Foreign Intelligence Surveillance Act of 1978
Encyclopedia
America's Foreign Intelligence Surveillance Act of 1978 ("FISA" , ) is an Act of Congress
, (signed by President Jimmy Carter
), 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 being engaged in espionage and violating U.S. law on territory under United States control). The law, of course, does not apply outside the US.
, primarily to include terrorism on behalf of groups that are not specifically backed by a foreign government.
An overhaul of the bill, the Protect America Act of 2007
was signed into law on August 5, 2007. It expired on February 17, 2008.
The FISA Amendments Act of 2008
passed by the United States Congress
on July 9, 2008.
. The bill was cosponsored by the nine Senators: Birch Bayh
, James O. Eastland, Jake Garn
, Walter Huddleston
, Daniel Inouye
, Charles Mathias, John L. McClellan, Gaylord Nelson
, and Strom Thurmond
.
The act was signed into law by President Carter in 1978.
The Foreign Intelligence Surveillance Act resulted from extensive investigations by Senate Committees into the legality of domestic intelligence
activities. These investigations were led separately by Sam Ervin
and Frank Church
in 1978 as a response to President Richard Nixon
’s usage of federal resources to spy on political and activist groups, which violates the Fourth Amendment to the U.S. Constitution. The act was created to provide Judicial and congressional oversight of the government's covert surveillance activities of foreign entities and individuals in the United States, while maintaining the secrecy needed to protect national security. It allowed surveillance, without court order
, within the United States for up to one year unless the "surveillance will acquire the contents of any communication to which a United States person is a party". If a United States person is involved, judicial authorization was required within 72 hours after surveillance begins.
ordered by the Bush administration and carried out by the National Security Agency
since 2002 (a subsequent Bloomberg
article suggested that this may have already begun by June 2000).
, any faction(s) or foreign governments not substantially composed of US persons, and any entity directed or controlled by a foreign government. §§1801(a)(1)-(3) The definition also includes groups engaged in international terrorism and foreign political organizations. §§1801(a)(4) and (5). The sections of FISA authorizing electronic surveillance and physical searches without a court order specifically exclude their application to groups engaged in international terrorism. See §1802(a)(1) (referring specifically to §1801(a)(1), (2) and (3)).
The statute includes limits on how it may be applied to US persons. A "US person" includes citizens, lawfully admitted permanent resident aliens, and corporation
s incorporated in the US.
The code defines "foreign intelligence information" to mean information necessary to protect the United States
against actual or potential grave attack, sabotage
or international terrorism.
In sum, a significant purpose of the electronic surveillance must be to obtain intelligence in the U.S. on foreign powers (such as enemy agents or spies) or individuals connected to international terrorist groups. To use FISA, the government must show probable cause that the “target of the surveillance is a foreign power or agent of a foreign power.”http://belfercenter.ksg.harvard.edu/files/IC-book-finalasof12JUNE.pdf
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. This number has steadily grown to 2224 warrants in 2006.
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.
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; targeting foreign powers as defined by (a)(1),(2),(3) or their agents; 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.
The Attorney General is required to make a certification of these conditions under seal to the Foreign Intelligence Surveillance Court, and report on their compliance to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence.
Since 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. Under the FISA act, anyone who engages in electronic surveillance except as authorized by statute is subject to both criminal penalties and civil liabilities.
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."
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 US persons.
The requirements and procedures are nearly identical to those for electronic surveillance.
) 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.
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 only come into session once in 2002.
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 $
10,000, up to five years in jail, or both.
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.
Similar liability is found under the subchapter pertaining to physical searches.
In both cases, the statute creates an affirmative defense
for a law enforcement agent 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.
held that the requirements of the Fourth Amendment
applied equally to electronic surveillance and to physical searches. Katz v. United States
, 389 U.S. 347 (1967). The Court did not address whether such requirements apply to issues of national security
. Shortly after, in 1972, the Court took up the issue again in United States v. United States District Court, Plamondon
, where the court held that court approval was required in order for the domestic surveillance to satisfy the Fourth Amendment. 407 U.S. 297 (1972). Justice Powell
wrote that the decision did not address this issue that "may be involved with respect to activities of foreign powers or their agents."
In the time immediately preceding FISA, a number of courts squarely addressed the issue of "warrantless wiretaps". In both United States v. Brown, 484 F.2d 418 (5th Cir. 1973), and United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), the courts upheld warrantless wiretaps. In Brown, a US citizen's conversation was captured by a wiretap authorized by the Attorney General for foreign intelligence purposes. In Butenko, the court held a wiretap valid if the primary purpose was for gathering foreign intelligence information.
A plurality opinion in Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975), held that a warrant was required for the domestic surveillance of a domestic organization. In this case, the court found that the domestic organization was not a "foreign power or their agent", and "absent exigent circumstances, all warrantless electronic surveillance is unreasonable and therefore unconstitutional."
In the United States v. Duggan, the defendant
s were members of the Irish Republican Army
. 743 F.2d 59 (2nd Cir., 1984). They were convicted for various violations regarding the shipment of explosives and firearm
s. The court held that there were compelling considerations of national security in the distinction between the treatment of U.S. citizens and non-resident aliens.
In the United States v. Nicholson, the defendant moved to suppress all evidence
gathered under a FISA order. 955 F.Supp. 588 (Va. 1997). The court affirmed the denial of the motion. There the court flatly rejected claims that FISA violated Due process clause of the Fifth Amendment
, Equal protection, Separation of powers
, nor the Right to counsel
provided by the Sixth Amendment
.
However, in a third case, the special review court for FISA, the equivalent of a Circuit Court Of Appeals, opined differently should FISA limit the President's inherent authority for warrantless searches in the foreign intelligence area. In In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002) the special court stated “[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information . . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”
, James Jay Carafano of the Heritage Foundation
, and Philip Bobbitt of Columbia Law School, among others, have argued that FISA may need to be amended (to include, among other things, procedures for programmatic approvals) as it may no longer be adequate to address certain foreign intelligence needs and technology developments, including: the transition from circuit-based communications to packet-based
communications; the globalization
of communications
infrastructure; and the development of automated monitoring techniques, including data mining
and traffic analysis
.
The need for programmatic approval of technology-enabled surveillance programs is particularly crucial in foreign intelligence. See, for example, John R. Schmidt, the associate attorney general (1994–1997) in the Justice Department under President Bill Clinton, recalling early arguments made by then-Attorney General Edward Levi to the Church Committee
that foreign intelligence surveillance legislation should include provisions for programmatically authorizing surveillance programs because of the particular needs of foreign intelligence where "virtually continuous surveillance, which by its nature does not have specifically predetermined targets" may be required. In these situations, "the efficiency of a warrant requirement would be minimal."
And, in a recent essay, Judge Richard A. Posner opined that FISA “retains value as a framework for monitoring the communications of known terrorists, but it is hopeless as a framework for detecting terrorists. [FISA] requires that surveillance be conducted pursuant to warrants based on probable cause to believe that the target of surveillance is a terrorist, when the desperate need is to find out who is a terrorist.”
