HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.
![handle is hein.crs/govcaos0001 and id is 1 raw text is:
FF. ' riES- - $rh ,i . ,
March 10, 2020
Foreign Intelligence Surveillance Act (FISA): An Overview
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
devices (which record or decode dialing, routing,
addressing, or signaling information), or (4) the production
of business records and other tangible things. 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.
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 pen registers and trap and trace 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. Section 215 of the Patriot
Act amended FISA to enlarge the scope of FISA's business
records provision. Section 206 of the act authorized the
government to seek roving wiretaps. And in 2004,
Congress amended FISA to simplify the evidentiary
showing necessary to obtain a FISA order to investigate
non-U.S. persons suspected of engaging in international
terrorism. All three provisions are temporary and have been
reauthorized several times. Most recently, in late 2019,
Congress extended all three provisions through March 15,
2020. Congress currently is considering whether to
reauthorize these provisions again. If they are allowed to
expire, grandfather clauses permit them to remain effective
with respect to investigations that began, or potential
offenses that took place, before the expiration date.
In the summer of 2013, news reports revealed that the
National Security Agency (NSA) was engaged in the bulk
collection of telephone metadata under Section 215 of the
Patriot Act. In 2015, Congress enacted the USA
FREEDOM Act, which circumscribed the government's
ability to obtain telephone records as part of its foreign
intelligence gathering operations.
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-
United States 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.
FISA Sections 1804, 1805, 1823, and 1824, otherwise
known as the traditional FISA provisions, provide a
framework by which government agencies must seek a
FISA order to engage in surveillance or conduct physical
searches for purposes of collecting foreign intelligence.
Under FISA, federal officials seeking an order from the
FISC must first obtain approval from the Attorney General,
Acting Attorney General, Deputy Attorney General, or if
designated, the Assistant Attorney General for National
Security. They must then submit an application to the FISC.
FISC applications must include the following: (1) the
applicant's identity if known; (2) information regarding the
target's identity; (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.
FISC applications must be accompanied by 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
foreign power, and that the target is using, or is about to
use, the facilities or places at which the search or
surveillance is directed.
Section 206 of the Patriot Act amended FISA to permit
multipoint, or roving, wiretaps by adding flexibility to the
.O 'T
p\w -- , gn'a', goo
mppm qq\
a , q
's I
11LULANJILiN,](ViewImageLocal?handle=hein.crs/govcaos0001&div=1&collection=&method=preview&ext=.png&size=3)