#8 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" suspected of espionage or terrorism).[1] The Act created the Foreign Intelligence Surveillance Court (FISC) to oversee requests for surveillance warrants by federal law enforcement and intelligence agencies. It has been repeatedly amended since the September 11 attacks.
Generally, the statute permits electronic surveillance in two different scenarios.
Electronic surveillance
Without a court order[edit]
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,[5] that it is solely directed at communications or property controlled exclusively by foreign powers,[6] 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.[7]
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.[5]
"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.[8] The definition also includes groups engaged in international terrorism and foreign political organizations.[9] The sections of FISA authorizing electronic surveillance and physical searches without a court order specifically exclude their application to groups engaged in international terrorism.[10]
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.[11]
The Attorney General is required to make a certification of these conditions under seal to the Foreign Intelligence Surveillance Court,[12] and report on their compliance to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence.[13]
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 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.[14] Under the FISA act, anyone who engages in electronic surveillance except as authorized by statute is subject to both criminal penalties[15] and civil liabilities.[16]
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".[17]
With a court order[edit]
Alternatively, the government may seek a court order permitting the surveillance using the FISA court.[18] 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.[2][19] In addition, the court must find that the proposed surveillance meet certain "minimization requirements" for information pertaining to U.S. persons.[20] Depending on the type of surveillance, approved orders or extensions of orders may be active for 90 days, 120 days, or a year.[21]
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