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, Obama pushed the USA FREEDOM Act to re-authorize them in 2015.
Trump pushed the FISA Amendments Reauthorization Act of 2017 which extended authorizations and additionally authorized mass surveillance in which the communications of citizens are incidentally obtained. This Section 702 was designed to sunset in 2023.
Biden pushed for the extension of Section 702. Temporary extensions passed in late 2023 as part of the National Defense Authorization Act, and a two year extension passed in 2024 as part of the Reforming Intelligence and Securing America Act.