FISA and the Creation of the Foreign Intelligence Surveillance Court
FISA was enacted in 1978. It was a significant milestone for national security surveillance oversight. It acknowledged the importance of balancing intelligence gathering with individual rights. FISA introduced formal surveillance mechanisms and established the U.S. Foreign Intelligence Surveillance Court (FISC). This unique federal body is responsible for reviewing and authorizing government requests for electronic surveillance and physical search warrants on foreign intelligence collection.
Unique to the criminal justice system, FISC sessions are nonpublic. They cater exclusively to the government's side when deciding on the issuance of search warrants, operating in an ex parte fashion, which means no parties other than the government are present during the deliberations. This one-sided court process is designed to maintain the secrecy often essential in national security cases.
How Does the FISC Authorize Warrants?
Electronic surveillance under FISA requires the government to apply to FISC with probable cause. It must affirm the surveillance target is either a foreign power or its agent. Probable cause in this context differs from criminal law. The government must show that the primary goal is obtaining foreign intelligence information and that the target will likely yield such intelligence. This contrasts with domestic law enforcement warrants, where the intent is to prove the commission of a crime.
The definition of foreign agents includes entities like foreign governments, factions of foreign nations not substantially composed of United States persons, and groups engaged in international terrorism. Targets linked to such entities may be subjects of FISC-issued warrants.
Heightened protections apply when the targets are U.S. persons, such as citizens and permanent residents. Surveillance of these individuals demands that the government meet additional criteria to preserve civil liberties.
What Safeguards Are in Place?
The Foreign Intelligence Surveillance Act dictates stringent handling procedures for unintentionally intercepted U.S. communications. They must be disposed of immediately unless they indicate a potential threat of death or serious bodily harm. Furthermore, strict minimization procedures intended to protect the privacy of U.S. persons are mandated to limit the scope of data collection, retention, and dissemination.
There is an exception to FISC's authorization requirement. The President may authorize surveillance without a court order for up to one year, provided that it is entirely directed at foreign powers and there is minimal risk of capturing a U.S. person's communications. This stipulation is under subsection 1802.
Physical searches conducted for intelligence purposes follow a similar protocol to electronic surveillance. Requests for FISC's authorization align closely with the practices used for electronic surveillance, adhering to procedural standards designed to respect privacy while enabling security operations.
Pen registers and trap-and-trace devices, often used in telephone and email surveillance, and demands for third-party production of business records are also subject to FISC's authorization. These tools assist in collecting data relevant to foreign intelligence without recording the contents of communications, ensuring a balance between intelligence gathering and privacy concerns.
Legislative Impact on FISA and FISC's Role
Over the years, FISA has undergone substantial amendments to accommodate the evolving landscape of national security and address the complexities of modern communication technology. These revisions have influenced FISC's procedures and the scope of its authority.
Notable amendments began with the Intelligence Authorization Act of 1995, followed by subsequent updates, including the impact of the USA PATRIOT Act in 2001. This act relaxed restraints on intelligence operations within the U.S. and provided the intelligence community with more accessible information found in criminal probes. The amendments expanded surveillance laws' reach and adjusted the evidence threshold required for the FISC to issue warrants.
In 2008, the FISA Amendments Act further altered surveillance statutes, reflecting the need for real-time responsiveness in foreign intelligence operations. These changes clarified the cooperation and information sharing among federal agencies and how intelligence outcomes are disclosed in criminal proceedings.
Civil liberties are a focal point in every amendment to FISA. Explicit prohibitions exist against surveillance based solely on activities protected by the First Amendment. Protection extends to U.S. persons, ensuring lawful advocacy and protest do not expose individuals to unwarranted surveillance. Adjustments made by the Intelligence Reform and Terrorism Prevention Act of 2004 introduced the 'lone wolf' provision, which considers a non-U.S. person engaging in or preparing for international terrorism as an agent of a foreign power.
As legal frameworks evolve, FISC's operation has expanded. Yet its role remains fundamentally tied to its initial purpose: to provide a judicial review mechanism that balances the imperatives of national security with the civil liberties that define open societies.
