 attacks
The September 11 attacks, commonly known as 9/11, were four coordinated suicide terrorist attacks carried out by al-Qaeda against the United States on Tuesday, September 11, 2001. That morning, nineteen terrorists hijacked four commercia ...
.
History
The Foreign Intelligence Surveillance Act (FISA) was introduced on May 18, 1977, by Senator
Ted Kennedy
Edward Moore Kennedy (February 22, 1932 – August 25, 2009) was an American lawyer and politician who served as a United States senator from Massachusetts for almost 47 years, from 1962 until his death in 2009. A member of the Democratic ...
and was signed into law by President Carter on 25 October 1978. The bill was cosponsored by nine Senators:
Birch Bayh
Birch Evans Bayh Jr. (; January 22, 1928 – March 14, 2019) was an American Democratic Party politician who served as U.S. Senator from Indiana from 1963 to 1981. He was first elected to office in 1954, when he won election to the Indiana ...
,
James O. Eastland
James Oliver Eastland (November 28, 1904 February 19, 1986) was an American attorney, plantation owner, and politician from Mississippi. A Democratic Party (United States), Democrat, he served in the United States Senate in 1941 and again from 1 ...
,
Jake Garn
Edwin Jacob "Jake" Garn (born October 12, 1932) is an American politician and member of the Republican Party who served as a United States senator representing Utah from 1974 to 1993. Garn became the first sitting member of Congress to fly in s ...
,
Walter Huddleston
Walter Darlington "Dee" Huddleston (April 15, 1926 – October 16, 2018) was an American politician. He was a Democrat from Kentucky who represented the state in the United States Senate from 1973 until 1985. Huddleston lost his 1984 Senate re- ...
,
Daniel Inouye
Daniel Ken Inouye ( ; September 7, 1924 – December 17, 2012) was an American lawyer and politician who served as a United States senator from Hawaii from 1963 until his death in 2012. Beginning in 1959, he was the first U.S. representative f ...
,
Charles Mathias
Charles McCurdy Mathias Jr. (July 24, 1922 – January 25, 2010) was an American politician and attorney. A Republican, he served as a member of the United States Senate, representing Maryland from 1969 to 1987. He was also a member of the ...
,
John L. McClellan
John Little McClellan (February 25, 1896 – November 28, 1977) was an American lawyer and a segregationist politician. A member of the Democratic Party, he served as a U.S. Representative (1935–1939) and a U.S. Senator (1943–1977) fro ...
,
Gaylord Nelson
Gaylord Anton Nelson (June 4, 1916July 3, 2005) was an American politician and environmentalist from Wisconsin who served as a United States senator and governor. He was a member of the Democratic Party and the founder of Earth Day, which launche ...
, and
Strom Thurmond
James Strom Thurmond Sr. (December 5, 1902June 26, 2003) was an American politician who represented South Carolina in the United States Senate from 1954 to 2003. Prior to his 48 years as a senator, he served as the 103rd governor of South Caro ...
.
The FISA resulted from extensive investigations by
Senate Committees into the legality of domestic
intelligence
Intelligence has been defined in many ways: the capacity for abstraction, logic, understanding, self-awareness, learning, emotional knowledge, reasoning, planning, creativity, critical thinking, and problem-solving. More generally, it can b ...
activities. These investigations were led separately by
Sam Ervin
Samuel James Ervin Jr. (September 27, 1896April 23, 1985) was an American politician. A Southern Democrats, Democrat, he served as a United States Senate, U.S. Senator from North Carolina from 1954 to 1974. A native of Morganton, North Carolina, ...
and
Frank Church
Frank Forrester Church III (July 25, 1924 – April 7, 1984) was an Americans, American politician and lawyer. A member of the Democratic Party (United States), Democratic Party, he served as a United States Senate, United States senator from Idah ...
in 1978 as a response to President
Richard Nixon
Richard Milhous Nixon (January 9, 1913April 22, 1994) was the 37th president of the United States, serving from 1969 to 1974. A member of the Republican Party, he previously served as a representative and senator from California and was ...
’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
A justice ministry, ministry of justice, or department of justice is a ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of justice (minister for justice in a ...
.
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
''The New York Times'' (''the Times'', ''NYT'', or the Gray Lady) is a daily newspaper based in New York City with a worldwide readership reported in 2020 to comprise a declining 840,000 paid print subscribers, and a growing 6 million paid ...