(R-OH), Lindsey Graham
(R-SC), Chuck Hagel
(R-NE), and Olympia Snowe
(R-ME) introduced the Terrorist Surveillance Act of 2006 (S.2455), under which the President would be given certain additional limited statutory authority to conduct electronic surveillance of suspected terrorists in the United States subject to enhanced Congressional oversight. Also on March 16, 2006, Senator Arlen Specter
(R-PA) introduced the National Security Surveillance Act of 2006 , which would amend FISA to grant retroactive amnesty for warrantless surveillance conducted under presidential authority and provide FISA court (FISC) jurisdiction to review, authorize, and oversight "electronic surveillance programs." On May 24, 2006, Senator Specter and Senator Dianne Feinstein
(D-CA) introduced the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006 asserting FISA as the exclusive means to conduct foreign intelligence surveillance.
All three competing bills were the subject of Judiciary Committee hearings throughout the summer. On September 13, 2006, the Senate Judiciary Committee voted to approve all three mutually exclusive bills, thus, leaving it to the full Senate to resolve.
On July 18, 2006, U.S. Representative Heather Wilson
(R-NM) introduced the Electronic Surveillance Modernization Act
. Wilson's bill would give the President the authority to authorize electronic surveillance of international phone calls and e-mail linked specifically to identified terrorist groups immediately following or in anticipation of an armed or terrorist attack on the United States. Surveillance beyond the initial authorized period would require a FISA warrant or a presidential certification to Congress. On September 28, 2006 the House of Representatives passed Wilson's bill and it was referred to the Senate.
was then signed into law by George W. Bush
on 2007-08-05.
Under the Protect America Act of 2007, communications that begin or end in a foreign country may be wiretapped by the US government without supervision by the FISA Court. The Act removes from the definition of "electronic surveillance" in FISA any surveillance directed at a person reasonably believed to be located outside the United States. As such, surveillance of these communications no longer requires a government application to, and order issuing from, the FISA Court.
The Act provides procedures for the government to "certify" the legality of an acquisition program, for the government to issue directives to providers to provide data or assistance under a particular program, and for the government and recipient of a directive to seek from the FISA Court, respectively, an order to compel provider compliance or relief from an unlawful directive. Providers receive costs and full immunity from civil suits for compliance with any directives issued pursuant to the Act.
A summary of key provisions follows.
The Act empowers the Attorney General or Director of National Intelligence ("DNI") to authorize, for up to one year, the acquisition of communications concerning "persons reasonably believed to be outside the United States" if the Attorney General and DNI determine that each of five criteria has been met:
This determination by the Attorney General and DNI must be certified in writing, under oath, and supported by appropriate affidavit(s). If immediate action by the government is required and time does not permit the preparation of a certification, the Attorney General or DNI can direct the acquisition orally, with a certification to follow within 72 hours. The certification is then filed with the FISA Court.
Once the certification is filed with the FISA Court, the Attorney General or DNI can direct a provider to undertake or assist in the undertaking of the acquisition.
If a provider fails to comply with a directive issued by the Attorney General or DNI, the Attorney General may seek an order from the FISA Court compelling compliance with the directive. Failure to obey an order of the FISA Court may be punished as a contempt of court.
Likewise, a person receiving a directive may challenge the legality of that directive by filing a petition with the FISA Court. An initial review must be conducted within 48 hours of the filing to determine whether the petition is frivolous, and a final determination concerning any non-frivolous petitions must be made – in writing – within 72 hours of receipt of the petition.
Determinations of the FISA Court may be appealed to the Foreign Intelligence Court of Appeals, and a petition for a writ of certiorari of a decision from the FICA can be made to the U.S. Supreme Court.
All petitions must be filed under seal.
The Act allows providers to be compensated, at the prevailing rate, for providing assistance as directed by the Attorney General or DNI.
The Act provides explicit immunity from civil suit in any federal or state court for providing any information, facilities, or assistance in accordance with a directive under the Act.
Within 120 days, the Attorney General must submit to the FISA Court for its approval the procedures by which the government will determine that acquisitions authorized by the Act conform with the Act and do not involve purely domestic communications. The FISA Court then will determine whether the procedures comply with the Act. The FISA Court thereafter will enter an order either approving the procedures or directing the government to submit new procedures within 30 days or cease any acquisitions under the government procedures. The government may appeal a ruling of the FISA Court to the FICA and ultimately the Supreme Court.
On a semiannual basis, the Attorney General shall inform the Intelligence and Judiciary Committees of the House and Senate of incidents of noncompliance with a directive issued by the Attorney General or the DNI, incidents of noncompliance with FISA Court-approved procedures by the Intelligence Community, and the number of certifications and directives issued during the reporting period.
The amendments to FISA made by the Act expire 180 days after enactment, except that any order in effect on the date of enactment remains in effect until the date of expiration of such order and such orders can be reauthorized by the FISA Court.” The Act expired on February 17, 2008.
In a September 10, 2007 address at a symposium on modernizing FISA held at Georgetown University Law Center
's National Security Center, Kenneth L. Wainstein, Assistant Attorney General for National Security, argued against the current six-month sunset provision
in the Protect America Act of 2007, saying that the broadened surveillance powers the act provides for should be made permanent. Wainstein proposed that internal audits by the Office of the Director of National Intelligence and the National Security Division of the Justice Department
, with reporting to select groups of Congressmen, would ensure that the expanded capability would not be abused.
Also on September 10, DNI Mike McConnell testified before the Senate Committee on Homeland Security and Governmental Affairs that the Protect America Act had helped foil a major terror plot in Germany. U.S. intelligence-community officials questioned the accuracy of McConnell's testimony and urged his office to correct it, which he did in a statement issued September 12, 2007. Critics cited the incident as an example of the Bush administration's exaggerated claims and contradictory statements about surveillance activities. Counterterrorism officials familiar with the background of McConnell's testimony said they did not believe he made inaccurate statements intentionally as part of any strategy by the administration to persuade Congress to make the new eavesdropping law permanent. Those officials said they believed McConnell gave the wrong answer because he was overwhelmed with information and merely mixed up his facts.
Speaking at National Security Agency
headquarters in Fort Meade, Maryland on September 19, 2007, President George W. Bush
urged Congress to make the provisions of the Protect America Act permanent. Bush also called for retroactive immunity for telecommunications companies who had cooperated with government surveillance efforts, saying, "It's particularly important for Congress to provide meaningful liability protection to those companies now facing multibillion-dollar lawsuits only because they are believed to have assisted in efforts to defend our nation, following the 9/11 attacks."
On October 4, 2007, the bipartisan Liberty and Security Committee of the Constitution Project
, co-chaired by David Keene
and David D. Cole
, issued its "Statement on the Protect America Act." http://www.constitutionproject.org/pdf/Statement%20on%20PAA1.pdf The Statement urged Congress not to reauthorize the PAA, saying the language of the bill "runs contrary to the tripartite balance of power the Framers envisioned for our constitutional democracy, and poses a serious threat to the very notion of government of the people, by the people and for the people." Some in the legal community have questioned the constitutionality of any legislation that would retroactively immunize telecommunications firms alleged to have cooperated with the government from civil liability for having potentially violated their customers' privacy rights.
In an article appearing in the January/February 2008 issue of the Institute of Electrical and Electronics Engineers
journal of Security and Privacy, noted technology experts from academia and the computing industry found significant flaws in the technical implementation of the Protect America Act which they said created serious security risks, including the danger that such a surveillance system could be exploited by unauthorized users, criminally misused by trusted insiders, or abused by the government.
