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Foreign Intelligence Surveillance Act of 1978

During the 1970s it was revealed that the US government had engaged in a huge amount of unauthorized spying during the 1960s and early 1970s. For this reason, Congress decided to provide a legal framework to curb foreign intelligence investigations. The Foreign Intelligence Surveillance Act of 1978 (FISA), along with other amendments to the Act, created a warrant procedure for foreign intelligence investigations, so that there would no longer be any foreign intelligence surveillance without court oversight.

What is the FISA?

Signed into law in 1978, the FISA requires the government to obtain search warrants and wiretap orders from a court even when it is investigating foreign threats to national security.

All government requests for foreign intelligence surveillance authorization are made to the FISA court, which many argue function as a secret court. In order to qualify for authorization, a significant purpose of the surveillance must be to gather foreign intelligence information – information about foreign spies, foreign terrorists and other foreign threats – rather than providing evidence of a crime.

In the FISA court, the probable cause standard is quite different. Instead of having to show probable cause that a crime is being, has been, or will be committed, the government must show that the target of the surveillance is a foreign power or an agent of a foreign power.

Unlike law enforcement surveillance, the target is never told by the government that he/she was spied on, and every person served with a FISA search warrant, wiretap or pen/trap order, or subpoena is also served with a gag order forbidding them from telling anyone about it, other than their lawyer.

What is a “foreign power”?

When it comes to FISA surveillance, it’s unclear exactly what qualifies as a foreign power or an agent of a foreign power. The FISA law defines those terms vaguely. Without access to the decisions of the secret FISA court, there’s no way to be sure how broadly or narrowly the definitions are being interpreted.

Under FISA, a foreign power includes:

  • Any foreign government or component of a foreign government, whether or not officially recognized by the US.
  • Any “faction” of a foreign nation(s). Any foreign-based political organization that isn’t “substantially” composed of US persons. Note that under the FISA, “faction” and “substantially” aren’t clearly defined, while a “US person” is considered a citizen or legal resident of the US.
  • Any entity, such as a political organization or a business, that is directed or controlled by a foreign government.
  • Any group engaged in, or preparing to engage in “international terrorism.” This term is broadly defined as activities that:
    • Involve violent acts or acts dangerous to human life that are a violation of US criminal laws or would be a violation if committed in the US.
    • Appear to be intended to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion, or to affect the conduct of a government by assassination or kidnapping.
    • Occur totally outside the US, or transcend national boundaries in terms of how they are accomplished, the people they are intended to coerce or intimidate, or the place where the terrorists operate.

FISA Wiretaps

It’s important to note that FISA surveillance is quite rare, though when it takes place it includes the communications of many individuals. As information released regarding FISA surveillance is so limited, it is difficult to determine just how many people are affected and how many communications are intercepted.

The only FISA data available to the public are the numbers of applications made to, and approved by, the FISA court. Currently, FISA orders outnumber all federal and state wiretap orders combined.

FISA extension

In September 2012, the House of Representatives voted to reauthorize the 2008 amendments to the FISA (Foreign Intelligence Surveillance Act’s Amendments Act of 2008). This was a controversial piece of legislation challenged by privacy advocates and civil liberties organizations nationwide.

Under the Amendments Act, the government was permitted to conduct widespread and blanketing snooping of emails and phone calls of US persons. Section 702 of the FISA Amendments specify that the government can eavesdrop on emails and phone calls sent from US citizens to persons reasonably suspected to be located abroad without ever requiring intelligence officials to obtain a court order.

Summary

Signed into law in 1978, the Foreign Intelligence Surveillance Act (FISA) requires the government to obtain search warrants and wiretap orders from a court even when it is investigating foreign threats to national security.

CIPP Exam Preparation

In preparation for the Certified Information Privacy Professional/United States (CIPP/US) exam,  a privacy professional should be comfortable with topics related to this post, including:

  • Foreign Intelligence Surveillance Act of 1978 (III.B.a.)
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