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Order Code RS21472
March 25, 2003
CRS Report for Congress
Received through the CRS Web
Proposed Change to the Foreign Intelligence
Surveillance Act (FISA) under S. 113
Jennifer Elsea
Legislative Attorney
American Law Division
Summary
S. 113 is a bill in the 108'h Congress to extend the coverage of the Foreign
Intelligence Surveillance Act (FISA) to non-United States persons who engage in
international terrorism or activities in preparation for international terrorism, without a
showing of membership in or affiliation with an international terrorist group. FISA
provides a means by which the government can obtain approval to conduct electronic
surveillance (wiretap) and other searches with respect to a foreign power or its agents
in order to obtain intelligence related to espionage, terrorism, or other matters involving
national security.
The Foreign Intelligence Surveillance Act (FISA), P.L. 95-511, Title I, Oct. 25,
1978, 92 Stat. 1796, codified at 50 U.S.C. § 1801 et seq., provides a framework for the
use of electronic surveillance and other investigative methods to acquire foreign
intelligence information. This measure seeks to strike a balance between national security
needs in the context of foreign intelligence gathering and privacy rights guaranteed by the
Fourth Amendment of the Constitution.1 FISA provides a means by which the
government can obtain approval to conduct searches and surveillance of a foreign power
or its agents without first meeting the more stringent standard in Title III of the Omnibus
Crime Control and Safe Streets Act, 18 U.S.C. § 2510 et seq. [hereinafter Title HI] that
applies to criminal investigations. While Title Ill requires a showing of probable cause
that a proposed target has committed, is committing, or is about to commit a crime, FISA
requires a showing of probable cause to believe that the target is a foreign power or an
agent of a foreign power.
In the aftermath of the September 11, 2001 terrorist attacks on the United States,
Congress amended FISA so that it no longer requires a certification that the (primary)
1 U.S. CONST. Amend. IV provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be
seized.
Congressional Research Service **o The Library of Congress](ViewImageLocal?handle=hein.crs/crsuntaabcw0001&div=1&collection=&method=preview&ext=.png&size=3)