'' of an article that described a program of
warrantless domestic wiretapping ordered by the Bush administration and carried out by the
National Security Agency
The National Security Agency (NSA) is a national-level intelligence agency of the United States Department of Defense, under the authority of the Director of National Intelligence (DNI). The NSA is responsible for global monitoring, collecti ...
since 2002; a subsequent
Bloomberg Bloomberg may refer to:
People
* Daniel J. Bloomberg (1905–1984), audio engineer
* Georgina Bloomberg (born 1983), professional equestrian
* Michael Bloomberg (born 1942), American businessman and founder of Bloomberg L.P.; politician and ma ...
article suggested that this may have already begun by June 2000.
Provisions
The subchapters of FISA provide for:
* Electronic surveillance ()
* Physical
searches ()
*
Pen register
A pen register, or dialed number recorder (DNR), is an electronic device that records all numbers called from a particular telephone line. The term has come to include any device or program that performs similar functions to an original pen regist ...
s 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
In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general.
In some jurisdictions, attorneys general also have exec ...
, 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
The term United States person or US person is used in various contexts in law of the United States, US laws and regulations with different meanings. It can refer to Natural person, natural persons or Legal person, other entities.
Data collection a ...
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
Sabotage is a deliberate action aimed at weakening a polity, effort, or organization through subversion, obstruction, disruption, or destruction. One who engages in sabotage is a ''saboteur''. Saboteurs typically try to conceal their identitie ...
or
international terrorism
Terrorism, in its broadest sense, is the use of criminal violence to provoke a state of terror or fear, mostly with the intention to achieve political or religious aims. The term is used in this regard primarily to refer to intentional violen ...
.
[(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
The United States Foreign Intelligence Surveillance Court (FISC), also called the FISA Court, is a U.S. federal court established under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants ag ...
,
[, 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
The United States House Permanent Select Committee on Intelligence (HPSCI), also known as the House Intelligence Committee, is a committee of the United States House of Representatives, currently chaired by Adam Schiff. It is the primary committ ...
and the
Senate Select Committee on Intelligence
The United States Senate Select Committee on Intelligence (sometimes referred to as the Intelligence Committee or SSCI) is dedicated to overseeing the United States Intelligence Community—the agencies and bureaus of the federal government of ...
.
[, 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)](_blank)
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 penalties
[50 U.S.C. §1809](_blank)
– Criminal sanctions and civil liabilities.
[50 U.S.C. §1810](_blank)
– 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](_blank)
– 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
In United States criminal law, probable cause is the standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or the issuing of a search warrant. There is no universally accepted definition or f ...
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
The United States Foreign Intelligence Surveillance Court (FISC), also called the FISA Court, is a U.S. federal court established under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants ag ...
(FISC) and enabled it to oversee requests for surveillance warrants by
federal law enforcement and
intelligence agencies
An intelligence agency is a government agency responsible for the collection, analysis, and exploitation of information in support of law enforcement, national security, military, public safety, and foreign policy objectives.
Means of informatio ...
(primarily the
Federal Bureau of Investigation
The Federal Bureau of Investigation (FBI) is the domestic intelligence and security service of the United States and its principal federal law enforcement agency. Operating under the jurisdiction of the United States Department of Justice, ...
and the
National Security Agency
The National Security Agency (NSA) is a national-level intelligence agency of the United States Department of Defense, under the authority of the Director of National Intelligence (DNI). The NSA is responsible for global monitoring, collecti ...
) against suspected foreign
intelligence agents inside the U.S. The court is located within the
E. Barrett Prettyman United States Courthouse
The E. Barrett Prettyman Federal Courthouse is a historic building in Washington, D.C. It was built in 1949–50 and currently houses the United States District Court for the District of Columbia, the United States Court of Appeals for the Distric ...
in
Washington, D.C.
)
, image_skyline =
, image_caption = Clockwise from top left: the Washington Monument and Lincoln Memorial on the National Mall, United States Capitol, Logan Circle, Jefferson Memorial, White House, Adams Morgan, ...
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
In law, ''ex parte'' () is a Latin term meaning literally "from/out of the party/faction of" (name of party/faction, often omitted), thus signifying "on behalf of (name)". An ''ex parte'' decision is one decided by a judge without requiring all ...
'' and non-adversarial. The court hears evidence presented solely by the
Department of Justice
A justice ministry, ministry of justice, or department of justice is a ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of justice (minister for justice in a v ...
. There is no provision for a release of information regarding such hearings, or for the record of information actually collected. The
USA Freedom Act
The USA Freedom Act (, ) is a U.S. law enacted on June 2, 2015, that restored and modified several provisions of the Patriot Act, which had expired the day before. The act imposes some new limits on the bulk collection of telecommunication metada ...
