EPIC logo

Foreign Intelligence Surveillance Act (FISA)

Top News | Overview of FISA | USA-PATRIOT Act Amendments | Government Appeal | 2007 Protect America Act Amendments | Previous News | Resources

Top News

FISA Warrantless Surveillance Reauthorization

The Protect America Act of 2007 (text) made several significant changes to the structure of FISA surveillance. The Act became law on August 5th, 2007, and will expire -- with some exceptions -- six months from that date. Lawmakers will during this period be discussing the reauthorization of these changes or further changes to these surveillance powers. The Protect America Act altered the definition of electronic surveillance; created additional procedures for authorization of intelligence gathering on a program-wide basis; and set up a procedure for the courts to review those programs. These changes are set to expire six months after the Act going into effect, with some exceptions. Other proposals, rejected in favor of the final bill, include S. 2011, and H.R. 3356.

Protect America Act Changes

FISA's new section 105A declares that "nothing in the definition of electronic surveillance . . . shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States." Since the FISA court procedures govern the use of electronic surveillance, this change in definition removes such surveillance from the review of the FISA court. There may be "surveillance" that is "electronic," but if it does not fit into the FISA law's definition of "electronic surveillance" then the FISA court does not control it. This provision permits the warrantless surveillance of Americans when the surveillance is "directed at" someone believed to be outside the United States -- whether that person outside the United States is an American or not.

Section 105B creates a set of procedures for the administration to use when acquiring information that is not "electronic surveillance." The government must certify that the program has reasonable procedures in place for determining that the acquisition of information "concerns" persons reasonably believed to be outside of the United States.The government must further certify that the acquisition is not "electronic surveillance." Certifications are also required that minimization procedures are followed and that "a significant purpose" of the acquisition is to obtain foreign intelligence information. The benefit the administration gains from following this procedure is that holders of information, such as telecommunicatiosn companies, are forced to comply. The holders of information are also immunized from lawsuits for having provided this information, notwithstanding any privacy laws that would otherwise hold the holders liable for releasing the information. These certifications are valid for up to a year.

Review of the procedures in 105B is provided by section 105C. The FISA court can review the administration's determination to see if it is "clearly erroneous." If it overturns the program, then the government can appeal to the FISA "Court of Review" and on to the Supreme Court. Even if overturned, the program can continue while these reviews and appeals are pending. The changes to the law are set to expire six months after enactment. However, any programs in place at the time of the expiration can continue their full course of up to a year.

News Stories on Protect America Act Changes:

Resources on Protect America Act Changes and Debate:

 

 

Overview of FISA

For ordinary criminal investigations, communications interception is viewed as a grave intrusion on the rights of privacy and speech. In United States v. U.S. District Court, 407 U.S. 297 (1972), the Supreme Court stated:

"Given these potential distinctions between Title III 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 in Title III. 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."

In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA), which establishes a separate legal regime for "foreign intelligence" surveillance. Title III (the "Wiretap Statute) outlines the strict guidelines regulating ordinary law enforcement surveillance, while FISA regulates the government's collection of "foreign intelligence" information in furtherance of U.S. counterintelligence. FISA was initially limited to electronic eavesdropping and wiretapping. In 1994 it was amended to permit covert physical entries in connection with "security" investigations, and in1998, it was amended to permit pen/trap orders. FISA can also be used to obtain some business records.

Under the Fourth Amendment, a search warrant must be based on probable cause to believe that a crime has been or is being committed. This is not the general rule under FISA: surveillance under FISA is permitted based on a finding of probable cause that the surveillance target is a foreign power or an agent of a foreign power, irrespective of whether the target is suspected of engaging in criminal activity. However, if the target is a "U.S. person," there must be probable cause to believe that the U.S. person's activities may involve espionage or other similar conduct in violation of the criminal statutes of the United States. Nor may a U.S. person be determined to be an agent of a foreign power "solely upon the basis of activities protected by the first amendment to the Constitution of the United States."

Minimization Requirement

Although FISA surveillances must have an intelligence purpose (see below), courts allow FISA-obtained information to be used in criminal trials. However, FISA's "minimization" requirement mandates that procedures be implemented to minimize the collection, retention, and dissemination of information about United States persons. Minimization procedures are designed to prevent the broad power of "foreign intelligence gathering" from being used for routine criminal investigations. In a number of instances, however, there are overlaps between foreign intelligence gathering and criminal investigations. One common minimization procedure is what is known as an "information-screening wall." These "walls" require an official not involved in the criminal investigation to review the raw materials gathered by FISA surveillance and only pass on information that might be relevant evidence. The purpose is to ensure that criminal investigators do not use FISA authority for criminal investigations.

