Readers will likely agree that foreign intelligence surveillance law involves complex issues surrounding national security, civil liberties, and privacy.
This article provides a straightforward explanation of key aspects of the Foreign Intelligence Surveillance Act (FISA), including its purpose, court operations, section 702, amendments, court challenges, and more.
You will gain an informed understanding of FISA's background, provisions, controversies, and role in balancing security and constitutional rights in America's intelligence gathering framework.
Introduction to the Foreign Intelligence Surveillance Act
The Foreign Intelligence Surveillance Act (FISA) was passed in 1978 to establish procedures for physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" within the United States.
The purpose of FISA is to regulate government surveillance activities while also protecting the civil liberties and privacy rights of US citizens and permanent residents. Key provisions of the law include:
- Establishing the Foreign Intelligence Surveillance Court (FISC) to oversee requests for surveillance warrants against suspected foreign intelligence agents inside the US
- Outlining procedures for obtaining warrants related to electronic surveillance of foreign powers and agents of foreign powers
- Providing Congressional oversight of intelligence operations
- Requiring minimization procedures to limit the collection and retention of information about US persons
FISA was enacted in response to revelations in the 1970s that government agencies had been improperly spying on US citizens, activists, and domestic groups as part of domestic counterintelligence programs. The law aimed to strike a balance between protecting civil liberties and enabling intelligence gathering critical to national security.
Over the years, FISA has been amended several times - most significantly through the FISA Amendments Act of 2008 which provided broader authority for warrantless surveillance and data collection related to foreign targets. The scope and oversight of FISA programs remains controversial given privacy implications.
What is the general purpose of the Foreign Intelligence Surveillance Act?
FISA establishes procedures for electronic surveillance, use of pen registers and trap and trace devices, physical searches, and access to business records for the purpose of gathering foreign intelligence.
The main purposes of FISA are to:
- Set up a statutory procedure for authorizing certain types of surveillance and searches aimed at obtaining foreign intelligence
- Establish the Foreign Intelligence Surveillance Court (FISC) to oversee requests for surveillance warrants against suspected foreign intelligence agents
- Balance national security interests with protection of civil liberties through privacy protections and accountability measures
In summary, FISA provides a legal framework for intelligence agencies like the NSA to conduct surveillance on foreign powers and agents while also instituting safeguards for the constitutional rights of U.S. citizens.
What is the Foreign Intelligence Surveillance Court do?
The Foreign Intelligence Surveillance Court (FISC) was established by the Foreign Intelligence Surveillance Act (FISA) in 1978 to oversee requests for surveillance warrants against foreign spies inside the United States by federal law enforcement and intelligence agencies.
The FISC is made up of eleven federal district judges who are appointed by the Chief Justice of the Supreme Court. They review applications submitted by the FBI, NSA, and other agencies to conduct electronic surveillance, physical searches, or other investigative actions related to foreign intelligence gathering inside the U.S.
The FISC meets in secret and only hears the government's side to determine if the legal standards set by FISA have been met before issuing surveillance warrants. The records, proceedings, and decisions of the FISC are classified "top secret" and not publicly disclosed.
Over the years, the FISC has been criticized by civil liberties groups for rubber stamping nearly all warrant applications it reviews behind closed doors without an opposing viewpoint. However, the FISC defenders argue that the nature of its duties requires meeting in secret and that judges push back on occasion before issuing warrants.
What is the Foreign Intelligence Surveillance Act Watergate?
The Foreign Intelligence Surveillance Act (FISA) was enacted in 1978 in response to revelations about illegal surveillance activities carried out by intelligence agencies in the 1960s and 1970s, including during the Watergate scandal.
FISA established procedures and a special court, the Foreign Intelligence Surveillance Court (FISC), to oversee requests for surveillance warrants against foreign spies inside the United States. The law requires intelligence agencies to demonstrate probable cause that the target is an agent of a foreign power to obtain a FISA warrant from the FISC.
So while the Watergate scandal was not directly related to FISA itself, the subsequent Church Committee investigations into intelligence abuses helped reveal surveillance overreaches by agencies like the NSA and FBI. This environment of distrust in government surveillance programs was the backdrop that led Congress to pass new reforms like FISA in 1978 to increase oversight and protect civil liberties.
