Focusing public attention on emerging privacy and civil liberties issues

Foreign Intelligence Surveillance Court (FISC)

The Foreign Intelligence Surveillance Court (FISC) was established by the Foreign Intelligence Surveillance Act (FISA) of 1978. It was originally composed of seven district judges, from seven circuits, appointed by the Chief Justice of the United States to serve for a maximum of seven years. In 2001, the Patriot Act increased the number of judges on the Court to eleven, with three required to live within 20 miles of the District of Columbia. The Chief Justice appoints a Presiding Judge for the court from amongst these eleven judges.

FISA also created a Foreign Intelligence Surveillance Court of Review to handle appeals from applications denied by FISC. This court is made up of three judges, also appointed by the Chief Justice, from U.S. district or appellate courts and serving for seven years.

The FISC has jurisdiction to "hear applications for and grant orders approving electronic surveillance" and "physical search[es]" for the "purpose of obtaining foreign intelligence information" on foreign nationals within the United States. Procedures at the FISC are secretive and are also widely considered to be non-adversarial, since the target of the order is not given an opportunity to appear at the hearing or informed of the presence of the order. However, the court rules of procedure do allow the electronic service providers to appear in order to challenge or modify any order. In addition, records from FISC hearings are not revealed even to those persons whom the government wishes to investigate, though the FISC may choose to publish its opinions, on its discretion.

At a FISC hearing, the government is not required to present evidence of the probable cause necessary for obtaining a search warrant or evidence of actual criminal activity. Rather, under FISA, the government needs only to present evidence that the surveillance target is a foreign power or an agent of one.

