Foreign Intelligence Surveillance Act
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The Foreign Intelligence Surveillance Act of 1978 ("FISA" Pub.L. 95-511, 92 Stat. 1783, enacted October 25, 1978, 50 U.S.C. ch.36, S. 1566) is an Act of Congress 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 being engaged in espionage and violating U.S. law on territory under United States control).[1] | Wikisource has original text related to this article: |
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[edit] 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]
[edit] History
The Foreign Intelligence Surveillance Act (FISA) was introduced on May 18, 1977 by Senator Ted Kennedy. The bill was cosponsored by the nine Senators: Birch Bayh, James O. Eastland, Jake Garn, Walter Huddleston, Daniel Inouye, Charles Mathias, John L. McClellan, Gaylord Nelson, and Strom Thurmond.The act was signed into law by President Carter in 1978.
The Foreign Intelligence Surveillance Act 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, which violates the Fourth Amendment to the U.S. Constitution.[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.
[edit] Bush administration warrantless domestic wiretapping program
Main article: NSA warrantless surveillance controversy
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).[edit] 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 US 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 US persons. A "US person" includes citizens, lawfully admitted permanent resident aliens, and corporations incorporated in the US.
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 U.S. 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.”[3][8]
[edit] Provisions
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)
[edit] Electronic surveillance
Generally, the statute permits electronic surveillance in two scenarios.[edit] 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] or their agents; 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]
Since 50 U.S.C. § 1802(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 therefore; foreign-based political organizations, not substantially composed of United States persons; or entities that are directed and controlled by a foreign government or governments.[16] Under the FISA act, anyone who engages in electronic surveillance except as authorized by statute is subject to both criminal penalties[17] and civil liabilities.[18]
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]
[edit] With a court order
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 US persons.[21][edit] 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.