At its core, FISA was designed to balance national security interests while also preserving privacy rights and prohibiting unchecked domestic surveillance powers. The law has been amended several times over the years, most notably in 2008, as technology has continued advancing. But those original aims to regulate foreign intelligence gathering and safeguard U.S. persons' information remain central to FISA today.
What is the FISA 702 law?
The FISA Amendments Act of 2008 introduced Section 702 to the Foreign Intelligence Surveillance Act (FISA). This provision allows intelligence agencies to conduct warrantless surveillance on communications of foreign persons reasonably believed to be located outside the United States.
The law was enacted to expand the government's ability to monitor suspected terrorists abroad while protecting the privacy rights of U.S. citizens and lawful permanent residents. Section 702 requires the government to develop targeting and minimization procedures subject to approval by the Foreign Intelligence Surveillance Court (FISC).
Key aspects of Section 702 include:
- Allows surveillance without individualized court orders if targeting procedures are followed
- Requires targeting of persons reasonably believed to be located outside the U.S.
- Prohibits intentionally targeting any U.S. citizen or lawful permanent resident
- Requires minimization procedures to limit retention and dissemination of information on U.S. persons
- Requires the government to notify criminal defendants if evidence against them was derived from Section 702 surveillance
The law remains controversial regarding its impact on Americans' privacy rights. It attempts to balance national security interests with civil liberties concerns. The FISC and Congress conduct oversight of Section 702 activities.
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FISA Creation and Historical Significance
FISA's creation arose from revelations in the 1970s that federal agencies had improperly surveilled civil rights leaders and anti-war protestors. These abuses highlighted the need for oversight and accountability when conducting surveillance aimed at "foreign intelligence."
After extensive Congressional hearings, FISA was enacted in 1978 to regulate electronic surveillance of foreign powers and agents. It established a legal framework subjecting surveillance activities to judicial oversight.
The Genesis of FISA in Response to Espionage and Terrorism
In the 1960s and 1970s, federal agencies conducted warrantless wiretaps and surveillance against domestic groups under questionable legal grounds. Revelations of these abuses in the Church Committee reports led to reforms.
With the rise of international terrorism in the 1970s, policymakers recognized the need for a specialized legal framework tailored to gathering foreign intelligence while protecting civil liberties. FISA filled this void.
Legislative Milestones Leading to FISA's Enactment
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1975: The Church Committee uncovers surveillance abuses, galvanizing support for FISA.
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1976: Attorney General Edward Levi issues domestic security guidelines on intelligence gathering.
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1978: FISA is signed into law after extensive Congressional debate, with later amendments expanding its scope.
FISA's Role in the Evolution of U.S. Intelligence Gathering
Over 40+ years, FISA has been amended to keep pace with technological advancements and new threats. It provides authorization procedures subject to judicial review.
Critics argue FISA's broadened scope after 9/11 tilts too far toward security interests over privacy. Supporters counter that oversight mechanisms curb abuses while allowing intelligence agencies to protect national security.
Balancing National Security and Civil Liberties
An enduring challenge is balancing surveillance powers with Constitutional protections and civil liberties. FISA attempts to strike this balance but has prompted ongoing legal and policy debates.
Additional oversight, transparency, and accountability measures have been implemented to guard against overreach while equipping agencies to combat terrorism and espionage threats.
Foreign Intelligence Surveillance Court: Structure and Function
Establishment and Jurisdiction of the Foreign Intelligence Surveillance Court
The Foreign Intelligence Surveillance Court (FISC) was established under the Foreign Intelligence Surveillance Act (FISA) of 1978. The FISC has jurisdiction to oversee requests for surveillance warrants against suspected foreign spies inside the United States by federal law enforcement and intelligence agencies.
The court's mandate is to review applications submitted by the FBI, NSA, and other agencies to conduct electronic surveillance on individuals suspected of being "agents of a foreign power." This could include foreign government officials, suspected terrorists, or spies operating in the U.S. The FISC determines if the applications meet the legal requirements under FISA.
The Judicial Process for Surveillance Approval
The judicial process for obtaining a FISA surveillance warrant involves multiple steps:
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Federal law enforcement or intelligence agencies submit an application to the FISC detailing the target, type of surveillance requested, duration, and evidence to justify the warrant.
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A FISC judge reviews the application to determine if there is probable cause to believe the target is an "agent of a foreign power" who may be involved in espionage or terrorism against the U.S.
