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Foreign Intelligence Surveillance Act


Foreign Intelligence Surveillance Act

Foreign Intelligence Surveillance Act of 1978
Great Seal of the United States
Long title An Act to authorize electronic surveillance to obtain foreign intelligence information.
Acronyms (colloquial) FISA
Enacted by the 95th United States Congress
Effective October 25, 1979
Public law 95-511
Statutes at Large 92 Stat. 1783
Titles amended 50 U.S.C.: War and National Defense
U.S.C. sections created 50 U.S.C. ch. 36 § 1801 et seq.
Legislative history
  • Introduced in the Senate as S. 1566 by Edward Kennedy (DMA) on May 18, 1977
  • Committee consideration by Senate Select Committee on Intelligence, Committee on the Judiciary
  • Passed the Senate on March 20, 1978 (95-1)
  • Passed the House on September 7, 1978 (246-128, in lieu of H.R. 7308)
  • Reported by the joint conference committee on October 5, 1978; agreed to by the Senate on October 9, 1978 (Without objection) and by the House on October 12, 1978 (226-176)
  • Signed into law by President Jimmy Carter on October 25, 1978
Major amendments

The Foreign Intelligence Surveillance Act of 1978 ("FISA" Pub.L. 95–511, 92 Stat. 1783, 50 U.S.C. ch. 36) is a United States federal law which prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" (which may include American citizens and permanent residents suspected of espionage or terrorism).[1] It has been repeatedly amended since the September 11 attacks.


  • Subsequent amendments 1
  • History 2
    • Warrantless domestic wiretapping program 2.1
  • Scope and limits 3
  • Provisions 4
    • Electronic surveillance 4.1
      • Without a court order 4.1.1
      • With a court order 4.1.2
    • Physical searches 4.2
    • FISA court 4.3
    • Remedies for violations 4.4
    • Lone wolf amendment 4.5
  • Constitutionality 5
    • Before FISA 5.1
    • Post-FISA 5.2
  • Criticism 6
  • Amendments 7
    • Terrorist Surveillance Act of 2006 7.1
    • Protect America Act of 2007 7.2
      • Subsequent developments 7.2.1
    • Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 7.3
  • See also 8
  • References 9
  • Further reading 10
  • External links 11

Subsequent amendments

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.

An overhaul of the bill, the Protect America Act of 2007 was signed into law on August 5, 2007.[2] It expired on February 17, 2008.

The FISA Amendments Act of 2008 passed by the United States Congress on July 9, 2008.[3]


The Foreign Intelligence Surveillance Act (FISA) was introduced on May 18, 1977, by Senator Ted Kennedy and was signed into law by President Carter in 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 to spy on political and activist groups.[4] 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. It allowed surveillance, without court order, within the United States for up to one year unless the "surveillance will acquire the contents of any communication to which a United States person is a party". If a United States person is involved, judicial authorization was required within 72 hours after surveillance begins.

Warrantless domestic wiretapping program

The Act came into public prominence in December 2005 following publication by the New York Times of an article[5] 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[6] suggested that this may have already begun by June 2000.

Scope and limits

For most purposes, including electronic surveillance and physical searches, "foreign powers" means a foreign government, any faction(s) or foreign governments not substantially composed of U.S. persons, and any entity directed or controlled by a foreign government. §§1801(a)(1)-(3) The definition also includes groups engaged in international terrorism and foreign political organizations. §§1801(a)(4) and (5). The sections of FISA authorizing electronic surveillance and physical searches without a court order specifically exclude their application to groups engaged in international terrorism. See §1802(a)(1) (referring specifically to §1801(a)(1), (2), and (3)).

The statute includes limits on how it may be applied to U.S. persons. A "U.S. person" includes citizens, lawfully admitted permanent resident aliens, and corporations incorporated in the United States.

