Foreign Intelligence Surveillance Act
The Foreign Intelligence Surveillance Act (FISA) restricts surveillance and intelligence collection within the United States.
Description
FISA establishes a Foreign Intelligence Surveillance Court and requires law enforcement agencies and intelligence agencies to obtain authorization on the basis of probable cause from this court. Authorizations do expire and must be extended or renewed.
Without a warrant, the attorney general can simply inform the court that surveillance for foreign intelligence information is necessary (documenting the requirement under seal) and then report compliance with all relevant requirements to the House and Senate Intelligence Committees. The most relevant requirements are:
- surveillance must be directed at communications or property exclusively owned by a foreign power
- surveillance must be for collecting foreign intelligence information, which generally means information about terrorist activity or sabotage
- surveillance must be unlikely to obtain information of a U.S. citizen, U.S. resident, or U.S.-incorporated corporations
- any information obtained about those protected categories must be destroyed within 72 hours, unless there is evidence of a crime in the information or a warrant is obtained
For the first fifteen days of a war, warrantless surveillance is unlimited.
History
FISA was written and passed largely in response to the surveillance activities of the Nixon administration. Kennedy introduced the bill in 1977 and, after more than a year of debate, it was passed and signed by Carter in late 1978. In this form, it did not include any warrantless provisions.
Bush pushed a series of amendments to expand allowable surveillance. Of note, the USA PATRIOT Act expanded provisions to cover terrorist organizations; in 2004 it was amended to cover 'lone wolf' terrorists.
Also under the Bush administration, the NSA wiretapped phones without authorization. This was leaked to the press in late 2005 and generated enough controversy to end the program by early 2007, although it was then authorized by the Protect America Act.
After several provisions had lapsed, the USA FREEDOM Act re-authorized them in 2015.