On October 7, 2007, The Washington Post
reported that House Democrats planned to introduce alternative legislation which would provide for one-year "umbrella" warrants, and would require the Justice Department inspector general to audit the use of those warrants and issue quarterly reports to a special FISA court and to Congress. The proposed bill would not include immunity for telecommunications firms facing lawsuits in connection with the administration's NSA warrantless surveillance program. House Democrats said that as long as the administration withholds requested documents explaining the basis for the program that they cannot consider immunity for firms alleged to have facilitated it.
On October 10, 2007 comments on the White House South Lawn, President Bush said he would not sign any bill that did not provide retroactive immunity for telecommunications corporations.
On October 18, 2007, the House Democratic leadership put off a vote on the proposed legislation by the full chamber to avoid consideration of a Republican measure that made specific references to Osama bin Laden
. At the same time, the Senate Intelligence Committee reportedly reached a compromise with the White House on a different proposal that would give telephone carriers legal immunity for any role they played in the National Security Agency’s domestic eavesdropping program approved by President Bush after the Sept. 11 terrorist attacks.
On November 15, 2007, the Senate Judiciary Committee voted 10-9 along party lines to send an alternative measure to the full Senate other than the one the intelligence committee had crafted with the White House. The proposal would leave to the full Senate whether or not to provide retroactive immunity to telecommunications firms that cooperated with the NSA. Judiciary Committee chairman Patrick Leahy
said that granting such immunity would give the Bush administration a "blank check" to do what it wants without regard to the law. Arlen Specter
of Pennsylvania, the top Republican on the committee, said that court cases may be the only way Congress can learn exactly how far outside the law the administration has gone in eavesdropping in the United States. When the full Senate takes up the bill, Specter is expected to offer a compromise that would shield the companies from financial ruin but allow lawsuits to go forward by having the federal government stand in for the companies at trial.
On the same day, the House of Representatives voted 227-189 to approve a Democratic bill that would expand court oversight of government surveillance inside the United States while denying immunity to telecom companies. House Judiciary Committee chairman John Conyers
left the door open to an immunity deal in the future, but said that the White House must first give Congress access to classified documents specifying what the companies did that requires legal immunity.
In February 2008, the Senate passed the version of the new FISA
that would allow telecom companies immunity. On March 13, 2008, the U.S. House of Representatives held a secret session to discuss related information. On March 14, the House voted 213-197 to approve a bill that would not grant telecom immunity — far short of the 2/3 majority required to override a Presidential veto. The Senate and House bills are compared and contrasted in a June 12, 2008 report from the Congressional Research Service
.
On the evening of November 11, 2008, the House of Representatives held a secret, closed door meeting to debate changes to the FISA bill. http://www.youtube.com/watch?v=Z3Ixpapbd7M
Act of Congress
An Act of Congress is a statute enacted by government with a legislature named "Congress," such as the United States Congress or the Congress of the Philippines....
, (signed by President Jimmy Carter
Jimmy Carter
James Earl "Jimmy" Carter, Jr. is an American politician who served as the 39th President of the United States and was the recipient of the 2002 Nobel Peace Prize, the only U.S. President to have received the Prize after leaving office...
), which prescribes procedures for the physical and electronic surveillance
Surveillance
Surveillance is the monitoring of the behavior, activities, or other changing information, usually of people. It is sometimes done in a surreptitious manner...
and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" (which may include American citizens and permanent residents suspected of being engaged in espionage and violating U.S. law on territory under United States control). The law, of course, does not apply outside the US.
Subsequent amendments
The Act was amended in 2001 by the USA PATRIOT ActUSA PATRIOT Act
The USA PATRIOT Act is an Act of the U.S. Congress that was signed into law by President George W. Bush on October 26, 2001...
, primarily to include terrorism on behalf of groups that are not specifically backed by a foreign government.
An overhaul of the bill, the Protect America Act of 2007
Protect America Act of 2007
The Protect America Act of 2007 , , is a controversial amendment to the Foreign Intelligence Surveillance Act that was signed into law on August 5, 2007. It removed the warrant requirement for government surveillance of foreign intelligence targets "reasonably believed" to be outside of the...
was signed into law on August 5, 2007. It expired on February 17, 2008.
The FISA Amendments Act of 2008
FISA Amendments Act of 2008
The FISA Amendments Act of 2008 is an Act of Congress that amended the Foreign Intelligence Surveillance Act.-Background:...
passed by the United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
on July 9, 2008.
History
The Foreign Intelligence Surveillance Act (FISA) was introduced on May 18, 1977 by Senator Ted KennedyTed Kennedy
Edward Moore "Ted" Kennedy was a United States Senator from Massachusetts and a member of the Democratic Party. Serving almost 47 years, he was the second most senior member of the Senate when he died and is the fourth-longest-serving senator in United States history...
. The bill was cosponsored by the nine Senators: Birch Bayh
Birch Bayh
Birch Evans Bayh II is a former United States Senator from Indiana, having served from 1963 to 1981. He was a candidate for the Democratic nomination for president in the 1976 election, but lost to Jimmy Carter. He is the father of former Indiana Governor and former U.S. Senator Evan Bayh.-Life...
, James O. Eastland, Jake Garn
Jake Garn
Edwin Jacob "Jake" Garn is an American politician, a member of the Republican Party, and served as a U.S. Senator representing Utah from 1974 to 1993...
, Walter Huddleston
Walter Huddleston
Walter Darlington "Dee" Huddleston is a retired American politician. He is a Democrat from the state of Kentucky. He represented Kentucky in the United States Senate from 1973 until 1985....
, Daniel Inouye
Daniel Inouye
Daniel Ken "Dan" Inouye is the senior United States Senator from Hawaii, a member of the Democratic Party, and the President pro tempore of the United States Senate making him the highest-ranking Asian American politician in American history. Inouye is the chairman of the United States Senate...
, Charles Mathias, John L. McClellan, Gaylord Nelson
Gaylord Nelson
Gaylord Anton Nelson was an American politician from Wisconsin who served as a United States Senator and governor. A Democrat, he was the principal founder of Earth Day.-Public service and leadership:...
, and Strom Thurmond
Strom Thurmond
James Strom Thurmond was an American politician who served as a United States Senator. He also ran for the Presidency of the United States in 1948 as the segregationist States Rights Democratic Party candidate, receiving 2.4% of the popular vote and 39 electoral votes...
.
The act was signed into law by President Carter in 1978.
The Foreign Intelligence Surveillance Act resulted from extensive investigations by Senate Committees into the legality of domestic intelligence
Intelligence (information gathering)
Intelligence assessment is the development of forecasts of behaviour or recommended courses of action to the leadership of an organization, based on a wide range of available information sources both overt and covert. Assessments are developed in response to requirements declared by the leadership...
activities. These investigations were led separately by Sam Ervin
Sam Ervin
Samuel James "Sam" Ervin Jr. was a Democratic Senator from North Carolina from 1954 until 1974. A native of Morganton, Burke County, North Carolina, he liked to call himself a "country lawyer", and often told humorous stories in his Southern drawl...
and Frank Church
Frank Church
Frank Forrester Church III was an American lawyer and politician. A member of the Democratic Party, he served as a United States Senator from Idaho from 1957 to 1981....
in 1978 as a response to President Richard Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...
