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C o g e s o a R e s a r c S e r v i c
S
Updated April 6, 2021
Foreign Intelligence Surveillance Act (FISA): An Overview
Introduction
Congress enacted the Foreign Intelligence Surveillance Act
(FISA) in 1978. FISA provides a statutory framework for
government agencies to obtain authorization to gather
foreign intelligence by means of (1) electronic surveillance,
(2) physical searches, (3) pen registers and trap and trace
(PR/TT) devices (which record or decode dialing, routing,
addressing, or signaling information), or (4) the production
of certain business records. Agencies typically request
authorization for such activities from the Foreign
Intelligence Surveillance Court (FISC), a specialized court
created by FISA to act as a neutral arbiter of agency
requests for FISA orders.
FISA's History
Following revelations regarding widespread privacy
violations by the federal government during the Watergate
era, Congress enacted FISA to establish guidelines for
government collection of foreign intelligence. FISA defines
[f]oreign intelligence information as information relating
to a foreign power or that generally concerns the ability of
the United States to protect against international terrorism
or a potential attack by a foreign power or agent of a
foreign power. Though Congress initially limited FISA to
regulating government use of electronic surveillance,
Congress subsequently amended FISA to regulate other
intelligence-gathering practices, such as physical searches,
the use of PR/TT devices, and compelling the production of
certain types of business records.
Shortly after the 9/11 terrorist attacks, Congress enacted the
USA PATRIOT Act (Patriot Act) to provid[e] enhanced
investigative tools to assist in the prevention of future
terrorist activities and the preliminary acts and crimes
which further such activities. In particular, Section 215 of
the Patriot Act enlarged the scope of FISA's business
records provision. Following revelations that the National
Security Agency was engaged in the bulk collection of
telephone metadata under Section 215 of the Patriot Act,
Congress enacted the USA FREEDOM Act, which
narrowed Section 215 and FISA's PR/TT authority, and
provided express authority for the FISC to appoint amici
curiae to supplement its normally ex parte proceedings.
Other major changes to FISA include the FISA
Amendments Act of 2008 (FAA), codified as Title VII of
FISA. These amendments established procedures governing
the targeting-for intelligence-gathering purposes-of non-
U.S. persons located abroad. They also established statutory
and procedural protections regarding surveillance of U.S.
persons located outside the United States. Congress last
reauthorized Title VII of FISA in early 2018. Title VII will
be up for reauthorization in 2023.
In 2020, three provisions of FISA commonly associated
with the Patriot Act lapsed. These provisions, which are
discussed in more detail below, are covered by a
grandfather provision which permits them to remain in
effect with respect to investigations that existed before the
sunset date.
Foreign Intelligence Surveillance Courts
FISA established two specialized foreign intelligence courts
to approve the use of FISA investigative authorities. The
FISC has original jurisdiction over FISA applications, while
the Foreign Intelligence Surveillance Court of Review
(FISCR) may hear appeals from the FISC. The FISC is
comprised of eleven federal judges, while the FISCR has
three, all designated by the Chief Justice of the U.S.
Supreme Court. While the FISC and FISCR normally hear
ex-parte submissions by the government, the courts also
have jurisdiction to hear challenges to FISA orders brought
by communications providers or other third parties.
Pursuant to the USA FREEDOM Act, the FISC and FISCR
have also designated seven individuals as eligible to serve
as amici curiae.
Electronic Surveillance and Physical Search Orders
Titles I and III of FISA provide a framework by which
government agencies may seek a FISA order from the FISC
authorizing electronic surveillance or physical searches for
the purposes of collecting foreign intelligence. Before
submitting an application for such an order to the FISC,
federal officials must first obtain approval from the
Attorney General, Acting Attorney General, Deputy
Attorney General, or if designated, the Assistant Attorney
General for National Security.
Applications for electronic surveillance or physical search
orders must include the following: (1) the applicant's
identity; (2) information regarding the target's identity if
known; (3) why the target may be searched or surveilled;
(4) a statement establishing a sufficient relationship
between the target and the search location; (5) a description
of what will be searched or surveilled; (6) a description of
the nature of the information sought or of the foreign
intelligence sought; (7) proposed minimization procedures;
(8) a discussion of how the search or surveillance will be
carried out; and (9) a discussion of prior applications. If
electronic surveillance is sought, applications must also
discuss the duration of the surveillance.
The government must also include in its applications
written certifications from specified executive branch
officials regarding the nature, purpose, and significance of
the information to be sought. For the FISC to issue a FISA
order, the government must show probable cause that the
target of the surveillance is a foreign power or an agent of a
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