The Foreign Intelligence Surveillance Act of 1978 (FISA, , ) is a United States federal law that establishes procedures for the surveillance and collection of foreign intelligence on domestic soil.Foreign Intelligence Surveillance Act (FISA): An Overview (updated April 6, 2021), Congressional Research Service.
FISA was enacted in response to revelations of widespread privacy violations by the federal government under President Richard Nixon. It requires federal law enforcement and intelligence agencies to obtain authorization for gathering "foreign intelligence information" between "foreign powers" and "agents of foreign powers" suspected of espionage or terrorism.50 USC §1801(b) "Agent of a foreign power means— (1) any person other than a United States person, who— (A) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4), irrespective of whether the person is inside the United States; (B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances indicate that such person may engage in such activities, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities; (C) engages in international terrorism or activities in preparation therefore; (D) engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor; or (E) engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor, for or on behalf of a foreign power, or knowingly aids or abets any person in the conduct of such proliferation or activities in preparation therefor, or knowingly conspires with any person to engage in such proliferation or activities in preparation therefor; or (2) any person who— (A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States; (B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States; (C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power; (D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or (E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C). The law established the Foreign Intelligence Surveillance Court (FISC) to oversee requests for surveillance warrants.
Although FISA was initially limited to government use of electronic surveillance, subsequent amendments have broadened the law to regulate other intelligence-gathering methods, including physical searches, pen register and trap and trace (PR/TT) devices, and compelling the production of certain types of business records.
FISA has been repeatedly amended since the September 11 attacks, with several added provisions garnering political and public controversy due to privacy concerns.
History and background The Foreign Intelligence Surveillance Act (FISA) was introduced on May 18, 1977, by Senator Ted Kennedy and was signed into law by President Jimmy Carter on 25 October 1978. The bill was cosponsored by nine senators: Birch Bayh, James O. Eastland, Jake Garn, Walter Huddleston, Daniel Inouye, Charles Mathias, John L. McClellan, Gaylord Nelson, and Strom Thurmond.
The FISA resulted from extensive investigations by Senate Committees into the legality of domestic intelligence activities. These investigations were led separately by Sam Ervin and Frank Church in 1978 as a response to President Richard Nixon's usage of federal resources, including law enforcement agencies, to spy on political and activist groups. The law itself was crafted in large part in closed door meetings between legislators and members of the Justice Department.
The act was created to provide judicial and congressional oversight of the government's covert surveillance activities of foreign entities and individuals in the United States, while maintaining the secrecy needed to protect national security.
Warrantless domestic wiretapping program
FISA came into public prominence in December 2005 following an article in The New York Times that described a program of warrantless domestic wiretapping ordered by the Bush administration and carried out by the National Security Agency since 2002; a subsequent Bloomberg article suggested this may have already begun by June 2000. Attorney General Alberto Gonzales later confirmed the existence of the program, which was codenamed Stellar Wind. via commondreams.org
Without obtaining a FISA warrant, the NSA monitored phone calls, Internet activities, text messages, and other forms of communication involving any party it believed to be outside the U.S., regardless of whether part of the communication took place domestically. The Bush administration initially defended the program as an extension of executive authority; amid public, political, and legal pressure, the program was ended in January 2007 and the government announced it would seek warrants from the Foreign Intelligence Surveillance Court (FISC).
Section 702
Following the controversy over Stellar Wind, Congress later legalized a form of that program in Section 702. Between 2020 and early 2022, Bureau personnel conducted more than 278,000 searches of surveillance databases that did not meet legal standards.
Following the December 2019 DOJ Inspector General report, FBI Director Christopher A. Wray announced corrective actions to FISA policies and procedures. NBC News reported in July 2023 that FBI queries of foreign spy data had fallen 94% following reform implementation. A proposed warrant requirement for such searches failed by a single vote in the House of Representatives.
Provisions The subchapters of FISA provide for:
Electronic surveillance () Physical searches () Pen registers and trap & trace devices for foreign intelligence purposes () Access to certain business records for foreign intelligence purposes () Reporting requirement ()
Electronic surveillance Generally, the statute permits electronic surveillance in two different scenarios.
Without a court order The President may authorize, through the Attorney General, electronic surveillance without a court order for the period of one year, provided that it is only to acquire foreign intelligence information, that it is solely directed at communications or property controlled exclusively by foreign powers,(a) Definition of Foreign power that there is no substantial likelihood that it will acquire the contents of any communication to which a United States person is a party, and that it be conducted only in accordance with defined minimization procedures., Conditions under which the President, through the Attorney General, may authorize electronic surveillance without a court order
The code defines "foreign intelligence information" to mean information necessary to protect the United States against actual or potential grave attack, sabotage or international terrorism.(e) Definition of Foreign intelligence information
"Foreign powers" means a foreign government, any faction of a foreign nation not substantially composed of U.S. persons, and any entity directed or controlled by a foreign government.§§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)).
A "U.S. person" includes citizens, lawfully admitted permanent resident aliens, and corporations incorporated in the United States.
"Minimization procedures" limit the collection of information concerning United States persons by protecting their identities and requiring a court order to retain the communications for longer than 72 hours. The communications can be retained without court order if there is evidence of a crime. Identification of a US person, known as "unmasking", may also be authorized if an agency believes it is necessary in order to understand the intelligence or believes that the person was committing a crime.
The Attorney General is required to make a certification of these conditions under seal to the Foreign Intelligence Surveillance Court,, Requirement of the Attorney General's to file reports under seal on warrantless surveillance to the FISC and report on their compliance to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence., Requirement of the Attorney General's to report on compliance with warrantless surveillance requirements to Congress
Since (a)(1)(A) of this Act specifically limits warrantless surveillance to foreign powers as defined by 50 U.S.C. §1801(a) (1),(2),(3) and omits the definitions contained in 50 U.S.C. §1801(a) (4),(5),(6) the act does not authorize the use of warrantless surveillance on: groups engaged in international terrorism or activities in preparation thereof; foreign-based political organizations, not substantially composed of United States persons; or entities that are directed and controlled by a foreign government or governments.50 U.S.C. §1802 (a)(1)(A) The limitation of warrantless surveillance to foreign powers as defined in 50 U.S.C § 1801 (a) (1),(2), and (3) Under FISA, anyone who engages in electronic surveillance except as authorized by statute is subject to both criminal penalties50 U.S.C. §1809 – Criminal sanctions and civil liabilities.50 U.S.C. §1810 – Civil liability
Under 50 U.S.C. § 1811, the President may also authorize warrantless surveillance at the beginning of a war. Specifically, he may authorize such surveillance "for a period not to exceed fifteen calendar days following a declaration of war by the Congress".50 U.S.C. § 1811 – Authorization during time of war
With a court order
Alternatively, the government may seek a court order permitting the surveillance using the FIS court.(a) Electronic surveillance with a court order This is called the traditional intelligence collection, because it is "the targeted monitoring of a suspected clandestine operative of a foreign power." Approval of a FISA application requires the court find probable cause that the target of the surveillance be a "foreign power" or an "agent of a foreign power" inside the United States and that the places at which surveillance is requested is used or will be used by that foreign power or its agent. In addition, the court must find that the proposed surveillance meet certain "minimization requirements" for information pertaining to U.S. persons.(h) Minimization procedures definition If the foreign power's suspected agent communicates with Americans, the communications of U.S. citizens are incidentally intercepted even though they are not the targets of the surveillance.