’s usage of federal resources to spy on political and activist groups, which violates the Fourth Amendment to the U.S. Constitution. The act was created to provide Judicial and congressional oversight of the government's covert surveillance activities of foreign entities and individuals in the United States, while maintaining the secrecy needed to protect national security. It allowed surveillance, without court order
Court order
A court order is an official proclamation by a judge that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out of certain steps by one or more parties to a case...
, within the United States for up to one year unless the "surveillance will acquire the contents of any communication to which a United States person is a party". If a United States person is involved, judicial authorization was required within 72 hours after surveillance begins.
Bush administration warrantless domestic wiretapping program
The Act came into public prominence in December 2005 following publication by the New York Times of an article that described a program of warrantless domestic wiretappingNSA warrantless surveillance controversy
The NSA warrantless surveillance controversy concerns surveillance of persons within the United States during the collection of foreign intelligence by the U.S. National Security Agency as part of the war on terror...
ordered by the Bush administration and carried out by the National Security Agency
National Security Agency
The National Security Agency/Central Security Service is a cryptologic intelligence agency of the United States Department of Defense responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S...
since 2002 (a subsequent Bloomberg
Bloomberg L.P.
Bloomberg L.P. is an American privately held financial software, media, and data company. Bloomberg makes up one third of the $16 billion global financial data market with estimated revenue of $6.9 billion. Bloomberg L.P...
article suggested that this may have already begun by June 2000).
Scope and limits
For most purposes, including electronic surveillance and physical searches, "foreign powers" means a foreign governmentGovernment
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
, any faction(s) or foreign governments not substantially composed of US persons, and any entity directed or controlled by a foreign government. §§1801(a)(1)-(3) The definition also includes groups engaged in international terrorism and foreign political organizations. §§1801(a)(4) and (5). The sections of FISA authorizing electronic surveillance and physical searches without a court order specifically exclude their application to groups engaged in international terrorism. See §1802(a)(1) (referring specifically to §1801(a)(1), (2) and (3)).
The statute includes limits on how it may be applied to US persons. A "US person" includes citizens, lawfully admitted permanent resident aliens, and corporation
Corporation
A corporation is created under the laws of a state as a separate legal entity that has privileges and liabilities that are distinct from those of its members. There are many different forms of corporations, most of which are used to conduct business. Early corporations were established by charter...
s incorporated in the US.
The code defines "foreign intelligence information" to mean information necessary to protect the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
against actual or potential grave attack, sabotage
Sabotage
Sabotage is a deliberate action aimed at weakening another entity through subversion, obstruction, disruption, or destruction. In a workplace setting, sabotage is the conscious withdrawal of efficiency generally directed at causing some change in workplace conditions. One who engages in sabotage is...
or international terrorism.
In sum, a significant purpose of the electronic surveillance must be to obtain intelligence in the U.S. on foreign powers (such as enemy agents or spies) or individuals connected to international terrorist groups. To use FISA, the government must show probable cause that the “target of the surveillance is a foreign power or agent of a foreign power.”http://belfercenter.ksg.harvard.edu/files/IC-book-finalasof12JUNE.pdf
Provisions
The subchapters of FISA provide for:- Electronic Surveillance
- Physical SearchesSearch and seizureSearch and seizure is a legal procedure used in many civil law and common law legal systems whereby police or other authorities and their agents, who suspect that a crime has been committed, do a search of a person's property and confiscate any relevant evidence to the crime.Some countries have...
- Pen RegistersPen registerA pen register is an electronic device that records all numbers called from a particular telephone line. The term has come to include any device or program that performs similar functions to an original pen register, including programs monitoring Internet communications.The United States statutes...
and Trap & Trace Devices for Foreign Intelligence Purposes - Access to certain Business Records for Foreign Intelligence Purposes
- Reporting Requirement
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. This number has steadily grown to 2224 warrants in 2006.
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.
Electronic surveillance
Generally, the statute permits electronic surveillance in two scenarios.Without a court order
The PresidentPresident
A president is a leader of an organization, company, trade union, university, or country.Etymologically, a president is one who presides, who sits in leadership...
may authorize, through the Attorney General
Attorney General
In most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may also have executive responsibility for law enforcement or responsibility for public prosecutions.The term is used to refer to any person...
, electronic surveillance without a court order for the period of one year provided it is only for foreign intelligence information; targeting foreign powers as defined by (a)(1),(2),(3) or their agents; and there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person
United States person
The term United States person or U.S. person is used in the context of data collection and intelligence by the United States, particularly with respect to the provisions of the Foreign Intelligence Surveillance Act. If information from, about, or to a U.S. person who is not a named terrorist is...
is a party.
The Attorney General is required to make a certification of these conditions under seal to the Foreign Intelligence Surveillance Court, and report on their compliance to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence.
Since 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. Under the FISA act, anyone who engages in electronic surveillance except as authorized by statute is subject to both criminal penalties and civil liabilities.
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."
With a court order
Alternatively, the government may seek a court order permitting the surveillance using the FISA court. Approval of a FISA application requires the court find probable causeProbable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
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 US persons.
Physical searches
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
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.Federal Bureau of Investigation
The Federal Bureau of Investigation is an agency of the United States Department of Justice that serves as both a federal criminal investigative body and an internal intelligence agency . The FBI has investigative jurisdiction over violations of more than 200 categories of federal crime...
) against suspected foreign intelligence agents
Secret Agent
Secret Agent is a British film directed by Alfred Hitchcock, loosely based on two stories in Ashenden: Or the British Agent by W. Somerset Maugham. The film starred John Gielgud, Peter Lorre, Madeleine Carroll, and Robert Young...
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
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
to serve seven year terms.
Proceedings before the FISA court are ex parte
Ex parte
Ex parte is a Latin legal term meaning "from one party" .An ex parte decision is one decided by a judge without requiring all of the parties to the controversy to be present. In Australian, Canadian, U.K., Indian and U.S...
and non-adversarial. The court hears evidence presented solely by the Department of Justice
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
. There is no provision for a release of information regarding such hearings, or for the record of information actually collected.
Denials of FISA applications by the FISC may be appealed to the Foreign Intelligence Surveillance Court of Review
United States Foreign Intelligence Surveillance Court of Review
The United States Foreign Intelligence Surveillance Court of Review is a U.S. federal court authorized under and established by the Foreign Intelligence Surveillance Act of 1978...
. The Court of Review is a three judge panel. Since its creation, the court has only come into session once in 2002.
Remedies for violations
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
Color (law)
In U.S. law, the term color of denotes the “mere semblance of legal right”, the “pretense or appearance of” right; hence, an action done under color of law colors the law to the circumstance, yet said apparently legal action contravenes the law....
of law or through disclosing information known to have been obtained through unauthorized surveillance. The penalties for either act are fines up to $
United States dollar
The United States dollar , also referred to as the American dollar, is the official currency of the United States of America. It is divided into 100 smaller units called cents or pennies....
10,000, up to five years in jail, or both.
