Foreign Intelligence Surveillance Act

The Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1801 et seq., prescribes procedures for requesting judicial authorization for electronic surveillance and physical search of persons engaged in espionage or international terrorism against the United States on behalf of a foreign power. It authorizes federal agents to conduct electronic surveillance, as part of a foreign intelligence or counterintelligence investigation, without obtaining a traditional, probable-cause search warrant.

Foreign Intelligence Surveillance Court

Section 1803 of the FISA established a secret court called the Foreign Intelligence Surveillance Court, which "shall have jurisdiction to hear applications for and grant orders approving electronic surveillance anywhere within the United States under the procedures set forth in this Act." The FISC is comprised of 11 district court judges appointed by the Chief Justice, and a Court of Review, which is comprised of three district court or court of appeals judges appointed by the Chief Justice.

Applications for court orders authorizing searches or surveillance under FISA are made to the FISC under oath by a federal officer with the approval of the Attorney General, the Acting Attorney General, or the Deputy Attorney General. 50 U.S.C. §§ 1801(g), 1804, 1823. The application must identify or describe the target of the search or surveillance, and establish that the target is either a "foreign power" or an "agent of a foreign power." 50 U.S.C. §§ 1804(a)(3), 1804(a)(4)(A), 1823(a)(3), 1823(a)(4)(A). A "foreign power" is defined to include, among other things, a "foreign government or any component thereof," and a "group engaged in international terrorism." 50 U.S.C. §§ 1801(a)(1), (4).

The Rules of the FISC are available at http://www.aclu.org/patriot_foia/2003/court_rules.pdf.

Minimization

FISA requires the FISC to determinet hat the proposed minimization procedures are "reasonably designed to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information." 50 U.S.C. §§ 1805, 1824.

Between 1979 when the FISA became operational and 1995, the government relied on the standard minimization procedures to regulate all electronic surveillance. In 1995, following amendment of the FISA to permit physical searches, comparable minimization procedures were adopted for foreign intelligence searches. On July 19, 1995, the Attorney General issued Procedures for Contacts Between the FBI and Criminal Division Concerning FI and Foreign Counterintelligence Investigations, available at http://www.fas.org/irp/agency/doj/fisa/1995procs.html.

PATRIOT Act Changes

The USA PATRIOT Act modified the definition of the type of investigation in which a FISA order could be obtained. Previously, in order to obtain a FISA order, it was necessary that “the purpose” of the surveillance was to obtain intelligence information. With the change, the requirement now is that “a significant purpose” of the surveillance is to obtain intelligence information. 50 U.S.C. § 1804(a)(7).

Prior to the Patriot Act, in United States v. Johnson, 952 F.2d 565, 572 (1st Cir. 1991), cert. denied, 506 U.S. 816 (1992), the First Circuit construed FISA’s “purpose” language to mean that “the investigation of criminal activity cannot be the primary purpose of the surveillance,” and rooted its holding in the view that FISA should “not be used as an end-run around the Fourth Amendment’s prohibition of warrantless searches,” id.; see also United States v. Pelton, 835 F.2d 1067 (4th Cir. 1987), cert. denied 486 U.S. 1010 (1988).

The USA PATRIOT Act also expands FISA to allow "roving" wiretaps -the FISC can now issue a generic order that can be served on any third party needed to assist with the surveillance, and no longer needs to name specific third parties whose cooperation would be required, such as a telephone company or an internet service provider.

Constiutional Considerations

Before FISA, some court recognized a foreign-intelligence exception to the Fourth Amendment’s usual requirements, but carefully cabined the circumstances in which the executive branch may invoke the exception. See, e.g., United States v. Butenko, 494 F.2d 593, 606 (3d Cir. 1974), cert. denied, 419 U.S. 881 (1974) (“Since the primary purpose of these searches is to secure foreign intelligence information, a judge, when reviewing a particular search must, above all, be assured that this was in fact its primary purpose and that the accumulation of evidence of criminal activity was incidental.”)

In United States v. Duggan, 743 F.2d 59, 77 (2d Cir. 1984), the Second Circuit held that FISA’s requirement that foreign-intelligence information to be “the primary objective of the surveillance,” reflected a “constitutionally adequate balancing of the individual’s Fourth Amendment rights against the nation’s need to obtain foreign intelligence information.”