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.[7]

In sum, a significant purpose of the electronic surveillance must be to obtain intelligence in the United States on foreign powers (such as enemy agents or spies) or individuals connected to international terrorist groups. To use FISA, the government must show probable cause that the “target of the surveillance is a foreign power or agent of a foreign power.”[2][8]


The subchapters of FISA provide for:

  • Electronic surveillance (50 U.S.C. ch. 36, subch. I)
  • Physical searches (50 U.S.C. ch. 36, subch. II)
  • Pen registers and trap & trace devices for foreign intelligence purposes (50 U.S.C. ch. 36, subch. III)
  • Access to certain business records for foreign intelligence purposes (50 U.S.C. ch. 36, subch. IV)
  • Reporting requirement (50 U.S.C. ch. 36, subch. V)

The Act created a court which 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.[9] This number has steadily grown to 2,224 warrants in 2006.[10] 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 together, of warrants for legal purposes), and only 5 were definitively rejected.[11]

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 it is only for foreign intelligence information;[7] targeting foreign powers as defined by 50 U.S.C. § 1801(a)(1),(2),(3)[12] in certain conditions; and there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.[13]

The Attorney General is required to make a certification of these conditions under seal to the Foreign Intelligence Surveillance Court,[14] and report on their compliance to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence.[15]


  • The Electronic Frontier Foundation's Foreign Intelligence Surveillance Act FAQ at the Wayback Machine (archived March 3, 2006)
  • EPIC FISA page
  • Foreign Intelligence Surveillance Act 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
  • NOW on PBS Uncovers Surveillance Details Through AT&T Whistleblower
  • 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
  • Executive Order 12139 – Jimmy Carter's Executive order to provide as set forth in FISA for the authorization of electronic surveillance for foreign intelligence purposes
  • Executive Order 12949 – 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, The Ear of Dionysus: Rethinking Foreign Intelligence Surveillance, 9 Yale J. L. & Tech. 128 (Spring 2007).
  • Plural Politics Protect American Act Plainspeak Legal Primer
  • Guide to lawful intercept legislation around the world at the Wayback Machine (archived October 30, 2007)
  • Prepared Remarks of Kenneth L. Wainstein, Assistant Attorney General for National Security at the Georgetown University Law Center's National Security Center Symposium on Foreign Intelligence Surveillance Act Modernization, September 10, 2007
  • Department of Justice on FISA and the Protect America Act
  • OpenCongress on S.2248 Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007 at the Wayback Machine (archived February 27, 2008)
  • Secret House meeting on FISA
  • The Need to Roll Back Presidential Power Grabs, by Arlen Specter, The New York Review of Books, Volume 56, Number 8 · May 14, 2009

External links

  • Greenwald, Glenn. "Fisa court oversight: a look inside a secret and empty process." The Guardian. Tuesday June 18, 2013.
  • Roberts, Dan. "US must fix secret Fisa courts, says top judge who granted surveillance orders." The Guardian. Tuesday July 9, 2013.