In addition, the statute creates a cause of action
Cause of action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...
for private individuals whose communications were unlawfully monitored. The statute permits actual damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
of not less than $1,000 or $100 per day. In addition, that statute authorizes punitive damages
Punitive damages
Punitive damages or exemplary damages are damages intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit...
and an award of attorney's fees.
Similar liability is found under the subchapter pertaining to physical searches.
In both cases, the statute creates an affirmative defense
Affirmative defense
A defendant offers an affirmative defense when responding to a plaintiff's claim in common law jurisdictions, or, more familiarly, in criminal law. Essentially, the defendant affirms that the condition is occurring or has occurred but offers a defense that bars, or prevents, the plaintiff's claim. ...
for a law enforcement agent 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
In 2004, FISA was amended to include a "lone wolf" provision. . A "lone wolf" is a non-US 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.Before FISA
In 1967, the Supreme Court of the United StatesSupreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
held that the requirements of the Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
applied equally to electronic surveillance and to physical searches. Katz v. United States
Katz v. United States
Katz v. United States, , is a United States Supreme Court case discussing the nature of the "right to privacy" and the legal definition of a "search." The Court’s ruling adjusted previous interpretations of the unreasonable search and seizure clause of the Fourth Amendment to count immaterial...
, 389 U.S. 347 (1967). The Court did not address whether such requirements apply to issues of national security
National security
National security is the requirement to maintain the survival of the state through the use of economic, diplomacy, power projection and political power. The concept developed mostly in the United States of America after World War II...
. Shortly after, in 1972, the Court took up the issue again in United States v. United States District Court, Plamondon
United States v. U.S. District Court
United States v. U.S. District Court, 407 U.S. 297 , also known as the Keith case, was a landmark United States Supreme Court decision that upheld, in a unanimous 8-0 ruling, the requirements of the Fourth Amendment in cases of domestic surveillance targeting a domestic threat.-The case:The United...
, where the court held that court approval was required in order for the domestic surveillance to satisfy the Fourth Amendment. 407 U.S. 297 (1972). Justice Powell
Lewis Franklin Powell, Jr.
Lewis Franklin Powell, Jr. was an Associate Justice of the Supreme Court of the United States. He developed a reputation as a judicial moderate, and was known as a master of compromise and consensus-building. He was also widely well regarded by contemporaries due to his personal good manners and...
wrote that the decision did not address this issue that "may be involved with respect to activities of foreign powers or their agents."
In the time immediately preceding FISA, a number of courts squarely addressed the issue of "warrantless wiretaps". In both United States v. Brown, 484 F.2d 418 (5th Cir. 1973), and United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), the courts upheld warrantless wiretaps. In Brown, a US citizen's conversation was captured by a wiretap authorized by the Attorney General for foreign intelligence purposes. In Butenko, the court held a wiretap valid if the primary purpose was for gathering foreign intelligence information.
A plurality opinion in Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975), held that a warrant was required for the domestic surveillance of a domestic organization. In this case, the court found that the domestic organization was not a "foreign power or their agent", and "absent exigent circumstances, all warrantless electronic surveillance is unreasonable and therefore unconstitutional."
Post FISA
There have been very few cases involving the constitutionality of FISA. In two lower court decisions, the courts found FISA constitutional.In the United States v. Duggan, the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
s were members of the Irish Republican Army
Irish Republican Army
The Irish Republican Army was an Irish republican revolutionary military organisation. It was descended from the Irish Volunteers, an organisation established on 25 November 1913 that staged the Easter Rising in April 1916...
. 743 F.2d 59 (2nd Cir., 1984). They were convicted for various violations regarding the shipment of explosives and firearm
Firearm
A firearm is a weapon that launches one, or many, projectile at high velocity through confined burning of a propellant. This subsonic burning process is technically known as deflagration, as opposed to supersonic combustion known as a detonation. In older firearms, the propellant was typically...
s. The court held that there were compelling considerations of national security in the distinction between the treatment of U.S. citizens and non-resident aliens.
In the United States v. Nicholson, the defendant moved to suppress all evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
gathered under a FISA order. 955 F.Supp. 588 (Va. 1997). The court affirmed the denial of the motion. There the court flatly rejected claims that FISA violated Due process clause of the Fifth Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
, Equal protection, Separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
, nor the Right to counsel
Right to counsel
Right to counsel is currently generally regarded as a constituent of the right to a fair trial, allowing for the defendant to be assisted by counsel , and if he cannot afford his own lawyer, requiring that the government should appoint one for him/her, or pay his/her legal expenses...
provided by the Sixth Amendment
Sixth Amendment to the United States Constitution
The Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions...
.
However, in a third case, the special review court for FISA, the equivalent of a Circuit Court Of Appeals, opined differently should FISA limit the President's inherent authority for warrantless searches in the foreign intelligence area. In In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002) the special court stated “[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information . . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”
Criticisms
K. A. Taipale of the World Policy InstituteWorld Policy Institute
The World Policy Institute, a non-partisan policy institute which claims to develop policies that require a progressive ideology. WPI focuses on cooperative policies in order to achieve : an inclusive and sustainable global market economy, engaged global civic participation and effective...
, James Jay Carafano of the Heritage Foundation
Heritage Foundation
The Heritage Foundation is a conservative American think tank based in Washington, D.C. Heritage's stated mission is to "formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong...
, and Philip Bobbitt of Columbia Law School, among others, have argued that FISA may need to be amended (to include, among other things, procedures for programmatic approvals) as it may no longer be adequate to address certain foreign intelligence needs and technology developments, including: the transition from circuit-based communications to packet-based
Packet switching
Packet switching is a digital networking communications method that groups all transmitted data – regardless of content, type, or structure – into suitably sized blocks, called packets. Packet switching features delivery of variable-bit-rate data streams over a shared network...
communications; the globalization
Globalization
Globalization refers to the increasingly global relationships of culture, people and economic activity. Most often, it refers to economics: the global distribution of the production of goods and services, through reduction of barriers to international trade such as tariffs, export fees, and import...
of communications
Telecommunication
Telecommunication is the transmission of information over significant distances to communicate. In earlier times, telecommunications involved the use of visual signals, such as beacons, smoke signals, semaphore telegraphs, signal flags, and optical heliographs, or audio messages via coded...
infrastructure; and the development of automated monitoring techniques, including data mining
Data mining
Data mining , a relatively young and interdisciplinary field of computer science is the process of discovering new patterns from large data sets involving methods at the intersection of artificial intelligence, machine learning, statistics and database systems...
and traffic analysis
Traffic analysis
Traffic analysis is the process of intercepting and examining messages in order to deduce information from patterns in communication. It can be performed even when the messages are encrypted and cannot be decrypted. In general, the greater the number of messages observed, or even intercepted and...
.
The need for programmatic approval of technology-enabled surveillance programs is particularly crucial in foreign intelligence. See, for example, John R. Schmidt, the associate attorney general (1994–1997) in the Justice Department under President Bill Clinton, recalling early arguments made by then-Attorney General Edward Levi to the Church Committee
Church Committee
The Church Committee is the common term referring to the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, a U.S. Senate committee chaired by Senator Frank Church in 1975. A precursor to the U.S...
that foreign intelligence surveillance legislation should include provisions for programmatically authorizing surveillance programs because of the particular needs of foreign intelligence where "virtually continuous surveillance, which by its nature does not have specifically predetermined targets" may be required. In these situations, "the efficiency of a warrant requirement would be minimal."