(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
A search warrant is a court order that a magistrate or judge issues to authorize law enforcement officers to conduct a search of a person, location, or vehicle for evidence of a crime and to confiscate any evidence they find. In most countries, ...
. 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
Color (American English) or colour (British English) is the visual perceptual property deriving from the spectrum of light interacting with the photoreceptor cells of the eyes. Color categories and physical specifications of color are associ ...
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
A cause of action or right of action, in law, is a set of facts sufficient to justify suing to obtain money or property, or to justify the enforcement of a legal right against another party. The term also refers to the legal theory upon which a p ...
for private individuals whose communications were unlawfully monitored. The statute permits actual
damages
At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
of not less than $1,000 or $100 per day. In addition, that statute authorizes
punitive damages
Punitive damages, or exemplary damages, are damages assessed in order to punish the defendant for outrageous conduct and/or to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. ...
and an award of
attorney's fees
Attorney's fee is a chiefly United States term for compensation for legal services performed by an attorney (lawyer or law firm) for a client, in or out of court. It may be an hourly, flat-rate or contingent fee. Recent studies suggest that when l ...
.
Similar liability is found under the subchapter pertaining to physical searches. In both cases, the statute creates an
affirmative defense
An affirmative defense to a civil lawsuit or criminal charge is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant's o ...
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
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
held that the requirements of the
Fourth Amendment applied equally to electronic surveillance and to physical searches. ''
Katz v. United States
''Katz v. United States'', 389 U.S. 347 (1967), was a landmark decision of the U.S. Supreme Court in which the Court redefined what constitutes a "search" or "seizure" with regard to the protections of the Fourth Amendment to the U.S. Constitution ...
'', 389 U.S. 347 (1967). The Court did not address whether such requirements apply to issues of
national security
National security, or national defence, is the security and defence of a sovereign state, including its citizens, economy, and institutions, which is regarded as a duty of government. Originally conceived as protection against military atta ...
. 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
constitutional
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.
When these princip ...
ity of FISA. Two lower court decisions found FISA constitutional. In ''United States v. Duggan'', the
defendant
In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.
Terminology varies from one jurisdic ...
s were members of the
Irish Republican Army
The Irish Republican Army (IRA) is a name used by various paramilitary organisations in Ireland throughout the 20th and 21st centuries. Organisations by this name have been dedicated to irredentism through Irish republicanism, the belief tha ...
. 743 F.2d 59 (2d Cir. 1984). They were convicted for various violations regarding the shipment of
explosive
An explosive (or explosive material) is a reactive substance that contains a great amount of potential energy that can produce an explosion if released suddenly, usually accompanied by the production of light, heat, sound, and pressure. An expl ...
s and
firearm
A firearm is any type of gun designed to be readily carried and used by an individual. The term is legally defined further in different countries (see Legal definitions).
The first firearms originated in 10th-century China, when bamboo tubes ...
s. 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
Evidence for a proposition is what supports this proposition. It is usually understood as an indication that the supported proposition is true. What role evidence plays and how it is conceived varies from field to field.
In epistemology, evidenc ...
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
In United States constitutional law, a Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibits arbitrary deprivation of "life, liberty, or property" by the government except as ...
of the
Fifth Amendment,
Equal protection
The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "''nor shall any State ... deny to any person within its jurisdiction the equa ...
,
Separation of powers
Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...
, nor the
Right to counsel
In criminal law, the right to counsel means a defendant has a legal right to have the assistance of counsel (i.e., lawyers) and, if the defendant cannot afford a lawyer, requires that the government appoint one or pay the defendant's legal exp ...
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
ave
''Alta Velocidad Española'' (''AVE'') is a service of high-speed rail in Spain operated by Renfe, the Spanish national railway company, at speeds of up to . As of December 2021, the Spanish high-speed rail network, on part of which the AVE s ...
held 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
The Heritage Foundation (abbreviated to Heritage) is an American conservative think tank based in Washington, D.C. that is primarily geared toward public policy. The foundation took a leading role in the conservative movement during the presiden ...
, 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
Globalization, or globalisation (Commonwealth English; see spelling differences), is the process of interaction and integration among people, companies, and governments worldwide. The term ''globalization'' first appeared in the early 20t ...
of
telecommunication
Telecommunication is the transmission of information by various types of technologies over wire, radio, optical, or other electromagnetic systems. It has its origin in the desire of humans for communication over a distance greater than that fe ...
infrastructure; and the development of automated monitoring techniques, including
data mining and
traffic analysis
Traffic analysis is the process of intercepting and examining messages in order to deduce information from patterns in communication, it can be performed even when the messages are encrypted. In general, the greater the number of messages observed ...
.