Further reading

  1. ^ 50 USC §1801(b) "“Agent of a foreign power” means--
    (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)."
  2. ^ Weiner, Eric (October 18, 2007). "The Foreign Service Intelligence Act: A Primer". National Public Radio. 
  3. ^ "U.S. Senate Roll Call Vote Summary, Vote 00168, 100th Congress, 2nd Session". July 9, 2008. 
  4. ^ FISA Debate Involves More Than Terrorism – Daily Nexus at the Wayback Machine (archived January 23, 2009)
  5. ^ "Bush Lets U.S. Spy on Callers Without Courts" (Dec. 16, 2005)
  6. ^ Spy Agency Sought U.S. Call Records Before 9/11, Lawyers Say
  7. ^ a b 50 U.S.C. § 1801(e) Definition of Foreign intelligence information
  8. ^ Rosenbach, Eric, and Aki J. Peritz. Confrontation or Collaboration? Congress and the Intelligence Community. Belfer Center for Science and International Affairs. June 12, 2009. Harvard Kennedy School. July 21, 2009 .
  9. ^ Foreign Intelligence Surveillance Act 1980 Annual Report
  10. ^
  11. ^ EPIC: FISA Orders 1979–2006
  12. ^ 50 U.S.C. § 1801(a) Definition of Foreign power
  13. ^ 50 U.S.C. § 1802(a)(1), Conditions under which the President, through the Attorney General, may authorize electronic surveillance without a court order
  14. ^ 50 U.S.C. § 1802(a)(3), Requirement of the Attorney General's to file reports under seal on warrantless surveillance to the FISC
  15. ^ 50 U.S.C. § 1802(a)(2), Requirement of the Attorney General's to report on compliance with warrantless surveillance requirements to Congress
  16. ^ 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)
  17. ^ a b 50 U.S.C. §1809 – Criminal sanctions
  18. ^ a b 50 U.S.C. §1810 – Civil liability
  19. ^ 50 U.S.C. § 1811 – Authorization during time of war
  20. ^ 50 U.S.C. § 1805(a) Electronic surveillance with a court order
  21. ^ 50 U.S.C. § 1801(h) Minimization procedures definition
  22. ^ 50 U.S.C. § 1805(d) Duration of order; extensions; review of circumstances under which information was acquired, retained or disseminated
  23. ^ “Lone Wolf” Amendment to the Foreign Intelligence Surveillance Act, via
  24. ^ Commentary, Wash. Times, January 24, 2006
  25. ^ Why We Listen, New York Times, January 30, 2006
  26. ^ The Eavesdropping Debate We Should be Having
  27. ^ Whispering Wires and Warrantless Wiretaps, N.Y.U. Rev. L. & Sec., No. VII Supl. (Spring 2006)
  28. ^ "A historical solution to the Bush spying issue," Chicago Tribune (February 12, 2006)
  29. ^  
  30. ^ Press Release of Senator DeWine
  31. ^ Dewine Bill as introduced
  32. ^ Specter Floor Statement
  33. ^ Specter Bill as introduced
  34. ^ Specter Offers Compromise on NSA Surveillance, Washington Post, June 9, 2006
  35. ^ FIS linking to 2006 FISA Congressional Hearings material
  36. ^ Conflicting Bills on Warrantless Surveillance Advance in Senate, Secrecy News, September 14, 2006
  37. ^ House Passes Wilson FISA Bill at the Wayback Machine (archived June 18, 2010), Press Release, September 29, 2006.
  38. ^ Bazan, Elizabeth (February 14, 2008). "P.L. 110-55, the Protect America Act of 2007:Modifications to the Foreign Intelligence Surveillance Act" (PDF).  
  39. ^ Sussmann, Michael (August 6, 2007). "FISA Amended to Allow Acquisition of Cross-Border Communications Without a Court Order". Archived from the original on September 29, 2007. Retrieved August 11, 2007. 
  40. ^ Ryan Singel (September 11, 2007). "Government Promises to Self-Audit Spying to Make Powers Permanent". Wired News. Retrieved September 11, 2007. 
  41. ^ Michael Isikoff and Mark Hosenball (September 12, 2007). "Spy Master Admits Error". Newsweek. Archived from the original on November 5, 2007. Retrieved September 13, 2007. 
  42. ^ Anne Broache (September 12, 2007). "President Bush rallies for immortal spy law changes, telco protection". CNET Retrieved September 20, 2007. 
  43. ^ May 21, 2007
  44. ^ Anthony J. Seebok (January 29, 2008). "Is It Constitutional for the Senate to Retroactively Immunize From Civil Liability the Telecoms That Provided the Government with Information About Customers' Communications?". FindLaw Writ Legal News and Commentary. Retrieved February 7, 2008. 
  45. ^ Steven M. Bellovin, Matt Blaze, Whitfield Diffie, Susan Landau, Peter G. Neumann, and Jennifer Rexford (February 5, 2008). "Risking Communications Security: Potential Hazards of the Protect America Act" (PDF).  
  46. ^ Ellen Nakashima (October 7, 2007). "Democrats to Offer New Surveillance Rules". The Washington Post. Retrieved October 7, 2007. 
  47. ^  
  48. ^ Eric Lichtblau (October 18, 2007). "Senate Deal on Immunity for Phone Companies". The New York Times. Retrieved October 18, 2007. 
  49. ^ Pamela Hess (November 15, 2007). "Congress Takes Up Terrorist Surveillance". Associated Press. Archived from the original on November 16, 2007. Retrieved November 15, 2007. 
  50. ^ Pamela Hess (November 15, 2007). "House OKs Surveillance Oversight Bill". Associated Press. Archived from the original on November 18, 2007. Retrieved November 15, 2007. 
  51. ^ Jonathan Weisman (March 15, 2008). "House Passes a Surveillance Bill Not to Bush's Liking". The Washington Post. Retrieved March 28, 2008. 
  52. ^ Bazan, Elizabeth (February 8, 2008). "The Foreign Intelligence Surveillance Act: Comparison of House-Passed H.R. 3773, S. 2248 as Reported by the Senate Select Committee on Intelligence, and S. 2248 as Reported Out of the Senate Judiciary Committee" (PDF).  
  53. ^ Rep. Dennis Kucinich of Ohio debates secret house meeting Somethings fishy! on YouTube. (2008-11-11). Retrieved on 2013-08-15.
  54. ^ Kane, Paul (2008-06-21). "House Passes Spy Bill; Senate Expected to Follow". Washington Post. 
  55. ^ "Final Vote Results For Roll Call 437, June 20, 2008". 
  56. ^ "Vote Summary On A bill to amend the Foreign Intelligence Surveillance Act of 1978 to establish a procedure for authorizing certain acquisitions of foreign intelligence, and for other purposes.". 2008-07-09. 
  57. ^ "Vote Summary On Dodd Amendment (No. 5064) to Strike Title II". 2008-07-09. 