And, in a recent essay, Judge Richard A. Posner opined that FISA “retains value as a framework for monitoring the communications of known terrorists, but it is hopeless as a framework for detecting terrorists. [FISA] requires that surveillance be conducted pursuant to warrants based on probable cause to believe that the target of surveillance is a terrorist, when the desperate need is to find out who is a terrorist.”
Terrorist Surveillance Act of 2006
On March 16, 2006, Senators Mike DeWineMike DeWine
Richard Michael "Mike" DeWine is the Attorney General for the state of Ohio. He has held numerous offices on the state and federal level, including Ohio State Senator, four terms as a U.S. Congressman, Ohio Lt. Governor, and was a two-term U.S. Senator, serving from 1995 to 2007.- Biography :Born...
(R-OH), Lindsey Graham
Lindsey Graham
Lindsey Olin Graham is the senior U.S. Senator from South Carolina and a member of the Republican Party. Previously he served as the U.S. Representative for .-Early life, education and career:...
(R-SC), Chuck Hagel
Chuck Hagel
Charles Timothy "Chuck" Hagel is a former United States Senator from Nebraska. A member of the Republican Party, he was first elected in 1996 and was reelected in 2002...
(R-NE), and Olympia Snowe
Olympia Snowe
Olympia Jean Snowe , née Bouchles, is the senior United States Senator from Maine and a member of the Republican Party. Snowe has become widely known for her ability to influence the outcome of close votes, including whether to end filibusters. She and her fellow Senator from Maine, Susan Collins,...
(R-ME) introduced the Terrorist Surveillance Act of 2006 (S.2455), under which the President would be given certain additional limited statutory authority to conduct electronic surveillance of suspected terrorists in the United States subject to enhanced Congressional oversight. Also on March 16, 2006, Senator Arlen Specter
Arlen Specter
Arlen Specter is a former United States Senator from Pennsylvania. Specter is a Democrat, but was a Republican from 1965 until switching to the Democratic Party in 2009...
(R-PA) introduced the National Security Surveillance Act of 2006 , which would amend FISA to grant retroactive amnesty for warrantless surveillance conducted under presidential authority and provide FISA court (FISC) jurisdiction to review, authorize, and oversight "electronic surveillance programs." On May 24, 2006, Senator Specter and Senator Dianne Feinstein
Dianne Feinstein
Dianne Goldman Berman Feinstein is the senior U.S. Senator from California. A member of the Democratic Party, she has served in the Senate since 1992. She also served as 38th Mayor of San Francisco from 1978 to 1988....
(D-CA) introduced the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006 asserting FISA as the exclusive means to conduct foreign intelligence surveillance.
All three competing bills were the subject of Judiciary Committee hearings throughout the summer. On September 13, 2006, the Senate Judiciary Committee voted to approve all three mutually exclusive bills, thus, leaving it to the full Senate to resolve.
On July 18, 2006, U.S. Representative Heather Wilson
Heather Wilson
Heather A. Wilson , is a former Republican member of the United States House of Representatives representing from 1998 to 2009...
(R-NM) introduced the Electronic Surveillance Modernization Act
Electronic Surveillance Modernization Act
The Electronic Surveillance Modernization Act The Electronic Surveillance Modernization Act The Electronic Surveillance Modernization Act (The Electronic Surveillance Modernization Act (The Electronic Surveillance Modernization Act (( of the 109th Congress was passed on September 28, 2006 by a vote...
. Wilson's bill would give the President the authority to authorize electronic surveillance of international phone calls and e-mail linked specifically to identified terrorist groups immediately following or in anticipation of an armed or terrorist attack on the United States. Surveillance beyond the initial authorized period would require a FISA warrant or a presidential certification to Congress. On September 28, 2006 the House of Representatives passed Wilson's bill and it was referred to the Senate.
Protect America Act of 2007
On July 28, 2007, President Bush called on Congress to pass legislation to reform the FISA in order to ease restrictions on surveillance of terrorist suspects where one party (or both parties) to the communication are located overseas. He asked that Congress pass the legislation before its August 2007 recess. On August 3, 2007, the Senate passed a Republican-sponsored version of FISA (S. 1927) in a vote of 60 to 28. The House followed by passing the bill, 227–183. The Protect America Act of 2007Protect America Act of 2007
The Protect America Act of 2007 , , is a controversial amendment to the Foreign Intelligence Surveillance Act that was signed into law on August 5, 2007. It removed the warrant requirement for government surveillance of foreign intelligence targets "reasonably believed" to be outside of the...
was then signed into law by George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
on 2007-08-05.
Under the Protect America Act of 2007, communications that begin or end in a foreign country may be wiretapped by the US government without supervision by the FISA Court. The Act removes from the definition of "electronic surveillance" in FISA any surveillance directed at a person reasonably believed to be located outside the United States. As such, surveillance of these communications no longer requires a government application to, and order issuing from, the FISA Court.
The Act provides procedures for the government to "certify" the legality of an acquisition program, for the government to issue directives to providers to provide data or assistance under a particular program, and for the government and recipient of a directive to seek from the FISA Court, respectively, an order to compel provider compliance or relief from an unlawful directive. Providers receive costs and full immunity from civil suits for compliance with any directives issued pursuant to the Act.
A summary of key provisions follows.
The Act empowers the Attorney General or Director of National Intelligence ("DNI") to authorize, for up to one year, the acquisition of communications concerning "persons reasonably believed to be outside the United States" if the Attorney General and DNI determine that each of five criteria has been met:
- there are reasonable procedures in place for determining that the acquisition concerns persons reasonably believed to be located outside the United States;
- the acquisition does not constitute electronic surveillance (meaning it does not involve solely domestic communications);
- the acquisition involves obtaining the communications data from or with the assistance of a communications service provider who has access to communications;
- a significant purpose of the acquisition is to obtain foreign intelligence information; and
- minimization procedures outlined in the FISA will be used.
This determination by the Attorney General and DNI must be certified in writing, under oath, and supported by appropriate affidavit(s). If immediate action by the government is required and time does not permit the preparation of a certification, the Attorney General or DNI can direct the acquisition orally, with a certification to follow within 72 hours. The certification is then filed with the FISA Court.
Once the certification is filed with the FISA Court, the Attorney General or DNI can direct a provider to undertake or assist in the undertaking of the acquisition.
If a provider fails to comply with a directive issued by the Attorney General or DNI, the Attorney General may seek an order from the FISA Court compelling compliance with the directive. Failure to obey an order of the FISA Court may be punished as a contempt of court.
Likewise, a person receiving a directive may challenge the legality of that directive by filing a petition with the FISA Court. An initial review must be conducted within 48 hours of the filing to determine whether the petition is frivolous, and a final determination concerning any non-frivolous petitions must be made – in writing – within 72 hours of receipt of the petition.
Determinations of the FISA Court may be appealed to the Foreign Intelligence Court of Appeals, and a petition for a writ of certiorari of a decision from the FICA can be made to the U.S. Supreme Court.
All petitions must be filed under seal.
The Act allows providers to be compensated, at the prevailing rate, for providing assistance as directed by the Attorney General or DNI.
