Foreign Intelligence Surveillance Act

History and background

The Foreign Intelligence Surveillance Act (FISA) was introduced on May 18, 1977, by Senator Ted Kennedy and was signed into law by President Jimmy Carter on 25 October 1978. The bill was cosponsored by nine senators: Birch Bayh, James O. Eastland, Jake Garn, Walter Huddleston, Daniel Inouye, Charles Mathias, John L. McClellan, Gaylord Nelson, and Strom Thurmond.

The FISA 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 1978 as a response to President Richard Nixon's usage of federal resources, including law enforcement agencies, to spy on political and activist groups. The law itself was crafted in large part in closed door meetings between legislators and members of the Justice Department.

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.

Warrantless domestic wiretapping program

FISA came into public prominence in December 2005 following an article in The New York Times 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 this may have already begun by June 2000. Attorney General Alberto Gonzales later confirmed the existence of the program, which was codenamed Stellar Wind.

Without obtaining a FISA warrant, the NSA monitored phone calls, Internet activities, text messages, and other forms of communication involving any party it believed to be outside the U.S., regardless of whether part of the communication took place domestically. The Bush administration initially defended the program as an extension of executive authority; amid public, political, and legal pressure, the program was ended in January 2007 and the government announced it would seek warrants from the Foreign Intelligence Surveillance Court (FISC).

Section 702

Following the controversy over Stellar Wind, Congress later legalized a form of that program in Section 702. Between 2020 and early 2022, Bureau personnel conducted more than 278,000 searches of surveillance databases that did not meet legal standards.

Following the December 2019 DOJ Inspector General report, FBI Director Christopher A. Wray announced corrective actions to FISA policies and procedures. NBC News reported in July 2023 that FBI queries of foreign spy data had fallen 94% following reform implementation.

A proposed warrant requirement for such searches failed by a single vote in the House of Representatives.

Provisions

The subchapters of FISA provide for:

Electronic surveillance (50 U.S.C. ch. 36, subch. I)

Physical searches (50 U.S.C. ch. 36, subch. II)

Pen registers and trap & trace devices for foreign intelligence purposes (50 U.S.C. ch. 36, subch. III)

Access to certain business records for foreign intelligence purposes (50 U.S.C. ch. 36, subch. IV)

Reporting requirement (50 U.S.C. ch. 36, subch. V)

Electronic surveillance

Generally, the statute permits electronic surveillance in two different scenarios.

The President may authorize, through the Attorney General, electronic surveillance without a court order for the period of one year, provided that it is only to acquire foreign intelligence information, that it is solely directed at communications or property controlled exclusively by foreign powers, that there is no substantial likelihood that it will acquire the contents of any communication to which a United States person is a party, and that it be conducted only in accordance with defined minimization procedures.

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.

"Foreign powers" means a foreign government, any faction of a foreign nation not substantially composed of U.S. persons, and any entity directed or controlled by a foreign government. The definition also includes groups engaged in international terrorism and foreign political organizations. The sections of FISA authorizing electronic surveillance and physical searches without a court order specifically exclude their application to groups engaged in international terrorism.

A "U.S. person" includes citizens, lawfully admitted permanent resident aliens, and corporations incorporated in the United States.

"Minimization procedures" limit the collection of information concerning United States persons by protecting their identities and requiring a court order to retain the communications for longer than 72 hours. The communications can be retained without court order if there is evidence of a crime. Identification of a US person, known as "unmasking", may also be authorized if an agency believes it is necessary in order to understand the intelligence or believes that the person was committing a crime.

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.

FISA court

The Act created the Foreign Intelligence Surveillance Court (FISC) and enabled it to oversee requests for surveillance warrants by federal law enforcement and intelligence agencies (primarily the Federal Bureau of Investigation and the National Security Agency) against suspected foreign intelligence agents inside the U.S. The court is located within the E. Barrett Prettyman United States Courthouse in Washington, D.C. 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. The USA Freedom Act (Section 402), however, requires the government to declassify and publicly release "to the greatest extent practicable" each order, decision and opinion of the court if it contains a "significant construction or interpretation of law."

