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Foreign Intelligence
Surveillance Act
From Wikipedia, the free encyclopedia
The Foreign Intelligence
Surveillance Act (FISA) of 1978 is a U.S. federal law prescribing
procedures for the physical and electronic surveillance and collection
of "foreign intelligence information" between or among "foreign powers"
on territory under United States control.
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Senate
Majority Leader Harry Reid of Nev. right, looks on as Senator
Christopher Bond, R-Mo., discusses Senate action on the Foreign
Intelligence Surveillance Act (FISA), Tuesday, Feb. 12, 2008,
during a news conference on Capitol Hill in Washington.
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FISA is codified in 50 U.S.C.
§§1801?1811, 1821?29, 1841?46, and 1861?62. The subchapters of FISA
provide for:
* Electronic Surveillance
* Physical Searches
* Pen Registers and Trap & Trace Devices for Foreign Intelligence
Purposes
* Access to certain Business Records for Foreign Intelligence Purposes
The act created a court which meets in secret, and approves or denies
requests for search warrants. Only the number of warrants applied for,
issued and denied, is reported. In 1980 (the first full year after its
inception), it approved 322 warrants. This number has steadily grown to
2224 warrants in 2006. Only 5 warrants have been rejected since the
court first met in 1979.
The Act was amended by the USA PATRIOT Act of 2001, primarily to include
terrorism on behalf of groups that are not specifically backed by a
foreign government.
An overhaul of the bill, the Protect America Act of 2007 was signed into
law on 2007-08-05.
History
The Foreign Intelligence Surveillance Act resulted from extensive
investigations by Senate Committees into the legality of domestic
intelligence activities. These investigations were led separately by Sam
Ervin and Frank Church in the 1970s after certain activities had been
revealed by the Watergate affair (see the Church Committee report). The
act was created to provide Judicial and congressional oversight of the
government's covert surveillance activities of foreign entities and
individuals in the United States, while maintaining the secrecy needed
to protect national security. It allowed warrantless surveillance within
the United States for up to one year unless the "surveillance will
acquire the contents of any communication to which a United States
person is a party". If a United States person is involved, judicial
authorization was required within 72 hours after surveillance begins.
Bush administration warrantless domestic wiretapping program
Main article: NSA warrantless surveillance controversy
The Act came into public prominence in December 2005 following
publication by the New York Times of an article that described a program
of warrantless domestic wiretapping ordered by the Bush administration
and carried out by the National Security Agency since 2002 (a subsequent
Bloomberg article suggested that this may have already begun by June
2000). Many critics, including some Republicans, have asserted that the
Administration's warrantless spying program is a violation of the Fourth
Amendment to the United States Constitution against warrantless search
and a criminal violation of FISA.
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Thursday January 26,
2006 Bush on the defense again calling it a
"Terrorist Surveillance Program".
It's Simple.
The Law Is The Law.
It just seems simple. We have a
system of checks and balances in place to protect us
from things like our own government when necessary,
Foreign Intelligence Surveillance Act, FISA. No one is
immune to federal laws, not even the president. It's not
about American's wanting to protect terrorists or make
it more difficult to catch them. It's also not about
impeding any process that would prevent terrorists from
striking Americans. That is not what the hoopla is
about. It is about following the law. Again, it seems
simple.
Americans' are being illegally wiretapped according to
our federal laws. You set up a wiretap to gain
information and evidence that you don't already have. I
am not arguing that fishing for information about known
or suspected terrorists isn't legitimate. But there are
federal laws prohibiting eavesdropping on Americans
without a court order. The law even makes exceptions to
allow for justification after the fact to prevent
compromising an investigation when time is critical. So
why can't this administration just follow the law. I
really can't comprehend the arrogance and bully
mentality of this president, it's the kind of behavior
that contributes to the attitude that so much of the
world has toward America now. It's frightening when our
president takes the law into his own hands and refuses
to be accountable. The law is the law and no one is
above it, including the president.
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Scope and limits
For most purposes, including electronic surveillance and physical
searches, "foreign powers" means a foreign government, any faction(s) or
foreign governments not substantially composed of US persons, and any
entity directed or controlled by a foreign government. §§1801(a)(1)-(3)
The definition also includes groups engaged in international terrorism
and foreign political organizations. §§1801(a)(4) and (5). The sections
of FISA authorizing electronic surveillance and physical searches
without a court order specifically exclude their application to groups
engaged in international terrorism. See §1802(a)(1) (referring
specifically to §1801(a)(1), (2) and (3).