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
Edward Hirsch Levi (June 26, 1911 – March 7, 2000) was an American law professor, academic leader, and government lawyer. He served as dean of the University of Chicago Law School from 1950 to 1962, president of the University of Chicago from ...
to the
Church Committee
The Church Committee (formally the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities) was a US Senate select committee in 1975 that investigated abuses by the Central Intelligence ...
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
Richard Allen Posner (; born January 11, 1939) is an American jurist and legal scholar who served as a federal appellate judge on the U.S. Court of Appeals for the Seventh Circuit from 1981 to 2017. A senior lecturer at the University of Chica ...
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
The USA PATRIOT Act (commonly known as the Patriot Act) was a landmark Act of Congress, Act of the United States Congress, signed into law by President of the United States, President George W. Bush. The formal name of the statute is the Uniti ...
, 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](_blank)
via fas.org
Terrorist Surveillance Act of 2006
On March 16, 2006, Senators
Mike DeWine
Richard Michael DeWine (; born January 5, 1947) is an American politician and attorney serving as the 70th and current governor of Ohio. A member of the Republican Party, DeWine began his career as a prosecutor before being elected to the O ...
(R-OH),
Lindsey Graham
Lindsey Olin Graham (born July 9, 1955) is an American lawyer and politician serving as the senior United States senator from South Carolina, a seat he has held since 2003. A member of the Republican Party, Graham chaired the Senate Committee ...
(R-SC),
Chuck Hagel
Charles Timothy Hagel ( born October 4, 1946)[Olympia Snowe
Olympia Jean Snowe (; born February 21, 1947) is an American businesswoman and politician who was a United States Senator from Maine from 1995 to 2013. Snowe, a member of the Republican Party, became known for her ability to influence the outcom ...]
(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
Arlen Specter (February 12, 1930 – October 14, 2012) was an American lawyer, author and politician who served as a United States Senator from Pennsylvania from 1981 to 2011. Specter was a Democrat from 1951 to 1965, then a Republican from ...
(R-PA) introduced the
National Security Surveillance Act of 2006
The National Security Surveillance Act ({{USBill, 109, S, 2453) was a bill in the United States Congress that would have established procedures for the review of electronic surveillance programs. It was similar to the Military Commissions Act of ...
(), 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
Dianne Goldman Berman Feinstein ( ; born Dianne Emiel Goldman; June 22, 1933) is an American politician who serves as the senior United States senator from California, a seat she has held since 1992. A member of the Democratic Party, she was ...
(D-CA) introduced the
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
Heather Ann Wilson (born December 30, 1960) is the 11th President of the University of Texas at El Paso. She previously served as the 24th Secretary of the United States Air Force from 2017 through 2019. Wilson was the 12th president of the Sou ...
(R-NM) introduced the
Electronic Surveillance Modernization Act The Electronic Surveillance Modernization Act ( of the 109th Congress) was passed on September 28, 2006, by a vote 232 to 191. It has been referred to the United States Senate
The United States Senate is the upper chamber of the United Stat ...
(). 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
The Protect America Act of 2007 (PAA), (, enacted by ), is a controversial amendment to the Foreign Intelligence Surveillance Act (FISA) that was signed into law by U.S. President George W. Bush on August 5, 2007. It removed the warrant requi ...
(, ) was then signed into law by
George W. Bush
George Walker Bush (born July 6, 1946) is an American politician who served as the 43rd president of the United States from 2001 to 2009. A member of the Republican Party, Bush family, and son of the 41st president George H. W. Bush, he ...
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
In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
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
The Georgetown University Law Center (Georgetown Law) is the law school of Georgetown University, a private research university in Washington, D.C. It was established in 1870 and is the largest law school in the United States by enrollment and ...
's National Security Center,
Kenneth L. Wainstein,
Assistant Attorney General for National Security, argued against the current six-month
sunset provision
In public policy, a sunset provision or sunset clause is a measure within a statute, regulation or other law that provides that the law shall cease to have effect after a specific date, unless further legislative action is taken to extend the law ...
in the Protect America Act of 2007, saying that the broadened surveillance powers the act provides for should be made permanent. Wainstein proposed that internal audits by the Office of the
Director of National Intelligence
The director of national intelligence (DNI) is a senior, cabinet-level United States government official, required by the Intelligence Reform and Terrorism Prevention Act of 2004 to serve as executive head of the United States Intelligence Commu ...
and the
National Security Division of the Justice Department, with reporting to select groups of Congressmen, would ensure that the expanded capability would not be abused.