FISC 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 2,224 warrants in 2006. In the period 1979–2006, a total of 22,990 applications for warrants were made to the Court of which 22,985 were approved (sometimes with modifications; or with the splitting up, or combining, of warrants for legal purposes), and only 5 were definitively rejected.

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 come into session twice: in 2002 and 2008.

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.

Telephone metadata

In the 2020 case, United States v. Moalin, the Ninth Circuit Court of Appeals ruled that the federal government violated FISA, and possibly the Fourth Amendment of the U.S. Constitution, when it collected the telephony metadata of millions of Americans.

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 US$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 $10,000 or $1,000 per day of violation if aggrieved person is a United States person, and $1,000 or $100 per day for all other aggrieved persons, per a 2008 amendment. 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 law enforcement personnel 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.

Constitutionality

Before FISA

In 1967, the Supreme Court of the United States held that the requirements of the Fourth Amendment applied equally to electronic surveillance and to physical searches. Katz v. United States, 389 U.S. 347 (1967). The Court did not address whether such requirements apply to issues of national security. Shortly after, in 1972, the Court took up the issue again in United States v. United States District Court, Plamondon, 407 U.S. 297 (1972), where the court held that court approval was required in order for the domestic surveillance to satisfy the Fourth Amendment. Justice Powell wrote that the decision did not address this issue that "may be involved with respect to activities of foreign powers or their agents".

Immediately preceding FISA, a number of courts squarely addressed the issue of "warrantless wiretaps". In both United States v. Brown, 484 F.2d 418 (5th Cir. 1973), and United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), the courts upheld warrantless wiretaps. In Brown, a U.S. citizen's conversation was captured by a wiretap authorized by the Attorney General for foreign intelligence purposes. In Butenko, the court held a wiretap valid if the primary purpose was for gathering foreign intelligence information.

A plurality opinion in Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975), held that a warrant was required for the domestic surveillance of a domestic organization. In this case, the court found that the domestic organization was not a "foreign power or their agent", and "absent exigent circumstances, all warrantless electronic surveillance is unreasonable and therefore unconstitutional."

Post-FISA

There have been very few cases involving the constitutionality of FISA. Two lower court decisions found FISA constitutional. In United States v. Duggan, 743 F.2d 59 (2d Cir. 1984), the defendants were members of the Irish Republican Army. They were convicted for various violations regarding the shipment of explosives and firearms. The court held that there were compelling considerations of national security in the distinction between the treatment of U.S. citizens and non-resident aliens.

In the United States v. Nicholson, 955 F. Supp. 588 (E.D. Va. 1997), the defendant moved to suppress all evidence gathered under a FISA order. The court affirmed the denial of the motion. There, the court flatly rejected claims that FISA violated Due Process Clause of the Fifth Amendment, Equal protection, Separation of powers, nor the Right to counsel provided by the Sixth Amendment.

However, in a third case, the special review court for FISA, the equivalent of a Circuit Court of Appeals, opined differently. In In re Sealed Case, 310 F.3d 717, 742 (FISA Ct. Rev. 2002), the special court stated "[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information . ... We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."

Criticism

K. A. Taipale of the World Policy Institute and Philip Bobbitt of Columbia Law School argued in the mid-2000s that FISA should be amended to include, among other things, procedures for programmatic approvals, saying it was no longer adequate to address certain foreign intelligence needs and technology developments, including: the transition from circuit-based communications to packet-based communications; the globalization of telecommunication infrastructure; and the development of automated monitoring techniques, including data mining and traffic analysis.

In 2006, John R. Schmidt, associate attorney general in the Justice Department under President Bill Clinton, argued for programmatic approval of technology-enabled surveillance programs. He recalled early arguments made by then-Attorney General Edward Levi to the Church Committee that foreign intelligence surveillance legislation should include provisions for programmatically authorizing surveillance programs because of the particular needs of foreign intelligence where "virtually continuous surveillance, which by its nature does not have specifically predetermined targets" may be required. In these situations, "the efficiency of a warrant requirement would be minimal."