The Act provides explicit immunity from civil suit in any federal or state court for providing any information, facilities, or assistance in accordance with a directive under the Act.
Within 120 days, the Attorney General must submit to the FISA Court for its approval the procedures by which the government will determine that acquisitions authorized by the Act conform with the Act and do not involve purely domestic communications. The FISA Court then will determine whether the procedures comply with the Act. The FISA Court thereafter will enter an order either approving the procedures or directing the government to submit new procedures within 30 days or cease any acquisitions under the government procedures. The government may appeal a ruling of the FISA Court to the FICA and ultimately the Supreme Court.
On a semiannual basis, the Attorney General shall inform the Intelligence and Judiciary Committees of the House and Senate of incidents of noncompliance with a directive issued by the Attorney General or the DNI, incidents of noncompliance with FISA Court-approved procedures by the Intelligence Community, and the number of certifications and directives issued during the reporting period.
The amendments to FISA made by the Act expire 180 days after enactment, except that any order in effect on the date of enactment remains in effect until the date of expiration of such order and such orders can be reauthorized by the FISA Court.” The Act expired on February 17, 2008.
Subsequent developments
Legal experts experienced in national security issues are divided on how broadly the new law could be interpreted or applied. Some believe that due to subtle changes in the definitions of terms such as "electronic surveillance," it could empower the government to conduct warrantless physical searches and even seizures of communications and computer devices and their data which belong to U.S. citizens while they are in the United States, if the government contended that those searches and potential seizures were related to its surveillance of parties outside the United States. Intelligence officials, while declining to comment directly on such possibilities, respond that such interpretations are overly broad readings of the act, and unlikely to actually occur. Democratic lawmakers have nonetheless indicated that they are planning to introduce a revised version of the legislation for consideration as early as September 2007.In a September 10, 2007 address at a symposium on modernizing FISA held at Georgetown University Law Center
Georgetown University Law Center
Georgetown University Law Center is the law school of Georgetown University, located in Washington, D.C.. Established in 1870, the Law Center offers J.D., LL.M., and S.J.D. degrees in law...
's National Security Center, Kenneth L. Wainstein, Assistant Attorney General for National Security, argued against the current six-month sunset provision
Sunset provision
In public policy, a sunset provision or clause is a measure within a statute, regulation or other law that provides that the law shall cease to have effect after a specific date, unless further legislative action is taken to extend the law...
in the Protect America Act of 2007, saying that the broadened surveillance powers the act provides for should be made permanent. Wainstein proposed that internal audits by the Office of the Director of National Intelligence and the National Security Division of the Justice Department
United States Department of Justice National Security Division
The United States Department of Justice National Security Division is the division of the DOJ that handles all national security functions of the Department. Created by the 2005 USA PATRIOT Act reauthorization, the Division consolidated all of the Department's national security and intelligence...
, with reporting to select groups of Congressmen, would ensure that the expanded capability would not be abused.
Also on September 10, DNI Mike McConnell testified before the Senate Committee on Homeland Security and Governmental Affairs that the Protect America Act had helped foil a major terror plot in Germany. U.S. intelligence-community officials questioned the accuracy of McConnell's testimony and urged his office to correct it, which he did in a statement issued September 12, 2007. Critics cited the incident as an example of the Bush administration's exaggerated claims and contradictory statements about surveillance activities. Counterterrorism officials familiar with the background of McConnell's testimony said they did not believe he made inaccurate statements intentionally as part of any strategy by the administration to persuade Congress to make the new eavesdropping law permanent. Those officials said they believed McConnell gave the wrong answer because he was overwhelmed with information and merely mixed up his facts.
Speaking at National Security Agency
National Security Agency
The National Security Agency/Central Security Service is a cryptologic intelligence agency of the United States Department of Defense responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S...
headquarters in Fort Meade, Maryland on September 19, 2007, President George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
urged Congress to make the provisions of the Protect America Act permanent. Bush also called for retroactive immunity for telecommunications companies who had cooperated with government surveillance efforts, saying, "It's particularly important for Congress to provide meaningful liability protection to those companies now facing multibillion-dollar lawsuits only because they are believed to have assisted in efforts to defend our nation, following the 9/11 attacks."
On October 4, 2007, the bipartisan Liberty and Security Committee of the Constitution Project
Constitution Project
The Constitution Project is an non-profit think tank in the United States that builds bipartisan consensus on significant constitutional and legal questions. Founded and led by Virginia Sloan, the Constitution Project’s work is divided between two programs: the Rule of Law Program and the Criminal...
, co-chaired by David Keene
David Keene
David A. Keene , President of the National Rifle Association as of May 2, 2011, was the chairman of the American Conservative Union, from 1984 to 2011. Additionally, he is the managing associate at the Carmen Group Lobbying, a lobbying firm based in Washington, D.C...
and David D. Cole
David D. Cole
David D. Cole is an American law professor at the Georgetown University Law Center. He has published in various legal fields including civil rights, criminal justice, constitutional law and law and literature...
, issued its "Statement on the Protect America Act." http://www.constitutionproject.org/pdf/Statement%20on%20PAA1.pdf The Statement urged Congress not to reauthorize the PAA, saying the language of the bill "runs contrary to the tripartite balance of power the Framers envisioned for our constitutional democracy, and poses a serious threat to the very notion of government of the people, by the people and for the people." Some in the legal community have questioned the constitutionality of any legislation that would retroactively immunize telecommunications firms alleged to have cooperated with the government from civil liability for having potentially violated their customers' privacy rights.
In an article appearing in the January/February 2008 issue of the Institute of Electrical and Electronics Engineers
Institute of Electrical and Electronics Engineers
The Institute of Electrical and Electronics Engineers is a non-profit professional association headquartered in New York City that is dedicated to advancing technological innovation and excellence...
journal of Security and Privacy, noted technology experts from academia and the computing industry found significant flaws in the technical implementation of the Protect America Act which they said created serious security risks, including the danger that such a surveillance system could be exploited by unauthorized users, criminally misused by trusted insiders, or abused by the government.
On October 7, 2007, The Washington Post
The Washington Post
The Washington Post is Washington, D.C.'s largest newspaper and its oldest still-existing paper, founded in 1877. Located in the capital of the United States, The Post has a particular emphasis on national politics. D.C., Maryland, and Virginia editions are printed for daily circulation...
reported that House Democrats planned to introduce alternative legislation which would provide for one-year "umbrella" warrants, and would require the Justice Department inspector general to audit the use of those warrants and issue quarterly reports to a special FISA court and to Congress. The proposed bill would not include immunity for telecommunications firms facing lawsuits in connection with the administration's NSA warrantless surveillance program. House Democrats said that as long as the administration withholds requested documents explaining the basis for the program that they cannot consider immunity for firms alleged to have facilitated it.
On October 10, 2007 comments on the White House South Lawn, President Bush said he would not sign any bill that did not provide retroactive immunity for telecommunications corporations.
On October 18, 2007, the House Democratic leadership put off a vote on the proposed legislation by the full chamber to avoid consideration of a Republican measure that made specific references to Osama bin Laden
Osama bin Laden
Osama bin Mohammed bin Awad bin Laden was the founder of the militant Islamist organization Al-Qaeda, the jihadist organization responsible for the September 11 attacks on the United States and numerous other mass-casualty attacks against civilian and military targets...