Also on September 10, DNI
Mike McConnell testified before the
Senate Committee on Homeland Security and Governmental Affairs
The United States Senate Committee on Homeland Security and Governmental Affairs is the chief oversight committee of the United States Senate. It has jurisdiction over matters related to the Department of Homeland Security and other homeland s ...
that the Protect America Act had helped foil a major terror plot in Germany. U.S. intelligence-community officials questioned the accuracy of McConnell's testimony and urged his office to correct it, which he did in a statement issued September 12, 2007. Critics cited the incident as an example of the Bush administration's exaggerated claims and contradictory statements about surveillance activities. Counterterrorism officials familiar with the background of McConnell's testimony said they did not believe he made inaccurate statements intentionally as part of any strategy by the administration to persuade Congress to make the new eavesdropping law permanent. Those officials said they believed McConnell gave the wrong answer because he was overwhelmed with information and merely mixed up his facts.
Speaking at
National Security Agency
The National Security Agency (NSA) is a national-level intelligence agency of the United States Department of Defense, under the authority of the Director of National Intelligence (DNI). The NSA is responsible for global monitoring, collecti ...
headquarters in Fort Meade, Maryland on September 19, 2007, President
George W. Bush
George Walker Bush (born July 6, 1946) is an American politician who served as the 43rd president of the United States from 2001 to 2009. A member of the Republican Party, Bush family, and son of the 41st president George H. W. Bush, he ...
urged Congress to make the provisions of the Protect America Act permanent. Bush also called for retroactive immunity for telecommunications companies who had cooperated with government surveillance efforts, saying, "It's particularly important for Congress to provide meaningful liability protection to those companies now facing multibillion-dollar lawsuits only because they are believed to have assisted in efforts to defend our nation, following the 9/11 attacks".
On October 4, 2007, the bipartisan Liberty and Security Committee of the
Constitution Project
The Constitution Project is a non-profit think tank in the United States whose goal is to build bipartisan consensus on significant constitutional and legal questions. Its founder and president is Virginia Sloan. The Constitution Project’s work ...
, co-chaired by
David Keene
David Arthur Keene (born May 20, 1945) is an American political consultant, former presidential advisor, and newspaper editor, formerly the Opinion Editor of ''The Washington Times''. Keene was the president of the National Rifle Association for ...
and
David D. Cole
David D. Cole is the National Legal Director of the American Civil Liberties Union (ACLU). Before joining the ACLU in July 2016, Cole was the Hon. George J. Mitchell Professor in Law and Public Policy at the Georgetown University Law Center from ...
, issued its "Statement on the Protect America Act". The Statement urged Congress not to reauthorize the PAA, saying the language of the bill "runs contrary to the tripartite balance of power the Framers envisioned for our constitutional democracy, and poses a serious threat to the very notion of government of the people, by the people and for the people". Some in the legal community have questioned the constitutionality of any legislation that would retroactively immunize telecommunications firms alleged to have cooperated with the government from civil liability for having potentially violated their customers' privacy rights.
In an article appearing in the January/February 2008 issue of the
Institute of Electrical and Electronics Engineers
The Institute of Electrical and Electronics Engineers (IEEE) is a 501(c)(3) professional association for electronic engineering and electrical engineering (and associated disciplines) with its corporate office in New York City and its operation ...
journal of Security and Privacy, noted technology experts from academia and the computing industry found significant flaws in the technical implementation of the Protect America Act which they said created serious security risks, including the danger that such a surveillance system could be exploited by unauthorized users, criminally misused by trusted insiders, or abused by the government.
On October 7, 2007, ''
The Washington Post
''The Washington Post'' (also known as the ''Post'' and, informally, ''WaPo'') is an American daily newspaper published in Washington, D.C. It is the most widely circulated newspaper within the Washington metropolitan area and has a large nati ...
'' reported that House Democrats planned to introduce alternative legislation which would provide for one-year "umbrella" warrants, and would require the
Justice Department Inspector General
The Office of the Inspector General (OIG) for the Department of Justice (DOJ) is responsible for conducting nearly all of the investigations of DOJ employees and programs. The office has several hundred employees, reporting to the Inspector Gener ...
to audit the use of those warrants and issue quarterly reports to a special FISA court and to Congress. The proposed bill would not include immunity for telecommunications firms facing lawsuits in connection with the administration's
NSA warrantless surveillance
The National Security Agency (NSA) is a national-level intelligence agency of the United States Department of Defense, under the authority of the Director of National Intelligence (DNI). The NSA is responsible for global monitoring, collectio ...
program. House Democrats said that as long as the administration withholds requested documents explaining the basis for the program that they cannot consider immunity for firms alleged to have facilitated it. On October 10, 2007, comments on the White House South Lawn, President Bush said he would not sign any bill that did not provide retroactive immunity for telecommunications corporations.