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The judge may request additional information or question the applicant. If the legal standards are met, the FISC approves the warrant to conduct electronic surveillance for a certain period, up to 120 days.
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Agencies implement the surveillance and report back to the FISC on the information collected. Warrants can be renewed if the court finds continued surveillance is justified.
Transparency and Secrecy in FISC Operations
As a secret court dealing with classified intelligence matters, the FISC has faced criticism over its lack of transparency. However, some accountability measures have been implemented:
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The USA Freedom Act requires the Director of National Intelligence to publish annual transparency reports on the number of FISA warrants requested and approved.
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Redacted FISC opinions may be declassified and released publicly in some cases. This allows scrutiny of the legal reasoning behind surveillance approvals.
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Congress and the Privacy and Civil Liberties Oversight Board conduct oversight of FISC activities.
FISC's Oversight of Intelligence Agencies
The FISC oversees federal agencies' surveillance activities by:
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Requiring periodic status reports on active FISA warrants.
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Appointing amicus curiae to provide neutral expert input on novel legal issues.
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Ruling on agencies' requests to modify existing warrants.
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Investigating and sanctioning agencies for violations of FISA rules or misleading the court.
In this oversight capacity, the FISC ensures agencies conduct foreign intelligence surveillance lawfully under guidelines issued by the Attorney General and Director of National Intelligence.
Understanding Section 702 of FISA
Section 702 of the Foreign Intelligence Surveillance Act (FISA) is a controversial provision that allows the government to conduct warrantless surveillance on foreign targets located outside the United States for the purpose of collecting foreign intelligence.
The Scope and Impact of Section 702 on Surveillance
Section 702 significantly expands the government's legal authority to conduct surveillance without obtaining individualized warrants. Under this provision, the government can compel U.S. tech companies to provide communications and data related to foreign targets. This data can include emails, phone calls, social media posts, and more.
Civil liberties advocates argue that Section 702 results in the incidental collection of a significant amount of information on U.S. citizens who communicate with foreign targets. The exact scope of this incidental collection is unknown due to the classified nature of these programs.
Privacy Concerns and Civil Liberties under Section 702
Section 702 raises serious privacy issues, especially related to the incidental collection of U.S. citizens' communications. The government is not required to get a warrant to access this information.
There are some procedures in place to protect civil liberties, such as prohibiting the intentional targeting of U.S. citizens and requirements to minimize and mask information on U.S. citizens.
However, these protections have been criticized as inadequate. The unintentional collection of U.S. citizens' data still occurs on a large scale without requiring any probable cause.
Section 702 and International Intelligence Sharing
Information collected under Section 702 is often shared with foreign governments, expanding its reach and impact. This international intelligence sharing raises additional civil liberties concerns.
For example, if the U.S. government shares data on U.S. citizens with foreign governments, those governments may not be subject to the same restrictions on how that data can be used and disseminated.
The Debate Over Warrantless Surveillance and Section 702
Section 702 has been the subject of extensive legal debate and challenges. Critics argue that warrantless surveillance on this scale violates Fourth Amendment protections against unreasonable search and seizure.
However, in a 5-4 decision in Clapper v. Amnesty International USA (2013), the Supreme Court rejected a challenge to the law, finding that the plaintiffs could not prove they had been harmed by the surveillance and thus lacked standing to sue. The debate continues over the proper balance between privacy rights and national security.
In summary, Section 702 grants extensive surveillance authority to the government but raises serious civil liberties concerns related to privacy, incidental data collection, international intelligence sharing, and warrantless surveillance. The scope of Section 702 continues to be controversial and legally contested.
FISA Amendments and Legislative Changes
The FISA Amendments Act of 2008: Expanding Surveillance Powers
The FISA Amendments Act (FAA) of 2008 made several notable changes to the original FISA legislation. Most significantly, it provided retroactive immunity to telecommunications companies that had participated in the NSA's warrantless wiretapping program under President Bush. It also expanded the government's surveillance capabilities by:
- Allowing warrantless wiretapping of foreigners abroad
- Legalizing broader data gathering from U.S. cables, switches, and routers
- Extending the duration of surveillance warrants on non-U.S. persons from 90 days to 1 year
Critics argued these changes weakened civil liberty protections. However, supporters contended they were necessary to modernize FISA for the digital age and improve intelligence gathering on terrorism suspects.
