EFF FAQ: The Foreign Intelligence Surveillance Act (FISA)

Source: http://www.eff.org/Censorship/Terrorism_militias/fisa_faq.html

Prepared by Lee Tien, Electronic Frontier Foundation Senior Counsel, Sep. 27, 2001

1. What is FISA?

FISA is the Foreign Intelligence Surveillance Act, which establishes a legal regime for "foreign intelligence" surveillance separate from ordinary law enforcement surveillance. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95- 511, 92 Stat. 1783 (codified as amended at 50 U.S.C. §§ 1801-1811, 1821-1829, 1841-1846, 1861-62).

2. What is the purpose of FISA?

FISA is aimed at regulating the collection of "foreign intelligence" information in furtherance of U.S. counterintelligence, whether or not any laws were or will be broken. See 50 U.S.C. § 401(a)(3) (defining "counterintelligence" as information gathered and activities conducted to protect against espionage, other intelligence activities, sabotage, or assassinations conducted by or on behalf of foreign governments or elements thereof, foreign organizations, or foreign persons, or international terrorist activities). Department of Defense (DOD) guidelines state that the purpose of counterintelligence collection is to detect espionage, sabotage, terrorism, and related hostile intelligence activities to "deter, to neutralize, or to exploit them."

In short, counterintelligence and criminal prosecution are different.

3. How does FISA fit with regulation of electronic surveillance?

Given the "tendency of those who execute the criminal laws . . . to obtain conviction by means of unlawful seizures," the Supreme Court has viewed commumications interception as an especially grave intrusion on rights of privacy and speech. Berger v. New York, 388 U.S. 41, 50 (1967) (quotation and citation omitted). "By its very nature eavesdropping involves an intrusion on privacy that is broad in scope," and its "indiscriminate use . . . in law enforcement raises grave constitutional questions." Id. at 56 (quotation and citation omitted). "Few threats to liberty exist which are greater than those posed by the use of eavesdropping devices." Id. at 63.

Thus, the Court outlined seven constitutional requirements: (1) a showing of probable cause that a particular offense has been or is about to be committed; (2) the applicant must describe with particularity the conversations to be intercepted; (3) the surveillance must be for a specific, limited period of time in order to minimize the invasion of privacy (the N.Y. law authorized two months of surveillance at a time); (4) there must be continuing probable cause showings for the surveillance to continue beyond the original termination date; (5) the surveillance must end once the conversation sought is seized; (6) notice must be given unless there is an adequate showing of exigency; and (7) a return on the warrant is required so that the court may oversee and limit the use of the intercepted conversations.

Indeed, the Court said that if "neither a warrant nor a statute authorizing eavesdropping can be drawn so as to meet the Fourth Amendment's requirements . . . then the Ôfruits' of eavesdropping devices are barred under the Amendment." Id., at 63.

Where intelligence operations are concerned, however, the bounds of the Fourth Amendment are less clear than they are for ordinary criminal investigations. FISA creates a special court and legal regime for counterintelligence surveillance orders.

Executive Order 12,333 (1981) provides the general framework for U.S. intelligence activities, and it also addresses electronic surveillance. "[A]gencies are not authorized to use such techniques as electronic surveillance, unconsented physical searches, mail surveillance, physical surveillance, or monitoring devices unless they are in accordance with procedures established by the head of the agency concerned and approved by the Attorney General." EO 12,333, para. 2.4. Dep't. of Defense (DOD) Directive 5240.1-R implements FISA and EO 12,333 within DOD. These authorities govern the collection of intelligence by the U.S. government against United States persons, whether they are located within the United States or outside the United States.

FISA does not regulate the use of electronic surveillance outside of the United States. For instance, electronic surveillance of electronic communications like e-mail is only governed by §1801(f)(4) if the surveillance device is installed "in the United States." When e-mail sent by a U.S. person to a foreign person is intercepted outside the United States, that interception does not meet this definition.

4. Why is there a special legal regime for "foreign intelligence" surveillance?

The path to FISA has two branches, political and judicial.

The government had long maintained that it had extensive discretion to conduct wiretapping or physical searches in order to protect national security. In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court acknowledged that the President had claimed special authority for warrantless surveillance in national security investigations, and explicitly declined to extend its holding to cases "involving the national security." Id. at 358 n. 23. Similarly, Congress in Title III stated that "nothing in Title III shall . . . be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government."