On October 18, 2007, the House Democratic leadership put off a vote on the proposed legislation by the full chamber to avoid consideration of a Republican measure that made specific references to
Osama bin Laden
Osama bin Mohammed bin Awad bin Laden (10 March 1957 – 2 May 2011) was a Saudi-born extremist militant who founded al-Qaeda and served as its leader from 1988 until Killing of Osama bin Laden, his death in 2011. Ideologically a Pan-Islamism ...
. At the same time, the
Senate Intelligence Committee
The United States Senate Select Committee on Intelligence (sometimes referred to as the Intelligence Committee or SSCI) is dedicated to overseeing the United States Intelligence Community—the agencies and bureaus of the federal government of ...
reportedly reached a compromise with the White House on a different proposal that would give telephone carriers legal immunity for any role they played in the National Security Agency's domestic eavesdropping program approved by President Bush after the Sept. 11 terrorist attacks.
On November 15, 2007, the
Senate Judiciary Committee
The United States Senate Committee on the Judiciary, informally the Senate Judiciary Committee, is a standing committee of 22 U.S. senators whose role is to oversee the Department of Justice (DOJ), consider executive and judicial nominations, a ...
voted 10–9 along party lines to send an alternative measure to the full Senate other than the one the intelligence committee had crafted with the White House. The proposal would leave to the full Senate whether or not to provide retroactive immunity to telecommunications firms that cooperated with the NSA. Judiciary Committee chairman
Patrick Leahy
Patrick Joseph Leahy (; born March 31, 1940) is an American politician and attorney who is the senior United States senator from Vermont and serves as the president pro tempore of the United States Senate. A member of the Democratic Party, ...
said that granting such immunity would give the Bush administration a "blank check" to do what it wants without regard to the law.
Arlen Specter
Arlen Specter (February 12, 1930 – October 14, 2012) was an American lawyer, author and politician who served as a United States Senator from Pennsylvania from 1981 to 2011. Specter was a Democrat from 1951 to 1965, then a Republican from ...
of Pennsylvania, the top Republican on the committee, said that court cases may be the only way Congress can learn exactly how far outside the law the administration has gone in eavesdropping in the United States. When the full Senate takes up the bill, Specter is expected to offer a compromise that would shield the companies from financial ruin but allow lawsuits to go forward by having the federal government stand in for the companies at trial.
On the same day, the House of Representatives voted 227–189 to approve a Democratic bill that would expand court oversight of government surveillance inside the United States while denying immunity to telecom companies.
House Judiciary Committee
The U.S. House Committee on the Judiciary, also called the House Judiciary Committee, is a standing committee of the United States House of Representatives. It is charged with overseeing the administration of justice within the federal courts, a ...
chairman
John Conyers
John James Conyers Jr. (May 16, 1929October 27, 2019) was an American politician of the Democratic Party who served as a U.S. representative from Michigan from 1965 to 2017. The districts he represented always included part of western Detroit. ...
left the door open to an immunity deal in the future, but said that the White House must first give Congress access to classified documents specifying what the companies did that requires legal immunity.
In February 2008, the Senate passed the version of the
new FISA that would allow telecom companies immunity. On March 13, 2008, the U.S. House of Representatives held a secret session to discuss related information. On March 14, the House voted 213–197 to approve a bill that would ''not'' grant telecom immunity – far short of the 2/3 majority required to override a Presidential veto. The Senate and House bills are compared and contrasted in a June 12, 2008 report from the
Congressional Research Service
The Congressional Research Service (CRS) is a public policy research institute of the United States Congress. Operating within the Library of Congress, it works primarily and directly for members of Congress and their committees and staff on a c ...
.
On March 13, 2008, the House of Representatives held a secret, closed door meeting to debate changes to the FISA bill.
Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008
The
FISA Amendments Act of 2008
The FISA Amendments Act of 2008, also called the FAA and Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, is an Act of Congress that amended the Foreign Intelligence Surveillance Act. It has been used as the legal basis fo ...
passed by the
United States Congress
The United States Congress is the legislature of the federal government of the United States. It is bicameral, composed of a lower body, the House of Representatives, and an upper body, the Senate. It meets in the U.S. Capitol in Washing ...
on July 9, 2008. The amendments added a new Title VII to the Act, which was stated to expire at the end of 2012, but Congress extended the provisions to December 31, 2017.
The 2008 amendments gave telecoms immunity, increased the time allotted for warrantless surveillance, and adds provisions for emergency eavesdropping. On June 20, 2008, the House of Representatives passed the amendment with a vote of 293 to 129.