In March of 2002, the Attorney General proposed a new regime of minimization procedures. The Foreign Intelligence Surveillance Court rejected these procedures in May, in the first published opinion of that court (described in detail below).

Foreign Intelligence Information

Foreign Intelligence Information (FII) is information that relates to U.S. ability to protect against possible hostile acts of a foreign power or an agent of a foreign power, sabotage or terrorism by a foreign power or agent, and clandestine intelligence activities by a foreign power or agent. FII includes information with respect to a foreign power or foreign territory that relates to the national defense, national security, or conduct of foreign affairs of the United States.

If the intended surveillance target is a U.S. person, the information must instead be "necessary to" protect against hostile acts, sabotage, or terrorism, or U.S. national defense, national security, or foreign affairs.

The Foreign Intelligence Surveillance Court

FISA established a special court--the Foreign Intelligence Surveillance Court (FISC)-- composed of seven federal district court judges appointed by the Chief Justice for staggered terms and from different circuits. Individual judges of the FISC review the Attorney General's applications for authorization of electronic surveillance aimed at obtaining foreign intelligence information. The FISC meets two days monthly.

The proceedings are not adversarial: they are based entirely on the DOJ's presentations through its Office of Intelligence Policy and Review.

Under FISA, the Justice Department reviews applications for counterintelligence warrants by agencies before submitting them to the FISC. The Attorney General must personally approve each final FISA application.

The application must contain, among other things:

For U.S. persons, the FISC judge must find probable cause that one of four conditions has been met:

(1) the target knowingly engages in clandestine intelligence activities on behalf of a foreign power which "may involve" a criminal law violation;

(2) the target knowingly engages in other secret intelligence activities on behalf of a foreign power under the direction of an intelligence network and his activities involve or are about to involve criminal violations;

(3) the target knowingly engages in sabotage or international terrorism or is preparing for such activities; or

(4) the target knowingly aids or abets another who acts in one of the above ways.

An order of the FISC may approve electronic surveillance of an agent of a foreign power for ninety days and of a foreign power for a year. Extensions may be granted on the same terms.

The records and files of the cases are sealed and may not be revealed even to persons whose prosecutions are based on evidence obtained under FISA warrants (except to a limited degree set by district judges' rulings on motions to suppress). There is no provision for the return of executed warrants to the FISC, for certification that the surveillance was conducted according to the warrant and its "minimization" requirements, or for inventory of items taken pursuant to a FISA warrant.

The "Court of Review"

FISA provides for government appeals of FISC decisions to be made to the Foreign Intelligence Surveillance Court of Review. As of June, 2002, the Court of Review had never met, nor had an appeal ever been lodged. The court convened for the first time on September 9, 2002, to hear a unilateral appeal from the Department of Justice appealing a May 2002 FISC ruling (described in detail below).

The only public mandates governing the Court of Review, which are contained within FISA, direct that the information submitted to the court of review be done under the same seal of secrecy as that submitted to the FISC. 

FISA Amendments in the USA-PATRIOT Act

The USA-PATRIOT Act, passed a month after September 11 to provide law enforcement with the tools necessary to combat the war against terrorism, contained several provisions enhancing the government's surveillance authority under FISA. See EPIC's USA-PATRIOT Act Page.

Lower Surveillance Standard

As originally passed, any FISA investigation must have had the collection of Foreign Intelligence Information as its sole or "primary purpose." The USA-PATRIOT Act expanded the application of FISA to those situations where foreign intelligence gathering is merely "a significant" purpose of the investigation. "Significant" is not defined, which vagueness will lead to inconsistent determinations and potential overuse of the FISA standards. The more lenient standards that the government must meet under FISA (as opposed to the stringent requirements of Title III) are justified by the fact that FISA's provisions facilitate the collection of foreign intelligence information, not criminal evidence. This traditional justification is eliminated where the lax FISA provisions are applicable to the interception of information relating to a domestic criminal investigation. The change is a serious alteration to the delicate constitutional balance reflected in the prior legal regime governing electronic surveillance.

Multi-Point ("Roving Wiretap") Authority

The USA-PATRIOT Act further expanded FISA to permit "roving wiretap" authority, which allows the interception of any communications made to or by an intelligence target without specifying the particular telephone line, computer or other facility to be monitored. Prior law required third parties (such as common carriers and others) "specified in court-ordered surveillance" to provide assistance necessary to accomplish the surveillance--under the new law, that obligation has been extended to unnamed and unspecified third parties.

Such "generic" orders could have a significant impact on the privacy rights of large numbers of innocent users, particularly those who access the Internet through public facilities such as libraries, university computer labs and cybercafes. Upon the suspicion that an intelligence target might use such a facility, the FBI can now monitor all communications transmitted at the facility. The problem is exacerbated by the fact that the recipient of the assistance order (for instance, a library) would be prohibited from disclosing the fact that monitoring is occurring.