See also

The 2008 amendment of FISA 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.[54][55] It passed in the Senate 69 to 28 on July 9, 2008[56] after a failed attempt to strike Title II from the bill by Senator Dodd.[57] On July 10, 2008, President Bush signed it into law.

Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008

On March 13, 2008, the House of Representatives held a secret, closed door meeting to debate changes to the FISA bill.[53]

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.[51] The Senate and House bills are compared and contrasted in a June 12, 2008 report from the Congressional Research Service.[52]

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 chairman John Conyers 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.[50]

On November 15, 2007, the Senate Judiciary Committee 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 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 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.[49]

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. At the same time, the Senate Intelligence Committee 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 Sep 11 terrorist attacks.[48]

On October 7, 2007, the Washington Post 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 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 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.[46] 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.[47]

In an article appearing in the January/February 2008 issue of the Institute of Electrical and Electronics Engineers 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.[45]

On October 4, 2007, the bipartisan Liberty and Security Committee of the Constitution Project, co-chaired by David Keene and David D. Cole, issued its "Statement on the Protect America Act".[43] 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.[44]

Speaking at [42]

Also on September 10, DNI Mike McConnell testified before the Senate Committee on Homeland Security and Governmental Affairs 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.[41]

In a September 10, 2007 address at a symposium on modernizing FISA held at 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 should be made permanent. Wainstein proposed that internal audits by the Office of the Director of National Intelligence 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.[40]

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.

Subsequent developments

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.”[39] The Act expired on February 17, 2008.

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.

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.

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.

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

All petitions must be filed under seal.

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.

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.

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.

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.

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.

  • 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.

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:

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.

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.

[38] 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

On July 18, 2006, U.S. Representative Heather Wilson (R-NM) introduced the Electronic Surveillance Modernization Act (H.R. 5825). 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.[37]

All three competing bills were the subject of Judiciary Committee hearings throughout the summer.[35] 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.[36]

On March 16, 2006, Senators Mike DeWine (R-OH), Lindsey Graham (R-SC), Chuck Hagel (R-NE), and Olympia Snowe (R-ME) introduced the Terrorist Surveillance Act of 2006 (S.2455),[30][31] 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 (S. 2453),[32][33] which would amend FISA to grant retroactive amnesty[34] 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 (S. 3001) asserting FISA as the exclusive means to conduct foreign intelligence surveillance.

Terrorist Surveillance Act of 2006


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. [FISA] requires 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."[29]

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.[28] 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."

K. A. Taipale of the World Policy Institute, James Jay Carafano of the Heritage Foundation,[24] and Philip Bobbitt of Columbia Law School,[25] among others,[26] 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.[27]


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 (Foreign Intel. Surv. Ct. of Rev. 2002) the special court stated “[A]ll the other courts to have decided the issue [have] 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.”

In the United States v. Nicholson, the defendant moved to suppress all evidence gathered under a FISA order. 955 F.Supp. 588 (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.

There have been very few cases involving the constitutionality of FISA. In two lower court decisions, the courts found FISA constitutional. In the United States v. Duggan, the defendants were members of the Irish Republican Army. 743 F.2d 59 (2nd 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.


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."

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.

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".

Before FISA


In 2004, FISA was amended to include a "lone wolf" provision. 50 U.S.C. § 1801(b)(1)(C). 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".[23]

Lone wolf amendment

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.[18] 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.

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.[17]

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

Remedies for violations

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.

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 Act created the Foreign Intelligence Surveillance Court (FISC) and enabled it to oversee requests for surveillance warrants by federal police agencies (primarily the F.B.I.) 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.

FISA court

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.

Physical searches

Alternatively, the government may seek a court order permitting the surveillance using the FISA court.[20] 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", 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.[21] Depending on the type of surveillance, approved orders or extensions of orders may be active for 90 days, 120 days, or a year.[22]

With a court order

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".[19]

[18] and civil liabilities.[17] Under the FISA act, anyone who engages in electronic surveillance except as authorized by statute is subject to both criminal penalties[16]

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