It passed in the Senate 69 to 28 on July 9, 2008 after a failed attempt to strike Title II from the bill by Senator Dodd. On July 10, 2008, President Bush signed it into law.
2015 USA Freedom Act
On June 2, 2015, many provisions of the 1978 Foreign Intelligence Surveillance Act were changed with the passage of the
USA Freedom Act
The USA Freedom Act (, ) is a U.S. law enacted on June 2, 2015, that restored and modified several provisions of the Patriot Act, which had expired the day before. The act imposes some new limits on the bulk collection of telecommunication metada ...
.
The 2015 law overhauled the powerful United States
National Security Agency
The National Security Agency (NSA) is a national-level intelligence agency of the United States Department of Defense, under the authority of the Director of National Intelligence (DNI). The NSA is responsible for global monitoring, collecti ...
and required the US government to undergo standard court procedures in order to gather data regarding suspicious activities.
However, the law did not completely repeal the controversial Patriot Act and allowed some provisions to expire in later time.
FISA Amendments Reauthorization Act of 2017
After months of congressional hearings and some public controversy, following a short-term extension of three weeks, Congress passed a six-year extension
of the FISA Amendments Act of 2008, which was signed into law in January, 2018.
The government initiated efforts in late 2016 and throughout 2017 to persuade Congress to extend the surveillance authority in Title VII of the Act, which (pursuant to the 2008 and 2012 amendments noted above) was slated to expire on December 31, 2017.
Tom Cotton
Thomas Bryant Cotton (born May 13, 1977) is an American politician, attorney, and former military officer serving as the junior United States senator for Arkansas since 2015. A member of the Republican Party, he served in the U.S. House of R ...
, a Republican Senator from Arkansas, introduced a bill to permanently extend the provisions of Title VII with no changes, but the bill did not advance, as many in Congress were seeking reforms to address privacy concerns. The
United States House Committee on the Judiciary
The U.S. House Committee on the Judiciary, also called the House Judiciary Committee, is a standing committee of the United States House of Representatives. It is charged with overseeing the administration of justice within the federal courts, a ...
introduced an extension bill with significant proposed reforms, as did the
United States House Permanent Select Committee on Intelligence
The United States House Permanent Select Committee on Intelligence (HPSCI), also known as the House Intelligence Committee, is a committee of the United States House of Representatives, currently chaired by Adam Schiff. It is the primary committ ...
, but ultimately a version of the extension with less significant reforms was advanced by
United States Senate Select Committee on Intelligence
The United States Senate Select Committee on Intelligence (sometimes referred to as the Intelligence Committee or SSCI) is dedicated to overseeing the United States Intelligence Community—the agencies and bureaus of the federal government of ...
, and in effect that version, through a complex series of amendments was ultimately enacted into law . The Senate agreed to a House amendment on January 18, 2018, and the
President
President most commonly refers to:
*President (corporate title)
*President (education), a leader of a college or university
*President (government title)
President may also refer to:
Automobiles
* Nissan President, a 1966–2010 Japanese ful ...
signed the legislation, S. 139, the FISA Amendments Reauthorization Act of 2017 (Public Law 115–118), into law on January 19, 2018.
[
FISA Section 702 allows the National Security Agency to conduct searches of foreigners' communications without any warrant. The process incidentally collects information from Americans.] Section 702 of FISA more specifically "brings under FISC
Under the Merovingians and Carolingians, the fisc (from Latin ''fiscus,'' whence we derive "fiscal") applied to the royal demesne which paid taxes, entirely in kind, from which the royal household was meant to be supported, though it rarely was. ...
jurisdiction various intelligence-collection programs that target categories of non-Americans outside the United States. These foreigners also communicate with Americans, so the latter are incidentally intercepted." The FISA Amendments Reauthorization Act of 2017 extends Section 702 for six years, to December 31, 2023, and most notably included new restrictions on querying surveillance databases, prohibited the resumption of certain types of collection about a target that were not directly addressed to or from that target, unless Congress approved such collection within 30 days of having been notified of the resumption, and provided for additional reporting by the Executive Branch of surveillance activities. Many privacy and civil liberties advocates argued that the reforms enacted by the extension bill were inadequate, but their arguments were successfully opposed by the government.
The January 2018 law also made unauthorized removal and retention of classified information of the United States government a felony crime punishable by five years imprisonment and/or a fine.
See also
* Church Committee
The Church Committee (formally the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities) was a US Senate select committee in 1975 that investigated abuses by the Central Intelligence ...