The "generic" roving wiretap orders raise significant constitutional issues, as they do not comport with the Fourth Amendment's requirement that any search warrant "particularly describe the place to be searched." That deficiency becomes even more significant when where the private communications of law-abiding American citizens might be intercepted incidentally.

Liberalized Use of Pen Register/Trap and Trace Devices

Finally, the USA-PATRIOT Act removed the pre-existing statutory requirement that the government prove the surveillance target is "an agent of a foreign power" before obtaining a pen register/trap and trace order under the FISA. (A pen register collects the outgoing phone numbers placed from a specific telephone line, a trap and trace device captures the incoming numbers placed to a specific phone line. For example, a caller-id box is a trap and trace device.) The government can now obtain a pen register/trap and trace device "for any investigation to gather foreign intelligence information," without a showing that the device has, is or will be used by a foreign agent or by an individual engaged in international terrorism or clandestine intelligence activities. This amendment significantly eviscerates the constitutional rationale for the relatively lax requirements that apply to foreign intelligence surveillance. That laxity is premised on the assumption that Congress and the courts should not unduly restrain the Executive Branch, in pursuit of its national security responsibilities to monitor the activities of foreign powers and their agents. The removal of the "foreign power" predicate for pen register/trap and trace surveillance upsets that delicate balance.

However, USA-PATRIOT Act includes a provision prohibiting use of FISA pen register surveillance under any circumstances against a United States citizen where the investigation is conducted "solely on the basis of activities protected by the First Amendment." This exemption limits to some extent the potential overreach of this expanded authority.

Government Appeal

In March 2002, the Attorney General submitted a memorandum to the FISC, requesting approval of newly created information sharing (minimization procedures) and other proposals, to be implemented upon approval at the Department of Justice. The Attorney General's proposed minimization procedures significantly curtailed the information screening walls. In a May 17 opinion, the FISC granted some of the Administration's newly requested powers, but refused to grant the Justice Department heightened information sharing powers proposed by the Attorney General.

According to the court, "in approving minimization procedures the Court is to ensure that the intrusiveness of foreign intelligence surveillances and searches on the privacy of U.S. persons is 'consistent' with the need of the United States to collect foreign intelligence information from foreign powers and their agents." The opinion states that the Justice Department and FBI supplied erroneous information to the FISC in more than 75 applications for search warrants and wiretaps, including one signed by then-FBI director Louis Freeh. Authorities also improperly shared intelligence information with investigators and prosecutors handling criminal cases on at least four occasions. These abuses were discovered by the Justice Department and reported to the FISC in 2000. In one case, the FISC was so angered by inaccuracies in affidavits submitted to the court that the judges barred the agent responsible from ever appearing again before the FISC. In rejecting the new minimization procedures, the FISC stated that "[i]n virtually every instance, the government's misstatements and omissions in FISA applications and violations of the Court's orders involved information sharing and unauthorized disseminations to criminal investigators and prosecutors."

Because of the Administration's history of misuse of FISA authority, the FISC decided that the new procedures proposed by Ashcroft in March would give prosecutors too much control over intelligence investigations, and would allow the government to "end-run" the more stringent Title III wiretap requirements by obtaining information for criminal investigations under the lower FISA standards. "The 2002 procedures appear to be designed to amend the law and substitute the FISA for Title III electronic surveillance and Rule 41 searches." The opinion further illustrates the FISC's perturbation with the lack of response from the Justice Department, which has yet to explain how the misrepresentations and abuses occurred. The Department is still conducting an internal investigation.

Under the operative standards, the Justice Department must seek explicit FISC approval before sharing information obtained in a FISA investigation with a criminal investigator or prosecutor. The March memorandum proposed that criminal prosecutors be given routine access to such information, and that they be allowed to direct intelligence investigations when appropriate.

Ashcroft filed a formal appeal to the FISC's opinion on August 22, which constitutes the first formal challenge to the FISC in its 23-year history. Until this incident, the FISC has approved all but one FISA application sought by the government since the court's inception. The Court of Review heard the Justice Department's oral argument on September 9.

In the wake of the FISC opinion, Congress has begun to show signs of willingness to enact some FISA reforms. The first hearings discussing the need for such reform were held by the Senate Intelligence Committee on July 31, and the Senate Judiciary Committee on September 10.

 

 

Previous News

Resources

Articles and Publications

Legal Resources

Websites

EPIC Home Page

Last Updated: May 2, 2008
Page URL: http://www.epic.org/privacy/terrorism/fisa/default.html