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
- Congressional Leaders Strike Deal to Extend Patriot Act: Lawmakers in the House and the Senate have reached an agreement that would renew key provisions of the Patriot Act, though amendments are still possible. One of the sections, known as the "lone wolf" provision, allows terrorist investigations of non-citizens without having to show connections to a terrorist organization. The Patriot Act expanded the authority of law enforcement and intelligence agencies to monitor private communications and access personal information. Among other things, the Patriot Act amended the Foreign Intelligence Surveillance Act (FISA) to allow the FBI to use National Security Letters for In place of court-approved warrants. In 2010, 24,287 NSLs were issued, up 64% from the previous year. For more Information, see EPIC: USA Patriot Act and EPIC: Foreign Intelligence Surveillance Act. (May. 20, 2011)
- 2010 FISA Orders Up 19%, No Surveillance Request Turned Down: The Department of Justice has released the 2010 Foreign Intelligence Surveillance Act (FISA) report. In 2010, the Justice Department submitted 1,579 FISA search applications to the Foreign Intelligence Surveillance Court, a 19% increase over 2009. The court did not deny or modify any applications. Also in 2010 the FBI made 24,287 National Security Letter requests for information pertaining to 14,212 different U.S. persons. This is a substantial increase from the 14,788 national security letter requests concerning 6,114 U.S. persons in 2009. EPIC has recommended greater accountability for the Foreign Intelligence Surveillance Court. For more information, see: EPIC: Foreign Intelligence Surveillance Act Court Orders 1979-2010 and EPIC: Foreign Intelligence Surveillance Act. (May. 9, 2011)
- EPIC v. DOJ: Warrantless Wiretapping Memos Disclosed: Pursuant to EPIC v. DOJ, the Justice Deparment has turned over two legal memos concerning the Bush-era warrantless wiretapping program. EPIC sought these memos within hours after the New York Times first reported on the wiretapping program in 2005. The memos, dated November 2, 2001 and May 6, 2004, contain portions of the Bush Administration's justifications for the program, but are heavily redacted. The Obama Administration withheld three other memos in their entirety. For more information, see EPIC: Wiretapping, EPIC: Foreign Intelligence Surveillance Act (FISA), and Lawfare, "DOJ Releases Redacted Version of 2004 Surveillance Opinion." (Mar. 22, 2011)
- EPIC Supports Proposed Reforms for Surveillance Court, Urges Additional Measures: EPIC has submitted comments on the proposed rules for the Foreign Intelligence Surveillance Court. In comparison to the previous rules, promulgated in 2006, EPIC said that the new rules would strengthen judicial independence, improve congressional oversight, and promote, to some extent, greater transparency of the court that oversees the Foreign Intelligence Surveillance Act. EPIC also urged the Court to establish a web presence with information about the Court's activities and to publish detailed annual reports. EPIC said these measures would promote accountability and enhance public understanding of the Court and its functions. For more information, see EPIC: Foreign Intelligence Surveillance Court and EPIC: Foreign Intelligence Surveillance Act. (Oct. 4, 2010)
- Surveillance Court Seeks Public Comments on Proposed Rules: The Foreign Intelligence Surveillance Act (FISA) authorizes a special court the Foreign Intelligence Surveillance Court (FISC) to undertake electronic surveillance in the United States for foreign intelligence information. The FISC is now seeking public comments concerning its procedures. Comments must received by Monday, October 4, 2010. EPIC previously submitted an amicus brief regarding FISA authority and national security. EPIC will be submitting comments to the FISC and endorse changes that improve accountability and transparency for FISA orders. See EPIC - Foreign Intelligence Surveillance Act (FISA) and EPIC - Foreign Intelligence Surveillance Act Orders 1979-2010 (Sep. 8, 2010)
- Inspector General Finds "Egregious Breakdown" in FBI Oversight: The Department of Justice Office of the Inspector General has issued a report on the FBI's use of "exigent letters" and other means to obtain telephone records from three unnamed phone companies. The 300-page report concludes that many of the FBI's practices "violated FBI guidelines, Department policy," and the Electronic Communications Privacy Act. The report also found that "the FBI sought and acquired reporters' telephone toll billing records and calling activity information" through improper means. The report concludes that "the FBI's initial attempts at corrective action were seriously deficient, ill-conceived, and poorly executed" and makes several recommendations for improvement. In a 2007 letter to the Senate Judiciary Committee, EPIC recommended that the FBI's National Security Letter authority be repealed. For more information, see EPIC National Security Letters. (Jan. 21, 2010)
