Foreign Intelligence Surveillance Act

Introduction

The Foreign Intelligence Surveillance Act (FISA) of 1978, codified at 50 USC §§ 1801-1885c, establishes the legal framework for electronic surveillance and physical searches for foreign intelligence purposes. FISA was enacted in response to revelations of warrantless surveillance by the intelligence community during the Vietnam War era. The statute created the Foreign Intelligence Surveillance Court (FISC) to review and approve surveillance applications.

FISA’s Core Provisions

FISA requires the government to obtain a court order before conducting electronic surveillance or physical searches for foreign intelligence purposes within the United States. The government must submit an application to the FISC demonstrating: probable cause that the target is a foreign power or an agent of a foreign power; that the proposed surveillance will be conducted in a manner minimizing the acquisition of US person information; and that the procedures for minimizing dissemination of information are adequate.

The statute defines a foreign power to include foreign governments, international terrorist groups, and other foreign-based political organizations. An agent of a foreign power includes persons who knowingly engage in clandestine intelligence activities, sabotage, or terrorism on behalf of a foreign power.

The Foreign Intelligence Surveillance Court

The FISC is composed of eleven federal district judges designated by the Chief Justice of the United States. The court sits in Washington, D.C., and meets in secret. The government applies for surveillance orders ex parte, and the court reviews applications in closed proceedings.

The FISC’s review is deferential but not meaningless. The court must find probable cause that the target is a foreign power or agent. The government’s applications are almost always approved, though the court has occasionally denied or modified applications.

Section 702

Section 702 of the FISA Amendments Act of 2008 authorizes the targeting of non-US persons reasonably believed to be located outside the United States to acquire foreign intelligence information. Section 702 does not require a warrant based on individual probable cause; instead, the government must obtain annual certifications from the FISC approving the targeting procedures.

Section 702 has been controversial because it authorizes the collection of communications of US persons who communicate with targeted non-US persons. The government must minimize the acquisition, retention, and dissemination of US person information collected under Section 702.

FISA Reform

Congress has amended FISA multiple times to address evolving threats and concerns about privacy and civil liberties. The USA PATRIOT Act of 2001 expanded FISA authority, including the lone wolf provision and access to business records. The FISA Amendments Act of 2008 added Section 702. The USA FREEDOM Act of 2015 ended the bulk collection of telephone metadata and increased transparency.

Conclusion

FISA provides the legal framework for foreign intelligence surveillance in the United States. The statute creates a specialized court to review surveillance applications, establishes procedures for targeting foreign powers and agents, and includes safeguards to protect US person information. Section 702 and ongoing reform efforts reflect the tension between national security and privacy in an era of global electronic surveillance.