Post-9/11 Legislative Developments: USA PATRIOT Act and Beyond
In the aftermath of 9/11, Congress passed several laws aimed at strengthening the government's counterterrorism powers. Key among them was the USA PATRIOT Act in 2001, which expanded law enforcement's surveillance and investigative abilities. It lowered the legal barriers for obtaining intelligence warrants and allowed increased information sharing between intelligence agencies.
The Protect America Act in 2007 went a step further by permitting warrantless wiretapping of communications between U.S. residents and those abroad if the target was reasonably believed to be overseas. This temporary measure was replaced by the FISA Amendments Act the following year.
Recent Legislative Reforms: USA Freedom Act and Protect America Act
More recently, Congress has attempted to restrain some government surveillance powers under FISA. The 2015 USA Freedom Act ended the NSA's bulk collection of U.S. phone metadata, requiring more specific warrants to access records. It also increased transparency around FISA court orders and strengthened public reporting requirements.
However, some critics felt the USA Freedom Act did not go far enough. Digital rights groups continue to advocate for additional privacy safeguards and meaningful oversight of how surveillance authorities are used. The debate over balancing privacy and security under FISA continues in Congress.
The Role of Congress in Shaping FISA Policy
As the legislative branch, Congress has played a central role in the evolution of FISA since its inception. By passing major amendments at different historical junctures, Congress has both expanded and contracted surveillance powers in response to changing threats and public concerns. Ongoing congressional oversight and reform efforts ensure FISA remains a politically contested domain, subject to revision based on the prevailing winds in Washington.
FISA in the Courts: Key Legal Challenges and Decisions
FISA's constitutionality and scope have been frequently challenged in court over the years. Key cases have shaped how FISA operates and the protections afforded to those targeted for surveillance.
Clapper v. Amnesty International USA: Standing and Surveillance
This 2013 Supreme Court case examined whether various human rights organizations had legal standing to challenge the FISA Amendments Act (FAA). The Court ruled 5-4 that the organizations lacked standing because they could not demonstrate their communications would be intercepted under FAA. This decision made it more difficult to directly challenge government surveillance programs.
Federal Bureau of Investigation v. Fazaga: State Secrets and Surveillance
In this 2019 case, several Muslims challenged unlawful FBI surveillance under FISA. While partially dismissed on state secrets grounds, the Ninth Circuit allowed much of the case to proceed, ruling unlawful surveillance could violate First Amendment rights. This may make it easier to challenge unconstitutional FISA surveillance despite the state secrets doctrine.
Impact of Judicial Precedent on FISA's Future
Past and future court decisions will likely shape FISA's scope and implementation. Rulings on issues like standing, state secrets claims, and Fourth Amendment considerations could strengthen or erode constraints on foreign intelligence gathering. Continued legal challenges will test the proper balancing of national security interests and civil liberties.
The Fourth Amendment and FISA: Balancing Security and Privacy
Critics argue FISA allows unconstitutional warrantless searches. But courts have largely upheld FISA by finding foreign intelligence gathering necessitates different Fourth Amendment treatment than domestic criminal investigations. Still, privacy advocates caution FISA's lower legal standards threaten civil liberties, necessitating oversight to prevent abuse.
Conclusion and Key Takeaways
The Foreign Intelligence Surveillance Act (FISA) was enacted in 1978 to regulate government surveillance conducted for foreign intelligence purposes in the United States. FISA established the Foreign Intelligence Surveillance Court (FISC) to oversee requests for surveillance warrants against foreign spies and terrorists.
Key takeaways regarding FISA include:
- FISA authorizes electronic surveillance, physical searches, pen registers, and trap and trace devices to gather foreign intelligence.
- Applications for FISA warrants must establish probable cause that the target is a foreign power or an agent of a foreign power.
- FISA has been amended several times, most significantly in 2008, to expand government surveillance authorities and add oversight mechanisms.
- Section 702 of FISA, added in 2008, enables surveillance of non-U.S. persons reasonably believed to be overseas without individualized warrants.
- There are ongoing policy debates around balancing privacy rights with national security under FISA. Civil liberties groups have challenged aspects of FISA in court with mixed results.
In summary, FISA attempts to strike a balance between intelligence gathering needs and protection of civil liberties related to privacy. As technology and threats evolve, FISA will likely continue being updated, requiring oversight to ensure reasonableness of surveillance activities.
