Originally Published: 4/19/2006
FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA)
By The Issue Wonk
The Foreign Intelligence Surveillance Act (FISA) of 1978 (50 U.S.C. §§ 1801-1811, 1821-1829, 1841-1846, and 1861-1862) is designed to protect the United States against possible hostile acts, sabotage, terrorism, or clandestine intelligence activities by a “foreign power” or an “agent of a foreign power.” It establishes guidelines for surveillance against foreign intelligence operatives that is different from those used for criminal investigations. FISA was initially limited to electronic eavesdropping and wiretapping. In 1994, it was amended to permit covert searches. In 1998, it was amended again to permit “pen/trap orders”1 and to allow for obtaining some business records. And in 2004 it was amended again to include the “Lone Wolf” provision.
Targets. FISA regulations do not apply to wiretaps targeted at foreign nationals abroad. Its restrictions apply only when the surveillance target is a citizen or permanent resident of the United States or when the surveillance is obtained from a wiretap physically located within the United States. Also, judicial approval may be obtained after the wiretap is in place, as long as it is approved within 72 hours. [§ 1805(f)]
Probable Cause. Under the Fourth Amendment, a search warrant must be obtained on the basis of probable cause to believe that a crime is being or has been committed. This is not the case with foreign espionage, which is different from a criminal act. Under FISA, surveillance is permitted based on probable cause that the target of the surveillance is a foreign power or an agent of a foreign power. However, if the target is a U.S. person, there must be probable cause to believe that the person’s activities may involve espionage or similar conduct. A U.S. person may not be determined to be an agent of a foreign power “solely upon the basis of activities protected by the first amendment to the Constitution of the United States.” [§ 1805(a)(3)(A)]
Definitions: U.S.C. § 1801 defines “foreign powers” as “(1) a foreign government or any component thereof, whether or not recognized by the United States; (2) a faction of a foreign nation or nations, not substantially composed of United States persons; (3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments; (4) a group engaged in international terrorism or activities in preparation therefor; (5) a foreign-based political organization, not substantially composed of United States persons; or (6) an entity that is directed and controlled by a foreign government or governments.” It also defines a “U.S. person” as “a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in § 1101(a)(20) of title 8), an unincorporated association of a substantial number of members which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1),(2), or (3) of this section.”
Minimization Requirement: Although FISA is directed at “foreign powers,” U.S. courts allow for FISA-obtained information to be used in criminal trials if certain procedures are used to “minimize” the collection of the information about U.S. persons. These requirements are meant to prevent using FISA for criminal investigations. For instance, one requirement, known as “information-screening wall,” requires an official not involved in the criminal investigation to review the raw materials gathered through FISA surveillance and only pass on the information that might be relevant. In March, 2002 the Attorney General proposed a new set of minimization procedures but the Foreign Intelligence Surveillance Court rejected them in the first opinion of that court. (See Memorandum Opinion)
Following are pertinent provisions of FISA:
Electronic Surveillance: FISA permits electronic surveillance with and without a court order. § 1802(a) states: “Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that (A) the electronic surveillance is solely directed at (i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers . . . or (ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power . . .” [Emphasis added.] The Attorney General is required to certify to the Foreign Intelligence Surveillance Court that these conditions exist. In other words, if, in the opinion of the Attorney General, the surveillance is on “foreign powers” or “agents of a foreign power” s/he needs no court order.
FISA mandates an order of the FISA court for electronic surveillance on U.S. persons. § 1805(a)(3) states that the court must find probable cause that the target of the surveillance is a foreign power or an agent of a foreign power, except that “no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States.” The same section also states that the court must find probable cause that the place where the surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.
Physical Searches: § 1822 allows for physical searches of “premises, information, material, or property used exclusively by” a foreign power under requirements and procedures similar to those for electronic surveillance. During a time of war, FISA states, in § 1829, “Notwithstanding any other provision of law, the President, through the Attorney General, may authorize physical searches without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed 15 calendar days following a declaration of war by the Congress.” [Emphasis added.]
The “Lone Wolf” Amendment: In 2004 FISA was amended to include a “lone wolf” provision. § 1801(b)(2)(C) defines an “agent of a foreign power” as any person “who knowlingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power.” Therefore, surveillance and physical search orders can be issued without having to find a connection between a “lone wolf” and a foreign government or terrorist group.
Foreign Intelligence Surveillance Court
The Act also created the Foreign Intelligence Surveillance Court (FISC). It oversees requests for surveillance warrants. The court is physically located within the Department of Justice, the Attorney General’s office. It’s staffed by 11 judges appointed by the Chief Justice of the United States who serve for 7-year terms.2 The court hears evidence presented solely by the Department of Justice attorneys. Denials can be appealed to the Foreign Intelligence Surveillance Court of Review.3 The Court of Review is a 3-judge panel and, since its creation, has only gone into session once, in 2002.
Applications to conduct surveillance must be accompanied by a statement containing, among other things, the reasons for suspecting the target of surveillance, certification from a high-ranking executive branch official that the information being sought cannot be obtained by normal techniques, and whether physical entry into premises is necessary. (See § 1805.) If the target is a U.S. Person, the FISC judge must find probable cause that one of the following four (4) conditions has been met:
1. The target knowingly engages in clandestine intelligence activities on behalf of a foreign power which may involve a criminal law violation.
2. The target knowingly engages in other secret intelligence activities on behalf of a foreign power and his activities involve, or are about to involve, criminal acts.
3. The target knowingly engages in sabotage or international terrorism or is preparing for such activities.
4. The target knowingly aids or abets another who acts in one of the above ways.
The law allows for emergency situations. § 1805(f) sets forth the circumstances under which an “emergency order” can be claimed. The law also states that, in an emergency situation, the Attorney General, “or his designee,” may order surveillance for 72 hours. An application to an FISC judge must be made “as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.”
FISA Amendments in the USA Patriot Act
The USA Patriot Act, passed a month after the 9/11 attacks, contained several provisions enhancing the government’s surveillance authority under FISA. The Patriot Act expanded the use of FISA from gathering foreign intelligence information as its “primary purpose” to a “significant” purpose, but “significant” is not defined. The Patriot Act also expanded FISA to allow “roving” wiretaps, which allows interception of any communication made to or by an intelligence target without specifying the particular telephone line, computer, or other facility and requires communications carriers to provide assistance with the surveillance. Also, the Patriot Act removed the requirement that the target be “an agent of a foreign power” before obtaining a pen register/trap and trace order. However, the Patriot Act prohibits pen register surveillance under any circumstances against a U.S. citizen where the investigation is conducted “solely on the basis of activities protected by the First Amendment.”
1 A pen register collects the outgoing phone numbers placed from a specific telephone line. A trap and trace device captures the incoming numbers placed to a specific telephone line.
2 The 2006 membership of the FISC is: Colleen Kollar-Kotelly, Presiding Judge, Dee Benson, Robert C. Broomfield, James G. Carr, Michael J. Davis, Nathaniel M. Gorton, Claude M. Hilton, Malcolm Howard, George P. Kazen, and Frederick J. Scullin, Jr. James Robertson resigned 12/19/05 and was replaced by John D. Bates in February, 2006. For information on the federal districts in which these judges serve, their appointment and expiration dates, please see the Federation of American Scientists.
3 The 2006 membership of the FISC of Review is: Ralph B. Guy, Presiding Judge, Edward Leavy, and Ralph K. Winter, Jr. For information on the federal districts in which these judges serve, their appointment and expiration dates, please see the Federation of American Scientists.
© The Issue Wonk, 2006