. At the same time, the Senate Intelligence Committee reportedly reached a compromise with the White House on a different proposal that would give telephone carriers legal immunity for any role they played in the National Security Agency’s domestic eavesdropping program approved by President Bush after the Sept. 11 terrorist attacks.
On November 15, 2007, the Senate Judiciary Committee voted 10-9 along party lines to send an alternative measure to the full Senate other than the one the intelligence committee had crafted with the White House. The proposal would leave to the full Senate whether or not to provide retroactive immunity to telecommunications firms that cooperated with the NSA. Judiciary Committee chairman Patrick Leahy
Patrick Leahy
Patrick Joseph Leahy is the senior United States Senator from Vermont and member of the Democratic Party. He is the first and only elected Democratic United States Senator in Vermont's history. He is the chairman of the Senate Judiciary Committee. Leahy is the second most senior U.S. Senator,...
said that granting such immunity would give the Bush administration a "blank check" to do what it wants without regard to the law. Arlen Specter
Arlen Specter
Arlen Specter is a former United States Senator from Pennsylvania. Specter is a Democrat, but was a Republican from 1965 until switching to the Democratic Party in 2009...
of Pennsylvania, the top Republican on the committee, said that court cases may be the only way Congress can learn exactly how far outside the law the administration has gone in eavesdropping in the United States. When the full Senate takes up the bill, Specter is expected to offer a compromise that would shield the companies from financial ruin but allow lawsuits to go forward by having the federal government stand in for the companies at trial.
On the same day, the House of Representatives voted 227-189 to approve a Democratic bill that would expand court oversight of government surveillance inside the United States while denying immunity to telecom companies. House Judiciary Committee chairman John Conyers
John Conyers
John Conyers, Jr. is the U.S. Representative for , serving since 1965 . He is a member of the Democratic Party...
left the door open to an immunity deal in the future, but said that the White House must first give Congress access to classified documents specifying what the companies did that requires legal immunity.
In February 2008, the Senate passed the version of the new FISA
FISA Amendments Act of 2008
The FISA Amendments Act of 2008 is an Act of Congress that amended the Foreign Intelligence Surveillance Act.-Background:...
that would allow telecom companies immunity. On March 13, 2008, the U.S. House of Representatives held a secret session to discuss related information. On March 14, the House voted 213-197 to approve a bill that would not grant telecom immunity — far short of the 2/3 majority required to override a Presidential veto. The Senate and House bills are compared and contrasted in a June 12, 2008 report from the Congressional Research Service
Congressional Research Service
The Congressional Research Service , known as "Congress's think tank", is the public policy research arm of the United States Congress. As a legislative branch agency within the Library of Congress, CRS works exclusively and directly for Members of Congress, their Committees and staff on a...
.
On the evening of November 11, 2008, the House of Representatives held a secret, closed door meeting to debate changes to the FISA bill. http://www.youtube.com/watch?v=Z3Ixpapbd7M
See also
- Operation Minaret
- Project ShamrockProject SHAMROCKProject SHAMROCK, considered to be the sister project for Project MINARET, was an espionage exercise that involved the accumulation of all telegraphic data entering into or exiting from the United States...
- Watergate
- Church CommitteeChurch CommitteeThe Church Committee is the common term referring to the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, a U.S. Senate committee chaired by Senator Frank Church in 1975. A precursor to the U.S...
- United States v. United States District Court, PlamondonUnited States v. U.S. District CourtUnited States v. U.S. District Court, 407 U.S. 297 , also known as the Keith case, was a landmark United States Supreme Court decision that upheld, in a unanimous 8-0 ruling, the requirements of the Fourth Amendment in cases of domestic surveillance targeting a domestic threat.-The case:The United...
- United States Foreign Intelligence Surveillance CourtUnited States Foreign Intelligence Surveillance CourtThe United States Foreign Intelligence Surveillance Court is a U.S. federal court authorized under , . It was established by the Foreign Intelligence Surveillance Act of 1978 . The FISC oversees requests for surveillance warrants against suspected foreign intelligence agents inside the United...
- United States Foreign Intelligence Surveillance Court of ReviewUnited States Foreign Intelligence Surveillance Court of ReviewThe United States Foreign Intelligence Surveillance Court of Review is a U.S. federal court authorized under and established by the Foreign Intelligence Surveillance Act of 1978...
- United States Foreign Intelligence Surveillance Court of Review
- NSA warrantless surveillance controversyNSA warrantless surveillance controversyThe NSA warrantless surveillance controversy concerns surveillance of persons within the United States during the collection of foreign intelligence by the U.S. National Security Agency as part of the war on terror...
External links
- Freedom From Covert Harassment and Surveillance - For Victims Of FISA Abuse
- The Electronic Frontier Foundation's Foreign Intelligence Surveillance Act FAQ
- EPIC FISA page
- Foreign Intelligence Surveillance Act resources from the Federation of American Scientists
- The Foreign Intelligence Surveillance Act: A Brief Overview of Selected Issues, Congressional Research Service, February 8, 2008
- The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and Recent Judicial Decisions, Congressional Research Service, September 22, 2004
- NOW on PBS Uncovers Surveillance Details Through AT&T Whistleblower
- 2004 FISA Annual Report to Congress, via FAS
- FBI memo, "What do I have to do to get a FISA?
- "So Judge, How Do I Get That FISA Warrant?" The Policy and Procedure for Conducting Electronic Surveillance. The Army Lawyer, October 1997 - Jimmy Carter's Executive order to provide as set forth in FISA for the authorization of electronic surveillance for foreign intelligence purposes - Bill Clinton's Executive order to provide for the authorization of physical searches for foreign intelligence purposes
- David Alan Jordan, Decrypting the Fourth Amendment: Warrantless NSA Surveillance and the Enhanced Expectation of Privacy Provided by Encrypted Voice over Internet Protocol - Boston College Law Review, Vol. 47, 2006
- K. A. TaipaleK. A. TaipaleK. A. Taipale is a lawyer, scholar, and social theorist specializing in information, technology, and national security policy. He is a partner in Stilwell Holding, a private investment firm and in Parkview Ventures, a technology merchant bank...
, The Ear of Dionysus: Rethinking Foreign Intelligence Surveillance, 9 Yale J. L. & Tech. 128 (Spring 2007). - Plural Politics Protect American Act Plainspeak Legal Primer
- Guide to lawful intercept legislation around the world
- Prepared Remarks of Kenneth L. Wainstein, Assistant Attorney General for National Security at the Georgetown University Law Center's National Security Center Symposium on Foreign Intelligence Surveillance Act Modernization, September 10, 2007
- Department of Justice on FISA and the Protect America Act
- OpenCongress on S.2248 Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007
- Secret House meeting on FISA
- The Need to Roll Back Presidential Power Grabs, by Arlen SpecterArlen SpecterArlen Specter is a former United States Senator from Pennsylvania. Specter is a Democrat, but was a Republican from 1965 until switching to the Democratic Party in 2009...
, The New York Review of BooksThe New York Review of BooksThe New York Review of Books is a fortnightly magazine with articles on literature, culture and current affairs. Published in New York City, it takes as its point of departure that the discussion of important books is itself an indispensable literary activity...
, Volume 56, Number 8 · May 14, 2009