Foreign Intelligence Surveillance Act
The Foreign Intelligence Surveillance Act (FISA) was passed by the United States Congress in 1978 following an intensive investigation of the activities of U.S. intelligence and law enforcement agencies by the Church Committee.
The Church Committee (chaired by Sen. Frank Church) uncovered evidence of illegal wiretaps and illegal entry by the Federal Bureau of Investigation (FBI) as part of FBI efforts during the 1960s and early 1970s to conduct domestic surveillance on Vietnam War protesters and civil rights advocates.
FISA was also inspired by a ruling by the United States Supreme Court in 1972 ( United States v. U.S. District Court ), 407 U.S. 297, where the Supreme Court stated: "Given these potential distinctions between [Wiretap statute] criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes [under the Wiretap statute]. Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens."
FISA established the United States Foreign Intelligence Surveillance Court and authorized the Court to conduct judicial oversight in matters of electronic surveillance related to intelligence and counterintelligence operation. The Court was composed of U.S. federal district court judges, appointed by the Chief Justice, who rotate membership on the court.
Because of the secret nature of the Court, and in order not to violate the Fourth Amendment of the Constitution (specifying the need for probable cause) warrants for surveillance were to be restricted to the gathering of information not intended to be used in criminal prosecution.
The Court reviews Justice Department applications for electronic surveillance. The Court meets two days each month and the proceedings are non-adversarial. Akin to grand jury procedures, the Court only considers arguments for surveillance brought by the Department of Justice Office of Intelligence Policy and Review.
FISA also broadly interpreted associations with "foreign power" so that individuals associated with foreign organizations designated as terrorist organizations by either the Court or Department of State are not entitled to the same Constitutional protections as individuals accuse of other crimes. FISA permits domestic surveillance if there is a judicial finding of probable cause that the individual or organization to be scrutinized acts for a foreign power. The acts constituting probable cause do not need to be criminal; they may, for example, fall into the realm civil economic activities. If the surveillance target is a U.S. citizen FISA requires that, in order to grant permission for surveillance based upon FISA, there must exist a probable cause to argue that the target's acts involve espionage or other criminal conduct. FISA places a heavy reliance on "acts" so that U.S. citizens cannot be designated as agents of a foreign power "solely upon the basis of activities protected by the first amendment to the Constitution of the United States" (i.e. free speech rights).
Although initially limited to setting conditions for electronic surveillance, during the 1990s Congress expanded FISA to include provisions allowing physical searches.
It is estimated that FISA conditions applied to approximately 750 cases a year prior to the September 11, 2001, terrorist attacks on the U.S.
The Patriot Act, passed following the terrorist attacks on the United States on September 11, 2001, extended the government's surveillance authority under FISA. New powers included roving wiretap authority (the surveillance of communications related to an individual or organization without regard to particular telephone line, computer station, or other mode of communication to be monitored. Other extensions included a more liberalized allowed use of pen register, trap and trace devices (removing the need to assert that the surveillance target is "an agent of a foreign power"). The lower Foreign Intelligence Surveillance Court specifically rejected Justice Department attempts at "information screening" and "minimization" procedures are intended to allow the use of material gathered under Foreign Intelligence Surveillance Court authorization to criminal proceedings.
█ FURTHER READING:
Electronic Privacy Information Center. Foreign Intelligence Surveillance Act (FISA) November 22, 2002. < http://www.epic.org/privacy/terrorism/fisa/Overview > (April 15, 2003).