On the political front, such executive branch activities, charitably described as "some degree of domestic overreaching of intelligence into domestic areas," had long been tolerated. Staff of House Permanent Select Comm. on Intelligence, 104th Cong., Staff Study, IC21: Intelligence Community in the 21st Century at 272 (comm. print 1996).

But in the 1970s the political winds changed. The 1975-76 Church Committee hearings documented extraordinary federal government abuse of surveillance powers. Examples included the the NSA's Operation Shamrock and Operation Minaret, CIA's Operation CHAOS, the FBI's COINTELPRO domestic harassment of dissenters and anti-war protesters that included illegal wiretapping, and the illegal burglaries of the Nixon White House "plumbers."

The Church Committee Report found that covert action had been excessive, had circumvented the democratic process, and had violated the Constitution. It concluded that Congress needed to prescribe rules for intelligence activities.

On the judicial front, the Supreme Court first confronted the tension between unmonitored executive branch surveillance and civil liberties in United States v. U.S. District Court, 407 U.S. 297 (1972), in which the United States charged defendants with conspiracy to destroy government property. Defendants sought electronic surveillance information, held by the prosecution, that the CIA obtained during a potentially illegal wiretap, wanting to ascertain whether the government had relied on information in the indictment or the case for conviction and to suppress any tainted evidence at trial. The Attorney General admitted that a warrantless wiretap had intercepted conversations involving the defendants.

Before the Supreme Court, the government defended its actions on the basis of the Constitution and the Title III national security disclaimer. The Court rejected the statutory argument, saying that "Congress . . . simply did not legislate with respect to national security surveillances." As for the constitutional argument, the Court accepted that the President had the power "to protect our Government against those who would subvert or overthrow it by unlawful means" and that this power justified electronic surveillance of would-be subversives.

Invoking the "broader spirit" of the Fourth Amendment and "the convergence of First and Fourth Amendment values" in national security wiretapping cases, however, the Court was especially wary of possible abuses of the national security power. The Court then balanced "the duty of Government to protect the domestic security, and the potential danger posed by unreasonable surveillance to individual privacy and free expression," and found that waiving the Fourth Amendment probable cause requirement could lead the executive to "yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech." Justice Powell wrote that the inconvenience to the government is "justified in a free society to protect constitutional values."

The Court emphasized that this case involved only the domestic aspects of national security: "We . . . express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents." It invited Congress to act: "Given these potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens."

These two paths, political and judicial, converged in the enactment of FISA.

5. Can FISA be used for ordinary criminal investigation?

Yes, but with qualifications. Under current law, any FISA investigation must have FII collection as its "primary purpose." Crossing the "primary purpose" line for information collection (from counterintelligence to law enforcement) subjects the investigation and evidence to extensive legal scrutiny and policy concerns. For instance, under DOD Dir. 5240.1-R, procedure 1, A, 3, DOD components cannot use the procedures for collecting intelligence information as a subterfuge for collecting evidence for a prosecutorial purpose.

This would change under draft Anti-Terrorism Act of 2001 (ATA).

6. Is there really a secret FISA court?

Yes. FISA established a special court, composed of seven federal district court judges appointed by the Chief Justice for staggered terms and are from different circuits. See 50 U.S.C.A. § 1803. Individual judges of the FISC review the Attorney General's applications for authorization of electronic surveillance aimed at obtaining foreign intelligence information. The proceedings are nonadversarial and are based solely on the DOJ's presentations through its Office of Intelligence Policy and Review.

The records and files of the cases are sealed and may not be revealed even to persons whose prosecutions are based on evidence obtained under FISA warrants, except to a limited degree set by district judges' rulings on motions to suppress. 50 U.S.C. §1803(c). There is no provision for the return of each executed warrant to the FISC, much less with an inventory of items taken, nor for certification that the surveillance was conducted according to the warrant and its "minimization" requirements.

The FISC meets two days monthly, and two of the judges are routinely available in the Washington, D.C. area on other days. Statement of Mary C. Lawton, Counsel for Intelligence Policy, Before the House Subcommittee on Courts, Civil Liberties, and the Administration of Justice, June 8, 1983, at 8.