In a 2006 opinion, Judge Richard Posner wrote that FISA "retains value as a framework for monitoring the communications of known terrorists, but it is hopeless as a framework for detecting terrorists. [FISA] requires that surveillance be conducted pursuant to warrants based on probable cause to believe that the target of surveillance is a terrorist, when the desperate need is to find out who is a terrorist."

In 2008, the ACLU said the FISA Act was unconstitutional for several reasons including: the law was designed to mainly address terrorism threats, but in fact intercepts communications that have nothing to do with terrorism or criminal activity of any kind; and that "the government can create huge databases that contain information about U.S. persons obtained without warrants and then search these databases at a later point."

Amendments

USA PATRIOT Act

The Act was amended in 2001 by the USA PATRIOT Act, primarily to include terrorism on behalf of groups that are not specifically backed by a foreign government.

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-U.S. 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. However, "if the court authorizes such a surveillance or physical search using this new definition of 'agent of a foreign power', the FISC judge has to find, in pertinent part, that, based upon the information provided by the applicant for the order, the target had engaged in or was engaging in international terrorism or activities in preparation therefor".

Terrorist Surveillance Act of 2006

On March 16, 2006, Senators Mike DeWine (R-OH), Lindsey Graham (R-SC), Chuck Hagel (R-NE), and Olympia Snowe (R-ME) introduced the Terrorist Surveillance Act of 2006 (S.2455), under which the President would be given certain additional limited statutory authority to conduct electronic surveillance of suspected terrorists in the United States subject to enhanced Congressional oversight. Also on March 16, 2006, Senator Arlen Specter (R-PA) introduced the National Security Surveillance Act of 2006 (S. 2453), which would amend FISA to grant retroactive amnesty for warrantless surveillance conducted under presidential authority and provide FISA court (FISC) jurisdiction to review, authorize, and oversight "electronic surveillance programs". On May 24, 2006, Senator Specter and Senator Dianne Feinstein (D-CA) introduced the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006 (S. 3001) asserting FISA as the exclusive means to conduct foreign intelligence surveillance.

All three competing bills were the subject of Judiciary Committee hearings throughout the summer. On September 13, 2006, the Senate Judiciary Committee voted to approve all three mutually exclusive bills, thus, leaving it to the full Senate to resolve.

On July 18, 2006, U.S. Representative Heather Wilson (R-NM) introduced the Electronic Surveillance Modernization Act (H.R. 5825). Wilson's bill would give the President the authority to authorize electronic surveillance of international phone calls and e-mail linked specifically to identified terrorist groups immediately following or in anticipation of an armed or terrorist attack on the United States. Surveillance beyond the initial authorized period would require a FISA warrant or a presidential certification to Congress. On September 28, 2006, the House of Representatives passed Wilson's bill and it was referred to the Senate.

Protect America Act of 2007

On July 28, 2007, President Bush called on Congress to pass legislation to reform the FISA in order to ease restrictions on surveillance of terrorist suspects where one party (or both parties) to the communication are located overseas. He asked that Congress pass the legislation before its August 2007 recess. On August 3, 2007, the Senate passed a Republican-sponsored version of FISA (S. 1927) in a vote of 60 to 28. The House followed by passing the bill, 227–183. The Protect America Act of 2007 (Pub. L. 110–55 (text) (PDF), S. 1927) was then signed into law by George W. Bush on August 5, 2007.

Under the Protect America Act of 2007, communications that begin or end in a foreign country may be wiretapped by the U.S. government without supervision by the FISA Court. The Act removes from the definition of "electronic surveillance" in FISA any surveillance directed at a person reasonably believed to be located outside the United States. As such, surveillance of these communications no longer requires a government application to, and order issuing from, the FISA Court.