* Electronic Communications Privacy Act
Electronic Communications Privacy Act of 1986 (ECPA) was enacted by the United States Congress to extend restrictions on government wire taps of telephone calls to include transmissions of electronic data by computer ( ''et seq.''), added new pro ...
* NSA warrantless surveillance controversy
The National Security Agency (NSA) is a national-level intelligence agency of the United States Department of Defense, under the authority of the Director of National Intelligence (DNI). The NSA is responsible for global monitoring, collectio ...
* Operation Minaret
* Project Shamrock
Project SHAMROCK was the sister project to Project MINARET, an espionage exercise started in August 1945. Project MINARET involved the accumulation of all telegraphic data that entered or exited the United States. The Armed Forces Security Agency ...
* Watergate
The Watergate scandal was a major political scandal in the United States involving the administration of President Richard Nixon from 1972 to 1974 that led to Nixon's resignation. The scandal stemmed from the Nixon administration's continual ...
* '' United States v. United States District Court, Plamondon''
* United States Foreign Intelligence Surveillance Court
The United States Foreign Intelligence Surveillance Court (FISC), also called the FISA Court, is a U.S. federal court established under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants aga ...
**
References
Further reading
* Greenwald, Glenn.
Fisa court oversight: a look inside a secret and empty process
" ''The Guardian
''The Guardian'' is a British daily newspaper. It was founded in 1821 as ''The Manchester Guardian'', and changed its name in 1959. Along with its sister papers ''The Observer'' and ''The Guardian Weekly'', ''The Guardian'' is part of the Gu ...
''. Tuesday June 18, 2013.
* Roberts, Dan.
US must fix secret Fisa courts, says top judge who granted surveillance orders
" ''The Guardian
''The Guardian'' is a British daily newspaper. It was founded in 1821 as ''The Manchester Guardian'', and changed its name in 1959. Along with its sister papers ''The Observer'' and ''The Guardian Weekly'', ''The Guardian'' is part of the Gu ...
''. Tuesday July 9, 2013.
External links
Foreign Intelligence Surveillance Act of 1978
PDFdetails
as amended in the GPO GPO may refer to:
Government and politics
* General Post Office, Dublin
* General Post Office, in Britain
* Social Security Government Pension Offset, a provision reducing benefits
* Government Pharmaceutical Organization, a Thai state enterpris ...
br>Statute Compilations collection
*
EPIC FISA page
resources from the Federation of American Scientists
The Foreign Intelligence Surveillance Act: A Brief Overview of Selected Issues
Congressional Research Service, February 8, 2008
The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and Recent Judicial Decisions
Congressional Research Service, September 22, 2004
* ttps://fas.org/irp/agency/doj/fisa/2004rept.pdf 2004 FISA Annual Report to Congress via FAS
FBI memo, "What do I have to do to get a FISA?
"So Judge, How Do I Get That FISA Warrant?" The Policy and Procedure for Conducting Electronic Surveillance.
The Army Lawyer, October 1997
* – Jimmy Carter's Executive order to provide as set forth in FISA for the authorization of electronic surveillance for foreign intelligence purposes
* – Bill Clinton's Executive order to provide for the authorization of physical searches for foreign intelligence purposes
* David Alan Jordan
Decrypting the Fourth Amendment: Warrantless NSA Surveillance and the Enhanced Expectation of Privacy Provided by Encrypted Voice over Internet Protocol
– ''Boston College Law Review'', Vol. 47, 2006
* K. A. Taipale K. A. (Kim) Taipale is an investor, legal scholar, and social theorist specializing in information, technology, and national security policy. He is a partner in Stilwell Holding, a private investment firm, and the former chairman of the executive c ...
''The Ear of Dionysus: Rethinking Foreign Intelligence Surveillance''
9 Yale J. L. & Tech. 128 (Spring 2007).
Plural Politics Protect American Act Plainspeak Legal Primer
*
at the Georgetown University Law Center's National Security Center Symposium on Foreign Intelligence Surveillance Act Modernization, September 10, 2007
*
"The Need to Roll Back Presidential Power Grabs"
by Arlen Specter
Arlen Specter (February 12, 1930 – October 14, 2012) was an American lawyer, author and politician who served as a United States Senator from Pennsylvania from 1981 to 2011. Specter was a Democrat from 1951 to 1965, then a Republican from ...
, ''The New York Review of Books
''The New York Review of Books'' (or ''NYREV'' or ''NYRB'') is a semi-monthly magazine with articles on literature, culture, economics, science and current affairs. Published in New York City, it is inspired by the idea that the discussion of i ...
'', Volume 56, Number 8. May 14, 2009
{{Authority control
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American intelligence gathering law
United States foreign relations legislation
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1978 in international relations