7. What kind of surveillance can be authorized under FISA?

Originally, FISA was limited to electronic eavesdropping and wiretapping. 50 U.S.C. § 1801(f). In 1994 it was expanded to permit covert physical entries in connection with "security" investigations. 50 U.S.C. §§ 1821-1829. In 1998, it was amended to permit pen/trap orders, 50 U.S.C. §§ 1841-1846. FISA can also be used to obtain certain business records. §§ 1861-62.

8. How is surveillance authority different under FISA?

Although orders issued under FISA are sometimes called FISA "warrants," this is misleading because it suggests that the FISA order is like an ordinary search warrant or Title III intercept order -- and it isn't. Under the Fourth Amendment, a search warrant must be based on probable cause to believe that a crime has been or is being committed. This is not the general rule under FISA.

9. What is the basic "trigger" for permitting FISA surveillance?

Under FISA, surveillance is generally permitted based on a finding of probable cause that the surveillance target is a foreign power or an agent of a foreign power -- not whether criminality is in any way involved. §1801(b)(1).

10. What is a "foreign power"?

Examples of groups that would likely meet the definition of "foreign power" are the Irish Republican Army, Hezbollah, the PFLP, the ANC, and the FMLN. Note that a "foreign power" need not engage in activities hostile to U.S. interests.

A "foreign power" is

* a foreign government or a component thereof, whether or not recognized by the United States, 50 U.S.C. § 1801(a)(1).
* a "faction" of a foreign nation or nations, not substantially composed of United States persons, 50 U.S.C. § 1801(a)(2). The term "substantially" is not defined.
* any entity that a foreign government acknowledges it controls and directs, such as government trading or business corporations, § 1801(a)(3). It is unclear whether general regulation of a foreign corporation constitutes control and direction.
* any entity that in fact is controlled and directed by a foreign government. § 1801(a)(6). Given FISA's structure, it appears that this is decided by the FISA court.
* any group engaged in international terrorism or "activities in preparation therefor," not only governments or their components. § 1801(a)(4).
* any "foreign-based political organization, not substantially composed of United States persons." § 1801(a)(5). What do "foreign-based," "political," "organization," and "substantially" mean? Would FISA include a group of foreign college or graduate students that engages in political activism? A group of people who exchange opinions about world affairs by e-mail, some of whom live in the United States and others abroad?

11. What is an "agent of a foreign power"?

FISA §1801(b) defines this phrase in two ways, depending on whether the target is a U.S. person. §1801(b)(1) covers non-U.S. persons, while § 1801(b)(2) covers "any person."

Non-U.S. persons are "agents" under FISA if they

* act in the United States as an officer or employee of a foreign power, or as a member of a terrorist organization, § 1801(b)(1)(A)
* act for or on behalf of a foreign power that engages in clandestine intelligence activities in the United States contrary to U.S. interests when (1) the circumstances of such persons' presence in the United States "indicate that such person may engage in such activities, or (2) when such person knowingly aids or abets any person, or conspires with any person to engage in such activities." 50 U.S.C. § 1801(b)(1)(B).

So, for instance, a British national who works for the British embassy in the United States is an agent of a foreign power.

American citizens and permanent residents are "agents" if they knowingly engage in espionage for a foreign power or intelligence service, and such activities "are about to involve" a violation of U.S. laws--any criminal laws, not just espionage. §1801(b)(2)(B).

12. So FISA doesn't treat aliens and U.S. citizens equally?

If the target is a "U.S. person," which includes permanent resident aliens and associations and corporations substantially composed of U.S. citizens or permanent resident aliens, 50 U.S.C.A. § 1801(i), there must be probable cause to believe that the U.S. person's activities "may" or "are about to" involve a violation of the criminal statutes of the United States. § 1801(b)(2)(A),(B); see also § 1801(b)(2)(C) (knowingly engages in activities in preparation for sabotage or "international terrorism" on behalf of a foreign power); § 1801(b)(2)(D) (knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power).

A "United States person" may not be determined to be an agent of a foreign power "solely upon the basis of activities protected by the first amendment to the Constitution of the United States." 50 U.S.C. § 1805(a)(3)(A).

13. What is "foreign intelligence" information (FII)?

Under 50 U.S.C. §1801(e)(1), FII is information that "relates to" U.S. ability to protect against:

1. possible hostile acts of a foreign power or an agent of a foreign power,
2. sabotage or terrorism by a foreign power or agent, and
3. clandestine intelligence activities by a foreign power or agent.