The Act provides procedures for the government to "certify" the legality of an acquisition program, for the government to issue directives to providers to provide data or assistance under a particular program, and for the government and recipient of a directive to seek from the FISA Court, respectively, an order to compel provider compliance or relief from an unlawful directive. Providers receive costs and full immunity from civil suits for compliance with any directives issued pursuant to the Act.

A summary of key provisions follows. The Act empowers the Attorney General or Director of National Intelligence ("DNI") to authorize, for up to one year, the acquisition of communications concerning "persons reasonably believed to be outside the United States" if the Attorney General and DNI determine that each of five criteria has been met:

There are reasonable procedures in place for determining that the acquisition concerns persons reasonably believed to be located outside the United States;

The acquisition does not constitute electronic surveillance (meaning it does not involve solely domestic communications);

FISA Amendments Act of 2008

The FISA Amendments Act of 2008 passed by the United States Congress on July 9, 2008. The amendments added a new Title VII to the Act, which was slated to expire at the end of 2012 pending reauthorization; Congress subsequently extended the provision to December 31, 2017. The 2008 amendments gave telecoms immunity, increased the time allotted for warrantless surveillance, and adds provisions for emergency eavesdropping. On June 20, 2008, the House of Representatives passed the amendment with a vote of 293 to 129. It passed in the Senate 69 to 28 on July 9, 2008 after a failed attempt to strike Title II from the bill by Senator Dodd. On July 10, 2008, President Bush signed it into law.

2015 USA Freedom Act

First proposed in response to the disclosures of NSA contractor Edward Snowden, which revealed mass surveillance undertaken by the agency, the USA Freedom Act was intended by its sponsors to provide a "balanced approach" to intelligence gathering. The law restored and modified several provisions of the Patriot Act, overhauled the NSA, and required the U.S. government to undergo standard court procedures in order to gather data regarding suspicious activities.

FISA Amendments Reauthorization Act of 2017

After months of congressional hearings and some public controversy, following a short-term extension of three weeks, Congress passed a six-year extension of the FISA Amendments Act of 2008, which was signed into law in January 2018.

Beginning in late 2016, the government initiate efforts to persuade Congress to extend the surveillance authority in Title VII of the Act, which, pursuant to the 2008 and 2012 amendments, was slated to expire on December 31, 2017. Tom Cotton, a Republican Senator from Arkansas, introduced a bill to permanently extend the provisions of Title VII with no changes, but the bill did not advance, as many in Congress were seeking reforms to address privacy concerns. The U.S. House Committee on the Judiciary introduced an extension bill with significant proposed reforms, as did the U.S. House Permanent Select Committee on Intelligence, but ultimately a version of the extension with less significant reforms was advanced by U.S. Senate Select Committee on Intelligence, and in effect that version, through a complex series of amendments was ultimately enacted into law. The Senate agreed to a House amendment on January 18, 2018, and the President signed the legislation, S. 139, the FISA Amendments Reauthorization Act of 2017 (Public Law 115–118), into law on January 19, 2018.

FISA Section 702 allows the National Security Agency to conduct searches of foreigners' communications without any warrant. The process incidentally collects information from Americans. Section 702 of FISA more specifically "brings under FISC jurisdiction various intelligence-collection programs that target categories of non-Americans outside the United States. These foreigners also communicate with Americans, so the latter are incidentally intercepted." The FISA Amendments Reauthorization Act of 2017 extends Section 702 for six years, to December 31, 2023, and most notably included new restrictions on querying surveillance databases, prohibited the resumption of certain types of collection about a target that were not directly addressed to or from that target, unless Congress approved such collection within 30 days of having been notified of the resumption, and provided for additional reporting by the Executive Branch of surveillance activities. Many privacy and civil liberties advocates argued that the reforms enacted by the extension bill were inadequate, but their arguments were successfully opposed by the government.

The January 2018 law also made unauthorized removal and retention of classified information of the United States government a felony crime punishable by five years imprisonment and/or a fine.