- House Members Introduce PATRIOT and FISA Reform Bills: Representatives Conyers, Nadler, and Scott introduced two bills today that would amend the PATRIOT Act and the Foreign Intelligence Surveillance Act. The Patriot Amendments Act of 2009 will enhance reporting and judicial oversight of law enforcement powers, including the National Security Letter process. The FISA Amendments Act of 2009 will place new limits on the government's ability to collect and store Americans' communications without a warrant and repeals retroactive immunity. For more information, see EPIC FISA, EPIC PATRIOT Act. (Oct. 20, 2009)
- PATRIOT Act Revisions Introduced in Senate: Today, Sen. Russ Feingold (D-WI) and seven cosponsors introduced the Judicious Use of Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act. The bill would amend the PATRIOT Act, the FISA Amendments Act, and other surveillance and intelligence laws. Among other changes, the JUSTICE Act would reform the National Security Letter process, revise the guidelines for business records orders, eliminate the catch-all provision for "sneak-and-peek" searches, and add new safeguards for FISA roving wiretaps. The JUSTICE Act would also repeal retroactive immunity for telecommunications companies, and is supported by many civil liberties organizations. For more information, see EPIC USA PATRIOT Act, EPIC FISA, EPIC Wiretapping, and EPIC National Security Letters. (Sep. 17, 2009)
- Senators Consider PATRIOT Act Reforms: Senators Russ Feingold (D-WI) and Dick Durbin (D-IL) are drafting legislative reforms to revise the USA PATRIOT Act. The USA PATRIOT Act allows authorities to conduct surveillance without judicial review through the use of National Security Letters. The Senators asked the Attorney General and the Chairmen of the Senate Judiciary and Intelligence Committee to consider two previous bills that add protections to PATRIOT ACT. Pursuant to a EPIC lawsuit, a federal judge had ordered the Justice Department to provide for independent judicial inspection of documents relating to warrantless wiretapping. For more information, see EPIC USA PATRIOT Act, EPIC FISA, EPIC Wiretapping, and EPIC National Security Letters. (Aug. 7, 2009)
- Inspector Generals Release Report on President's Surveillance Program: The Inspector Generals of the Intelligence Community released a report on the President's Surveillance Program. The report summarizes the unclassified collective results of the reviews. The Program involved the massive, warrantless surveillance of Americans in the United States. The IG Report finds that the absence of effective oversight contributed to the ineffectiveness of the program. In December 2005, EPIC had requested the legal opinions that were prepared to justify the program. The government has refused to produce many key documents, and EPIC sued under the Freedom of Information Act. In March this year, the Attorney General released several related memos, which previously were secret, following President Obama's statement on government transparency. See EPIC FISA, EPIC Surveillance FOIA, EPIC Wiretapping, and EPIC National Security Letters. (Jul. 10, 2009)
Legal Documents
- Foreign Intelligence Surveillance Court Annual Reports (compiled by FAS)
- Executive Order 12958, April 20, 1995 (Controls FISC Security Measures)
- Executive Order 13292, March 25, 2003 (Amendment to Executive Order 12958)
- Executive Order 13526, December 29, 2009, and Amendment, January 8, 2010 (New Security Measures, under FISC 2010 Proposed Rules of Procedure)
- FISC Rules and Procedures, Effective February 17, 2006
- 2010 Proposed FISC Rules and Procedures, Pending
- In re Sealed Case No. 02-001, Consolidated with 02-002, November 18, 2002
- In re Motion for Release of Court Records No. 07-01, December 11, 2007 (Memorandum Opinion on Motion by ACLU for Release of Court Records)
- In re Directives No. 08-01, August 22, 2008
FISA Court Orders
FISA Court Orders, By Year
National Security Letters Issued, By Year
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)
Resources
- U.S. Courts, The Foreign Intelligence Surveillance Court and the Court of Review
- Government keeps secrets hush, hush, Dana Hedgpeth (September 14, 2010)
- Intelligence Surveillance Court Could Become Less Secret, Ellen Nakishima and Spencer S. Hsu (September 13, 2010)
- More on the FISC Rules of Procedure, Gregory S. McNeal (September 10, 2010)
- The FISA Court Sends a Message to the Executive Branch, Mark Ambinder (September 9, 2010)
- New FISC Rules of Procedure, Gregory S. McNeal (September 7, 2010)
- How to Conduct Surveillance of Terror Suspects, Daniel Gallington (September 6, 2010)
- FISA Court Proposes New Rules, Steven Aftergood (September 2, 2010)
- Surveillance Court Quietly Moving, Del Quentin Wilber (March 2, 2009)