FII includes information with respect to a foreign power or foreign territory that "relates to" the national defense, national security, or conduct of foreign affairs of the United States. § 1801(e)(2),

Under both sections, if the intended surveillance target is a U.S. person, the information must instead be "necessary to" U.S. self-protective ability or U.S. national defense, national security, or foreign affairs.

The difference between "relates to" and "necessary to" is undefined in the statute, although there may exist a secret FISA "case law."

Note that because the key FISA definitions are not tied to criminal conduct or even conspiracies, FISA can extend to FII in plain public view or in open archives (such as legal photographs of a city, a facility, or a public street, or newspaper clippings copied from a "morgue").

14. Can the FBI use FISA surveillance to get evidence for criminal prosecution?

FISA surveillances must have an intelligence purpose. 50 U.S.C. §1804 (a) (7)(B). But courts allow FISA-obtained information to be used in criminal trials. See, e.g., Exec. Order No. 12,333, 3 C.F.R. 200, 211 (1982), reprinted in 50 U.S.C. § 401 note (1994) (allowing the dissemination of information incidentally obtained during intelligence gathering that indicates activities potentially violating any law).

Courts that have allowed evidence gathered during the surveillance to support a criminal conviction have required that intelligence be the "primary" purpose of the surveillance. United States v. Humphrey, 456 F. Supp. 51 (E.D. Va. 1978), aff'd sub nom. United States v. Truong Dinh Hung, 629 F.2d 908, 913 (4th Cir. 1980), ("the Executive Branch need not always obtain a warrant for foreign intelligence surveillance"), cert. denied, 454 U.S. 1144 (1982); United States v. Megahey, 553 F. Supp. 1180, 1189-90 (E.D.N.Y. 1982), aff'd sub nom. United States v. Duggan, 743 F.2d 59 (2d Cir. 1984).

In the Megahey litigation, the district court found that the phrase "primary purpose" is the guidepost for FISA-derived surveillance, given that "Congress clearly viewed arrest and criminal prosecution as one of the possible outcomes of a foreign intelligence investigation." The Second Circuit agreed, noting that, it is foreseeable that collected intelligence may be used in a criminal proceeding and "Congress recognized that in many cases the concerns of government with respect for foreign intelligence will overlap with those with respect to law enforcement." See also United States v. Johnson, 952 F.2d 565, 572 (1st Cir. 1991) (holding that the fact that the terrorist activity was directed at Northern Ireland was of no consequence to the legality of the FISA surveillance); United States v. Pelton, 835 F.2d 1067, 1076 (4th Cir. 1987) (concluding that "FISA surveillance is not tainted simply because the government can anticipate that the fruits of the surveillance may later be used... in a criminal trial").

15. Why is FISA dangerous?

Most important, FISA powers are broad and vague, and the secrecy of FISA proceedings makes FISA powers susceptible to abuse.

FISA power extends well beyond spies and terrorists. It can be used in connection with ordinary criminal investigations involving United States citizens who live in this country and who may be charged with offenses such as narcotics violations or breaches of an employer's confidentiality. 50 U.S.C. §§ 1806, 1825.

For instance, electronic surveillance under § 1801(f)(1) only reaches wire or radio communications "sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person" and a warrant would ordinarily be required. If the U.S. person is not "known," or more important, not "intentionally" targeted, it simply isn't "electronic surveillance" under § 1801(f)(1).

Note also that FISA expressly contemplates that it will produce "unintentionally acquired information." § 1806(i). But while this section requires the destruction of such information, it only applies to "the contents of any radio communication," only if a warrant would have been required, and only if both the sender and intended recipients are within the United States.

Given these limits, one may presume that "unintentionally acquired information" outside these lines is not destroyed. That would include all "unintentionally acquired"wire or electronic communications.

16. How does FISA work?

Under FISA, requests for counterintelligence warrants are funneled through the Justice Department, which reviews applications by the CIA as well as other agencies before submitting them to the FISA court. 50 U.S.C. §§ 1804(a), 1822(a)(1) (1994). Each application to the FISA court must first be personally approved by the Attorney General. See 50 U.S.C. § 1804(a).

The application must contain, among other things,

a statement of reasons to believe that the target of the surveillance is a foreign power or agent of a foreign power, specified information on the implementation of the surveillance, and a "certification" from a high-ranking executive branch official stating that the official "deems the information sought to be foreign intelligence information" and that the information sought "cannot reasonably be obtained by normal investigative techniques."