Top News

  • 2012 FISA Orders Up, National Security Letters Down, No Surveillance Request Denied: According to the 2012 Foreign Intelligence Surveillance Act (FISA) Report, the Department of Justice submitted 1,856 applications to the Foreign Intelligence Surveillance Court (FISC), a 6.4% increase over 2011. Of the 1,856 search applications, 1,789 sought authority to conduct electronic surveillance. The FISC did not deny any of the applications, although one was withdrawn by the Government. However, the FISC did make modifications to 40 of the applications, including one from the 2011 reporting period. In addition to the FISA orders, the FBI sent 15,229 National Security Letter requests for information concerning 6,223 different U.S. persons. This is a modest decrease from the 16,511 requests sent in 2011. Almost no information is available about FISA surveillance beyond the figures contained in the annual FISA letter, sent to the Senate each year by the Department of Justice, Office of Legislative Affairs. EPIC has recommended greater reporting of FISC applications and opinions, similar to what is disclosed in the Federal Wiretap Reports. For more information, see EPIC: Foreign Intelligence Surveillance Act Court Orders 1979-2012 and EPIC: Foreign Intelligence Surveillance Act. (May. 2, 2013)
  • Supreme Court Blocks Challenge to FISA Surveillance: The Supreme Court ruled today in Clapper v. Amnesty Int'l USA that a constitutional challenge to the Foreign Intelligence Surveillance Act (FISA) cannot go forward. A group of attorneys and journalists alleged that the U.S. government could be intercepting their communications with their foreign contacts, in violation of the Fourth Amendment. In a divided 5-4 decision, Justice Alito wrote that the group's alleged injuries were too speculative to be considered. Justice Breyer, joined by Justices Ginsburg, Kagan, and Sotomayor, dissented and said that the Court's "certainly impending" standard was inconsistent with prior decisions. Justice Breyer also cited EPIC's "friend of the court" brief which described the extraordinary capacity of the NSA to capture private communications. For more information, see EPIC: Clapper v. Amnesty Int'l USA and EPIC: FISA. (Feb. 27, 2013)
  • Senate to Debate Privacy Amendments for Surveillance Law: The Senate is scheduled to debate several proposals that would establish new safeguards for the FISA Amendments Act, a controversial law that allows surveillance of the phone and email communications of US citizens without a warrant. Earlier this year, EPIC testified before the House Judiciary Committee, and recommended increased transparency and new public reporting of the Government's surveillance activities. Currently, the FISA letter to Congress provides little information about Government conduct. "Congress should not reauthorize the FISA Amendments Act until adequate oversight procedures are in place," EPIC Executive Director Marc Rotenberg said at the May hearing. For more information, see EPIC: Foreign Intelligence Surveillance Act and EPIC: Clapper v. Amnesty International. (Dec. 26, 2012)
  • Justices Hear Arguments in Surveillance Standing Case: The Supreme Court heard oral arguments in Clapper v. Amnesty International, a case concerning the right to challenge illegal surveillance. A federal appeals court ruled in favor of a group of plaintiffs, including human rights advocates, journalists and attorneys, and held that their costs incurred to avoid surveillance were sufficient to establish a live controversy under the Constitution. Solicitor General Donald Verilli, arguing on behalf of the United States and the Director of National Intelligence, claimed that plaintiffs could not establish a sufficiently concrete injury because they do not know if they had been subject to surveillance. The Justices, including Justice Kennedy, seemed concerned about the possibility of government surveillance of privileged attorney-client communications. EPIC filed an amicus brief, joined by thirty-two legal scholars and technical experts, and six privacy and open government organizations, arguing that the plaintiffs concerns were well founded considering the surveillance capabilities of the NSA and the failure to establish sufficient public reporting requirements for lawful surveillance. For more information, see: EPIC: Clapper v. Amnesty Int'l USA and EPIC: Foreign Intelligence Surveillance Act. (Oct. 29, 2012)
