Sept. 22, 2015

“FISA” redirects here. For other uses, see FISA (disambiguation).

The Foreign Intelligence Surveillance Act of 1978 (“FISA” Pub.L. 95–511, 92 Stat. 1783, 50 U.S.C. ch. 36) is a United States federal law which prescribes procedures for the physical and electronic surveillance and collection of “foreign intelligence information” between “foreign powers” and “agents of foreign powers” (which may include American citizens and permanent residents suspected of espionage or terrorism).[1] It has been repeatedly amended since the September 11 attacks.

…

The subchapters of FISA provide for:

    Electronic surveillance (50 U.S.C. ch. 36, subch. I)

    Physical searches (50 U.S.C. ch. 36, subch. II)

    Pen registers and trap & trace devices for foreign intelligence purposes (50 U.S.C. ch. 36, subch. III)

    Access to certain business records for foreign intelligence purposes (50 U.S.C. ch. 36, subch. IV)

    Reporting requirement (50 U.S.C. ch. 36, subch. V)

The Act created a court which meets in secret, and approves or denies requests for search warrants. Only the number of warrants applied for, issued and denied, is reported. In 1980 (the first full year after its inception), it approved 322 warrants.[9] This number has steadily grown to 2,224 warrants in 2006.[10] In the period 1979–2006, a total of 22,990 applications for warrants were made to the Court of which 22,985 were approved (sometimes with modifications; or with the splitting up, or combining together, of warrants for legal purposes), and only 5 were definitively rejected.[11]

Electronic surveillance[edit]

Generally, the statute permits electronic surveillance in two different scenarios.

Without a court order[edit]

The President may authorize, through the Attorney General, electronic surveillance without a court order for the period of one year provided it is only for foreign intelligence information;[7] targeting foreign powers as defined by 50 U.S.C. § 1801(a)(1),(2),(3)[12] in certain conditions; and there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.[13]

The Attorney General is required to make a certification of these conditions under seal to the Foreign Intelligence Surveillance Court,[14] and report on their compliance to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence.[15]

Since 50 U.S.C. § 1802(a)(1)(A) of this Act specifically limits warrantless surveillance to foreign powers as defined by 50 U.S.C. §1801(a) (1),(2), (3) and omits the definitions contained in 50 U.S.C. §1801(a) (4),(5),(6) the act does not authorize the use of warrantless surveillance on: groups engaged in international terrorism or activities in preparation therefore; foreign-based political organizations, not substantially composed of United States persons; or entities that are directed and controlled by a foreign government or governments.[16] Under the FISA act, anyone who engages in electronic surveillance except as authorized by statute is subject to both criminal penalties[17] and civil liabilities.[18]

Under 50 U.S.C. § 1811, the President may also authorize warrantless surveillance at the beginning of a war. Specifically, he may authorize such surveillance “for a period not to exceed fifteen calendar days following a declaration of war by the Congress”.[19]

With a court order[edit]

Alternatively, the government may seek a court order permitting the surveillance using the FISA court.[20] Approval of a FISA application requires the court find probable cause that the target of the surveillance be a “foreign power” or an “agent of a foreign power”, and that the places at which surveillance is requested is used or will be used by that foreign power or its agent. In addition, the court must find that the proposed surveillance meet certain “minimization requirements” for information pertaining to U.S. persons.[21] Depending on the type of surveillance, approved orders or extensions of orders may be active for 90 days, 120 days, or a year.[22]

Physical searches[edit]

In addition to electronic surveillance, FISA permits the “physical search” of the “premises, information, material, or property used exclusively by” a foreign power. The requirements and procedures are nearly identical to those for electronic surveillance.

FISA court[edit]

Main article: United States Foreign Intelligence Surveillance Court

The Act created the Foreign Intelligence Surveillance Court (FISC) and enabled it to oversee requests for surveillance warrants by federal police agencies (primarily the F.B.I.) against suspected foreign intelligence agents inside the U.S. The court is located within the Department of Justice headquarters building. The court is staffed by eleven judges appointed by the Chief Justice of the United States to serve seven-year terms.

Proceedings before the FISA court are ex parte and non-adversarial. The court hears evidence presented solely by the Department of Justice. There is no provision for a release of information regarding such hearings, or for the record of information actually collected.

Main article: United States Foreign Intelligence Surveillance Court of Review

Denials of FISA applications by the FISC may be appealed to the Foreign Intelligence Surveillance Court of Review. The Court of Review is a three judge panel. Since its creation, the court has come into session twice: in 2002 and 2008.

Remedies for violations[edit]

Both the subchapters covering physical searches and electronic surveillance provide for criminal and civil liability for violations of FISA.

Criminal sanctions follows violations of electronic surveillance by intentionally engaging in electronic surveillance under the color of law or through disclosing information known to have been obtained through unauthorized surveillance. The penalties for either act are fines up to US$10,000, up to five years in jail, or both.[17]

In addition, the statute creates a cause of action for private individuals whose communications were unlawfully monitored. The statute permits actual damages of not less than $1,000 or $100 per day. In addition, that statute authorizes punitive damages and an award of attorney’s fees.[18]Similar liability is found under the subchapter pertaining to physical searches. In both cases, the statute creates an affirmative defense for law enforcement personnel acting within their official duties and pursuant to a valid court order. Presumably, such a defense is not available to those operating exclusively under presidential authorization.

Lone wolf amendment[edit]

In 2004, FISA was amended to include a “lone wolf” provision. 50 U.S.C. § 1801(b)(1)(C). A “lone wolf” is a non-U.S. person who engages in or prepares for international terrorism. The provision amended the definition of “foreign power” to permit the FISA courts to issue surveillance and physical search orders without having to find a connection between the “lone wolf” and a foreign government or terrorist group. However, “if the court authorizes such a surveillance or physical search using this new definition of ‘agent of a foreign power’, the FISC judge has to find, in pertinent part, that, based upon the information provided by the applicant for the order, the target had engaged in or was engaging in international terrorism or activities in preparation therefor”.[23]

https://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act

http://investmentwatchblog.com/in-1978-the-united-states-congress-passed-the-foreign-intelligence-surveillance-act-this-allowed-the-formation-of-secret-courts-that-can-issue-warrants-and-monitor-people-all-over-the-world/