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Foreign Intelligence Surveillance Act (FISA)
ntroduction
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. This In Focus describes FISA
and potential issues for Congress.
FI SA's Origin
Following revelations regarding widespread privacy
violations by the federal government during the Watergate
era, Congress enacted FISA to govern foreign intelligence
information collection. FISA currently defines foreign
intelligence information as information relating to a foreign
power or that generally concerns the ability of the United
States to protect against international terrorism, potential
attacks by foreign powers or agents of foreign powers, or
international drug trafficking. Though Congress initially
limited FISA to regulating government use of electronic
surveillance, Congress has amended FISA to regulate other
intelligence-gathering practices, such as physical searches,
the use of PR/TT devices, and compelled production of
certain types of business records.
Foreign nteigence Surveiance Courts
FISA established two specialized foreign intelligence courts
to approve the use of FISA investigative authorities. The
Foreign Intelligence Surveillance Court (FISC) has original
jurisdiction over FISA applications, while the Foreign
Intelligence Surveillance Court of Review (FISCR) hears
appeals from the FISC. The FISC is composed of 11 federal
judges, while the FISCR has three, all designated by the
Chief Justice of the United States. The FISC and FISCR
normally hear ex parte submissions by the government, but
they also hear challenges to FISA orders brought by
communications providers or other third parties.
The FISC and FISCR must designate at least five
individuals as eligible to serve as amici curiae (essentially,
independent advisors to the court). These courts may
appoint one or more amici curiae when they deem this
appropriate. These courts must appoint one or more amici
curiae when a case presents a novel or significant
interpretation of the law or involves targeting non-U.S.
persons abroad, unless a court deems such an appointment
inappropriate.
Eectronic Surveilance and Physical
Search Orders
Titles I and III of FISA provide a framework by which
government agencies may seek orders from the FISC
Updated December 17, 2024
authorizing electronic surveillance or physical searches to
collect foreign intelligence. Before seeking a FISC order,
federal officials must first obtain approval from the
Attorney General (AG), 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) justifications for searching or surveilling the
target; (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
(addressing the retention, use, and dissemination of
intercepted communications); (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 discuss surveillance duration.
The government must also include in its applications
written certifications from specified executive branch
officials regarding the nature, purpose, and significance of
the information sought. For the FISC to issue a FISA order,
the government must show probable cause that the
surveillance target is a foreign power or 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. Specified officials must additionally certify that a
significant purpose of electronic surveillance or a
physical search is obtaining foreign intelligence
information. The FISCR has interpreted this to mean that
' [s]o long as the government entertains a realistic option of
dealing with the [foreign] agent other than through criminal
prosecution, it satisfies' the statutory requirements for
acquisition. The FISC may approve an application if the
above requirements are met.
PRITT Orders
Title IV of FISA provides procedures for the government to
seek FISC orders authorizing installing PR/TT devices to
obtain foreign intelligence information. Additionally, if the
information sought concerns a U.S. person, a PR/TT device
may be used only for counterterrorism or
counterintelligence. A PR/TT application must include
(1) the identity of the federal officer seeking to use a PR/TT
device, (2) the applicant's certification that the information
likely to be obtained is foreign intelligence information, and
(3) a specific selection term to be used as the basis of the
PR/TT device. Unlike electronic surveillance or physical
search orders, the FISC is not required to evaluate PR/TT
applications under a probable cause standard. Instead,](ViewImageLocal?handle=hein.crs/goversc0001&div=1&collection=&method=preview&ext=.png&size=3)