  • EPIC Urges Supreme Court to Uphold Review of Wiretapping Programs: Today EPIC filed an amicus brief with the US Supreme Court in Clapper v. Amnesty International USA, a case challenging the interception of communications of US persons under foreign intelligence surveillance laws. This case presents the issue of constitutional "standing," whether the journalists and human rights organizations who brought he lawsuit can establish an imminent threat or reasonable fear that their communications will be collected. The federal appeals court found in their favor. In urging affirmance, EPIC argued that the capacity of National Security Agency to intercept private communications combined with the failure to establish meaningful oversight underscores the concern that the interception of private communications would occur. The EPIC brief is supported by 32 legal scholars and technical experts, and six organizations devoted to privacy and open government. For more information, see EPIC: Clapper v. Amnesty, EPIC: Foreign Intelligence Surveillance Act (FISA). (Sep. 24, 2012)
  • House Renews Foreign Intelligence Surveillance Powers: The House has voted to reauthorize the FISA Amendments Act (301-118). The Act authorizes programs of surveillance intended to target foreign agents, but allows collection of private communications of United States citizens without individualized suspicion. In May 2012, EPIC Executive Director Marc Rotenberg testified before the House Judiciary Committee on the legislation and recommended new oversight procedures. The Senate has yet to consider the measure. Senator Ron Wyden (D-OR) and others have expressed concern about renewal of the Act. For more information, see EPIC: Foreign Intelligence Surveillance Act and EPIC: Clapper v. Amnesty International USA. (Sep. 12, 2012)
  • FISA Reform Proposal Moves Forward in Senate: The Senate Judiciary Committee has approved a bill that would established new safeguards for the Foreign Intelligence Surveillance Amendments Act. The Act provides for court approval of 'programs of surveillance' that allow for the collection of communications of US citizens. The bill, sponsored by Senator Patrick Leahy (D-VT), would renew the Act but also establish new reporting requirements to improve government accountability. In May 2012, EPIC Executive Director Marc Rotenberg testified before the House Judiciary Committee, and recommended increased oversight and reporting. For more information, see EPIC: Foreign Intelligence Surveillance Act and EPIC: Clapper v. Amnesty International USA. (Jul. 20, 2012)
  • House Panel Votes to Renew Surveillance Law Without New Safeguards: The House Judiciary Committee voted to reauthorize the FISA Amendments Act, HR 5949, through Dec. 31, 2017 without any changes. The Act authorizes "programs of surveillance" intended to target foreign agents, but also allows collection of private communications of United States citizens without individualized suspicion. EPIC Executive Director Marc Rotenberg recently testified before the Committe and recommended that Congress strengthen oversight procedures to protect privacy and limit possible misuses of the legal authority. But amendments to improve accountability introduced by Rep. John Conyers (D-MI), Rep. Jerold Nadler (D-NY), Rep. Bobby Scott (D-VA), and Rep. Sheila Jackson-Lee (D-Texas), were all defeated. In the Senate, Senator Ron Wyden (D-OR) and others have expressed concern about renewal of the Act. For more information, see EPIC: Foreign Intelligence Surveillance Act and EPIC: Clapper v. Amnesty International USA. (Jun. 21, 2012)
  • House to Consider Bill to Reauthorize Expansive Surveillance Law: The House Committee on the Judiciary will markup the FISA Amendments Act Reauthorization Act of 2012 on Tuesday, June 19, 2012. The Act authorizes government surveillance of international communications, including the private communications of United States citizens. Currently, the law provides little information to Congress or the public about these surveillance activities. EPIC Executive Director Marc Rotenberg recently testified at an oversight hearing, and called on Congress to strengthen oversight procedures and increase transparency before the Act is renewed. In a recent report by the Senate Intelligence Committee, Senators Mark Udall and Ron Wyden also said that the FISA contains a loophole that allows the government "to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens." For more information, see EPIC: Foreign Intelligence Surveillance Act and EPIC: Clapper v. Amnesty International. (Jun. 18, 2012)
  • EPIC to Congress: "Strengthen FISA Oversight": EPIC Executive Director Marc Rotenberg will testify before the House Judiciary Subcommittee on the FISA Amendments Act of 2008. The Act authorizes Government surveillance of international communications, including the private communications of U.S. citizens. EPIC will recommend increased transparency and new public reporting of the Government's surveillance activities. Currently, the FISA letter to Congress provides little to no information about Government conduct. "Congress should not reauthorize the FISA Act until adequate oversight procedures are in place," Rotenberg said. The hearing will be webcast. For more information, see EPIC: Foreign Intelligence Surveillance Act and EPIC: Clapper v. Amnesty International. (Jun. 1, 2012)