See generally 50 U.S.C. §§ 1804(a)(7), 1805(a) (setting forth the findings necessary to support the issuance of an order authorizing surveillance).

Particular facts or representations required include: statements regarding all previous applications involving the target; "detailed description of the nature of the information sought and of the type of communication or activities to be subject to the surveillance," § 1804(a)(6); the length of time surveillance is required, § 1804(a)(10); whether physical entry into a premises is necessary, and proposed procedures to minimize the acquisition, use, and retention of information concerning nonconsenting U.S. persons. § 1804(b).

On the basis of the application, a FISC judge must find probable cause that the target is a foreign power or agent of a foreign power, and that the facilities where the surveillance is directed are or will be used by the target.

For U.S. persons, the FISC judge must find probable cause that one of four conditions has been met: (1) the target knowingly engages in clandestine intelligence activities on behalf of a foreign power which "may involve" a criminal law violation; (2) the target knowingly engages in other secret intelligence activities on behalf of a foreign power pursuant to the direction of an intelligence network and his activities involve or are about to involve criminal violations; (3) the target knowingly engages in sabotage or international terrorism or is preparing for such activities; or (4) the target knowingly aids or abets another who acts in one of the above ways.

Courts have attached conditions to the executive's use of warrantless surveillance, including the requirement that the President or Attorney General authorize the search, the search targets a foreign power or its agents, and the primary purpose of the search is to gather foreign intelligence information. See Exec. Order No. 12,333, § 2.5, 3 C.F.R. 200 (1982), reprinted in 50 U.S.C. § 401 note (1994) (requiring approval of attorney general for warrantless searches).

An order of the FISC may approve electronic surveillance of an agent of a foreign power for ninety days and of a foreign power for a year. Extensions may be granted on the same terms, except that targets who are foreign powers may be subject to surveillance for an additional year if there is probable cause to believe that no communication of any U.S. person will be acquired.

17. What happens if a criminal defendant challenges the validity of FISA surveillance?

Suppose a defendant moves to suppress evidence obtained via FISA surveillance. FISA provides that the district court must review in camera and ex parte the FISA application and other materials necessary to rule upon a defendant's suppression motion "if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States." 50 U.S.C. § 1806(f). See United States v. Belfield, 692 F.2d 141, 147 (D.C.Cir.1982) ("The language of section 1806(f) clearly anticipates that an ex parte, in camera determination is to be the rule. Disclosure and an adversary hearing are the exception, occurring only when necessary.").

In such circumstances, neither defendant nor defendant's counsel is likely to have access to the underlying information. 50 U.S.C. § 1806(f) (The district court "may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.").

18. Does FISA authorize surveillance without a court order?

Yes. In general, the Justice Department may engage in electronic surveillance to collect FII without a court order for periods up to one year. 50 U.S.C. § 1802. There must be no "substantial likelihood" that the intercepted communications include those to which a U.S. person is a party. § 1802(a)(1)(B).

Such electronic surveillance must be certified by the Attorney General and then noticed to the Senate and House intelligence committees. § 1802(a)(2). A copy of the certification must be filed with the FISC, where it remains sealed unless (a) an application for a warrant with respect to it is filed, or (b) the legality of the surveillance is challenged in another federal district court under § 1806(f). § 1802(a)(3). Common carriers must assist in the surveillance and maintain its secrecy. § 1802(a)(4).

In emergencies, the Attorney General may authorize immediate surveillance but must "as soon as practicable, but not more than twenty-four hours" later, seek judicial review of the emergency application. § 1805(e).

19. Is FISA really constitutional?

Lower courts have found FISA constitutional. See e.g., United States v. Duggan, 743 F.2d 59(2d Cir. 1984); United States v. Belfield, 692 F.2d 141 (D.C.Cir 1982); United States v. Nicholson, 955 F.Supp. 588 (E.D. Va. 1997).

In United States v. U.S. District Court, the Supreme Court used a two-part Fourth Amendment reasonableness test. It is doubtful whether the FISA review process satisfies the Court's first measure of the reasonableness of warrantless surveillance -- whether the citizens' interest in privacy and free expression are better served by a warrant requirement.

The second element --whether a judicially imposed law enforcement warrant requirement would "unduly frustrate the efforts of Government to protect itself" -- may be more easily met in the foreign intelligence setting. But Title III has for more than 30 years required more stringent procedures for criminal investigatory wiretaps.