The statute limits its application to US persons. A US person includes
citizens, lawfully admitted permanent resident aliens, and corporations
incorporated in the US.
The code defines "foreign intelligence information" to mean information
necessary to protect the United States against actual or potential grave
attack, sabotage or international terrorism.
Provisions
Electronic surveillance
Generally, the statute permits electronic surveillance in two scenarios.
Without a court order
The President may authorize, through the Attorney General, electronic
surveillance without a court order for the period of one year provided
it is only for foreign intelligence information;[8] targeting foreign
powers as defined by 50 U.S.C. §1801(a)(1),(2),(3) or their agents; and
there is no substantial likelihood that the surveillance will acquire
the contents of any communication to which a United States person is a
party.
The Attorney General is required to make a certification of these
conditions under seal to the Foreign Intelligence Surveillance Court,
and report on their compliance to the House Permanent Select Committee
on Intelligence and the Senate Select Committee on Intelligence.
Since 50 U.S.C § 1802 (a)(1)(A) of this act specifically limits
warrantless surveillance to foreign powers as defined by 50 U.S.C.
§1801(a) (1),(2), (3) and omits the definitions contained in 50 U.S.C.
§1801(a) (4),(5),(6) the act does not authorize the use of warrantless
surveillance on: groups engaged in international terrorism or activities
in preparation therefore; foreign-based political organizations, not
substantially composed of United States persons; or entities that are
directed and controlled by a foreign government or governments. Under
the FISA act, anyone who engages in electronic surveillance except as
authorized by statute is subject to both criminal penalties and civil
liabilities.
With a court order
Alternatively, the government may seek a court order permitting the
surveillance using the FISA court. Approval of a FISA application
requires the court find probable cause that the target of the
surveillance be a "foreign power" or an "agent of a foreign power", and
that the places at which surveillance is requested is used or will be
used by that foreign power or its agent. In addition, the court must
find that the proposed surveillance meet certain "minimization
requirements" for information pertaining to US persons.
Physical Searches
In addition to electronic surveillance, FISA permits the "physical
search" of the "premises, information, material, or property used
exclusively by" a foreign power.
The requirements and procedures are nearly identical to those for
electronic surveillance.
FISA court
Main article: United States Foreign Intelligence Surveillance Court
The Act created the Foreign Intelligence Surveillance Court (FISC) and
enabled it to oversee requests for surveillance warrants by federal
police agencies (primarily the F.B.I.) against suspected foreign
intelligence agents inside the U.S. The court is located within the
Department of Justice headquarters building. The court is staffed by
eleven judges appointed by the Chief Justice of the United States to
serve seven year terms.
Proceedings before the FISA court are ex parte and non-adversarial. The
court hears evidence presented solely by the Department of Justice.
There is no provision for a release of information regarding such
hearings, or for the record of information actually collected.
Main article: United States Foreign Intelligence Surveillance Court of
Review
Denials of FISA applications by the FISC may be appealed to the Foreign
Intelligence Surveillance Court of Review. The Court of Review is a
three judge panel. Since its creation, the court has only come into
session once in 2002.
Remedies for violations
Both the subchapters covering physical searches and electronic
surveillance provide for criminal and civil liability for violations of
FISA.
Criminal sanctions follows violations of electronic surveillance by
intentionally engaging in electronic surveillance under the color of law
or through disclosing information known to have been obtained through
unauthorized surveillance. The penalties for either act are fines up to
$10,000, up to five years in jail, or both.
In addition, the statute creates a cause of action for private
individuals whose communications were unlawfully monitored. The statute
permits actual damages of not less than $1,000 or $100 per day. In
addition, that statute authorizes punitive damages and an award of
attorney's fees.
Similar liability is found under the subchapter pertaining to physical
searches.
In both cases, the statute creates an affirmative defense for a law
enforcement agent acting within their official duties and pursuant to a
valid court order. Presumably, such a defense is not available to those
operating exclusively under presidential authorization.
Lone wolf amendment
In 2004, FISA was amended to include a "lone wolf" provision. 50 U.S.C.
§1801(b)(1)(C). A "lone wolf" is a non-US person who engages in or
prepares for international terrorism. The provision amended the
definition of "foreign power" to permit the FISA courts to issue
surveillance and physical search orders without having to find a
connection between the "lone wolf" and a foreign government or terrorist
group.
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