Legal Documents

FISA Court Orders

FISA Court Orders, By Year

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National Security Letters Issued, By Year

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For more information, including exact numbers and sources, please refer to EPIC's FISA Court Orders Chart

Previous News

  • Secret Surveillance Continues to Increase. The Foreign Intelligence Surveillance Act Report reveals that the government made 2,072 secret surveillance requests in 2005, a record high and 18 percent more than 2004. None of the requests were denied by the Foreign Intelligence Surveillance Court, the secretive body that issues the warrants. In contrast, the Department of Justice reports (pdf) that law enforcement agencies across the country were authorized to conduct 1,773 wiretaps, which are issued under a more stringent standard. The report on secret wiretap warrants also indicated that the government issued 9,254 National Security Letters during 2005. These letters can be used to obtain information about individuals without the government applying for a court-reviewed warrant. (May 2, 2006)
  • American Bar Association Says Unlawful Surveillance Should Stop. A new report (pdf) from the American Bar Association calls on the President to abide by constitutional checks and balances, and to end electronic surveillance inside the United States that does not comply with the Foreign Intelligence Surveillance Act. The Association overwhelmingly supported the report, which also urged the Congress to undertake comprehensive investigations. (Feb. 15, 2006)
  • Electronic Surveillance at an All-Time High in 2004. The Foreign Intelligence Surveillance Act Annual Report (pdf) reveals that there were 1758 applications for secret surveillance in 2004, an all-time high. None of the applications for secret surveillance warrants were denied. In 2004, as in 2003, more secret surveillance warrants were granted than federal wiretap warrants, which have more stringent standards. A report on federal wiretap warrants in 2004 reveals that state and federal courts authorized 1,710 interceptions in 2004, an increase of 19 percent over 2003 and more than in any previous year. Federal officials made an all-time high 730 intercept applications in 2004, a 26 percent increase over 2003. (Apr. 29, 2005)
  • 2003 Surveillance Report: Secret Warrants Surpass Standard Warrants. The 2003 Foreign Intelligence Surveillance Act Annual Report (pdf) reveals that the Foreign Intelligence Surveillance Court granted 1724 applications for secret surveillance last year, more than in any previous year. The report shows that 2003 was the first year ever that more secret surveillance warrants were granted than federal wiretap warrants, which are issued only under a more stringent legal standard. The PATRIOT Act significantly expanded the government's authority to make use of secret surveillance, including in circumstances where part of the investigation is unrelated to an intelligence investigation. The report also reveals that a small number of applications for secret surveillance were denied in 2003 for the first time ever. For more information, see EPIC's FISA statistics page. (May 6, 2004)
  • FISA Wiretaps At All-Time High. According to the 2002 FISA Annual Report from the Attorney General, "All 1228 applications presented to the Foreign Intelligence Surveillance Court in 2002 were approved." In 2001, 934 applications were approved. See EPIC's FISA statistics page. (May 1, 2003)
  • Surveillance Oversight Act Introduced. Members of the Senate Judiciary Committee have introduced the Domestic Security Oversight Act (pdf). The bill would increase the public reporting requirements of the Department of Justice on its implementation of the Foreign Intelligence Surveillance Act. The American Bar Association has also urged (pdf) better public reporting regarding the FISA. An interim report by the bill sponsors (pdf) on the FBI's use of the FISA details major problems with its implementation. (Feb. 25, 2003)
  • American Bar Association Urges FISA Oversight. The American Bar Association has adopted a resolution calling on Congress to conduct oversight of the Foreign Intelligence Surveillance Act to ensure that government investigations do not violate Constitutional protections. The ABA also urged Congress to require annual reports for FISA investigations, comparable to those required by the federal wiretap act. The ABA action follows a controversial decision by the Foreign Intelligence Court of Review. (Feb. 11, 2003)
  • Secret Appeals Court Permits Broader Electronic Surveillance. The secretive Foreign Intelligence Surveillance Court of Review today issued an opinion (pdf) granting the executive branch broader surveillance authority in foreign intelligence cases. The opinion, which overturned the lower court's determination, was the first issued by the Court of Review since FISA's inception in 1978. The case involves an unprecedented decision made public in August which revealed a pattern of FBI misrepresentations to a secret surveillance court. For more information, see the ACLU's press release on the decision. (Nov. 18, 2002)
  • Memo Reveals FBI Wiretap Violations. A recently disclosed FBI memo reveals that agents illegally videotaped suspects, intercepted e-mails without court permission, recorded the wrong phone conversations, and allowed electronic surveillance operations to run beyond their legal deadline, during sensitive terrorism investigations. The mistakes referenced in the internal memo are different than those delineated and criticized in May by the Foreign Intelligence Surveillance Court. The existence of the memo was first revealed in documents EPIC obtained in a FOIA lawsuit. (Oct. 10, 2002)
  • Rights Groups File Brief With Secret Appeals Court. EPIC has joined with a coalition of civil liberties groups to urge a secret appeals court to reject a government bid for broadly expanded powers to conduct "national security" surveillance on U.S. citizens. In an amicus brief (pdf) filed with the Foreign Intelligence Surveillance Court of Review, the groups said that expanding such powers would jeopardize fundamental constitutional interests. The case involves an unprecedented decision made public last month which revealed a pattern of FBI misrepresentations to a secret surveillance court (see below). (Sep. 20, 2002)
  • FISA Court Chastises DOJ, FBI. In a published opinion (also available in pdf), the secretive Foreign Intelligence Surveillance Act (FISA) Court sharply criticized the DOJ and FBI for providing the tribunal misleading information in 75 cases. The Court limited the request of the DOJ to share intelligence information for criminal prosecutions. The Court said that DOJ substituted relaxed foreign intelligence gathering wiretapping procedures to evade higher requirements for standard criminal investigations: "The 2002 procedures appear to be designed to amend the law and substitute the FISA for Title III electronic surveillances" The Court continues to say that this may be because "the government is unable to meet the substantive requirements of these law enforcement tools..." (Aug. 23, 2002)

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