2023 short-term reauthorization

Pursuant to the most recent reauthorization in 2017, Section 702 of FISA was set to expire by the end of 2023. At the beginning of 2023, several Biden administration officials began urging Congress to renew the provision, including National Security Advisor Jake Sullivan, Attorney General Merrick Garland, Director of National Intelligence, Avril Haines, and NSA Director Paul M. Nakasone. Federal authorities and other advocates have argued that Section 702 is critical to national security, whereas critics have reaffirmed ongoing concerns about privacy and civil liberties. Several lawmakers, particularly among House Republicans, have called for any reauthorization to be contingent on several reforms, including limiting the scope of who can be investigated, requiring a warrant for surveillance in all instances, and restricting the amount of time collected data can be stored. According to an expected clarification report on US espionage released on April 21, 2023, the number of times the FBI looked up information about Americans in a repository of information collected under Section 702 of the Foreign Intelligence Surveillance Act in 2022, decreased by more than 95% in 2022. The cuts follow a series of reforms the FBI made in the summer of 2021 to limit database searches for information about Americans who correspond with foreigners under surveillance. On December 14, 2023, Congress passed the National Defense Authorization Act, which included a short-term extension of Section 702 until April 19, 2024.

Reforming Intelligence and Securing America Act of 2024

On April 10, 2024, Donald Trump urged Congress to "kill FISA" based on claims of FBI surveillance during his 2016 presidential campaign, leading libertarian Republicans to join progressive Democrats in opposing Section 702's reauthorization on privacy-related grounds. To secure its passage, House Speaker Mike Johnson reduced the reauthorization to two years, rather than the typical five-year term, to allow Trump to veto a hypothetical 2026 reauthorization should he win the 2024 presidential election, which he did. After Congress rejected various privacy-related amendments to minimize the gap in Section 702 authorization, the Senate approved the bill by a 60–34 vote with bipartisan support, and President Joe Biden signed the two-year reauthorization on April 20, 2024.

2026 proposed reforms

As the end of the 2024 re-authorization came near, President Trump urged Congress to pass an 18-month extension for FISA without reforms. However, Republican privacy hawks and members of the House Freedom Caucus opposed this extension. On April 16, 2026, House Republicans announced an agreement for a five year extension of FISA with reforms. The agreement includes language that says the government may need a warrant to access information on Americans suspected to be acting on behalf of a foreign government, adds new criminal penalties for violating the law when officials use FISA to conduct searches, and expands the number of congressman who can review information on FISA.

However, 12 House Republicans, including privacy hawks who did not feel the agreement went far enough and House Intelligence Committee members who felt the reforms went too far, voted against the agreement. Thus the agreement failed to pass the House in a 200–220 vote. Afterwards, the House attempted a procedural vote to move forward a 18-month authorization without reforms. The procedural vote would also fail, with 20 Republicans, all privacy hawks, voting against it. Finally, with voting now in the early hours of the morning on April 17, the House passed a 10 day FISA authorization without reforms through unanimous consent.

On April 23, 2026, Republicans released a second agreement for a three year FISA extension with reforms. The proposed reforms include requring searches of Americans through FISA to be reviewed by the civil liberties protection officer at the Office of the Director of National Intelligence every month and requiring FBI agents to get attorney approval, instead of a supervisor, before running a search on Americans.

On April 17, the House and Senate passed H.R. 8322 which President Donald Trump signed the next day, extending authorization through April 30, 2026. On April 30, the Senate (by voice vote) and House (261-111) passed and President Donald Trump signed S. 4465, extending authorization through June 12. On June 2, Trump named Bill Pulte as Director of National Intelligence which Thom Tillis said was an "additional potential hurdle" to re-authorization. On June 11, the House voted against H.R. 9238 (218-198). On June 12, for the first time since Section 702 was enacted in 2008, it expired. While Section 702 was not reauthorized by Congress, FISC had recertified the program through March 2027.