Federal Internet Law & Policy
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Foreign Intelligence Surveillance Act (FISA)

Dont be a FOOL; The Law is Not DIY

cThis article is out of date (actually, there's a secret article --- I just cant tell you about it).

US Govt surveillance conducted for a foreign intelligence purpose of US citizens and non citizens, domestically or abroad.

"When the govt conducts electronic surveillance to gather info for eventual use as evidence at a criminal proceeding, the govt actions are law enforcement and fall within the reach of title III. On the other hand, when the intent is to collect foreign intelligence or to prevent an action from occurring that would jeopardize national security, it is intelligence and FISA applies." Foreign governments includes groups engaged in international terrorism and foreign based organizations.

50 U.S.C. § 1803


Derived From: CRS 2003 p. 6

"When Congress passed Title III there was some question over the extent of the President’s inherent powers to authorize wiretaps – without judicial approval – in national security cases. As a consequence, the issue was simply removed from the Title III scheme.14 After the Court held that the President’s inherent powers were insufficient to excuse warrantless electronic eavesdropping on purely domestic threats to national security, United States v. United States District Court, 407 U.S. 297 (1972), Congress considered it prudent to augment the foreign intelligence gathering authority of the United States with the Foreign Intelligence Security Act of 1978, 92 Stat. 1783, 50 U.S.C. 1801 - 1811. The Act provides a procedure for judicial review and authorization or denial of wiretapping and other forms of electronic eavesdropping for purposes of foreign intelligence gathering. "

Derived From: 1985 ECPA Report p 20

"This act establishes legal standards and procedures for the use of electronic surveillance in collecting foreign intelligence and counter-intelligence within the United States. This was the first legislative authorization for foreign intelligence wiretapping and other forms of electronic surveillance.’ The scope of this act is broader than Title III. FISA defines electronic surveillance broadly to include four categories: 1) wiretaps, including not only voice communications but also teleprinter, telegraph, facsimile, and digital communications; 2) radio intercepts; 3) monitoring devices, which may include microphone eavesdropping, surreptitious closed circuit television (CCTV) monitoring, transmitters that track movements of vehicles, and other techniques; and 4) watch listing. However, the application of FISA protection in the latter three categories is limited to those circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes. The act created the Foreign Intelligence Surveillance Court, composed of seven Federal District Judges, to review and approve surveillance capable of monitoring U.S. persons (defined as U.S. citizens, lawfully admitted permanent resident aliens, and domestic organizations or corporations that are not openly acknowledged to be directed and controlled by foreign governments) in the United States. The procedural requirements of FISA apply only to electronic surveillance for foreign intelligence purposes, but the criminal penalties appear to apply more broadly to include law enforcement surveillance.


Citizen: Must receive court order to intercept communications "If govt wishes to undertake electronic surveillance of US citizen or permanent resident alien for intelligence purposes, FISA requires the agent to obtain a court order first issued by the FISC. ... FISC proceedings are conducted in secrecy to protect national security interests. "in addition to securing a warrant from the FISC, a government agent seeking to conduct electronic surveillance of a US person must follow certain minimization procedures established by the attorney general." 50 U.S.C. § 1801.

Non Citizen: Surveillance up to one year without court order, attorney general must certify target is only foreign powers and that investigator will follow required minimization procedures. "The attorney general must submit a certification to this effect to the Foreign Intelligence Surveillance Court butt this certification remains sealed unless the govt chooses to request a court order or the target of the surveillance challenges the legality of the surveillance. unlike title III surveillance targets, however, the subjects of FISA searches do not receive notice of the surveillance upon completion of the monitoring, so FISA targets may never learn that their privacy interests have been compromised. FISA allows surveillance conducted per attorney general cert (as opposed to court order) for up to one year. If govt wishes to conduct surveillance of foreign power for more than one year, the gov must apply for a FISC court order "

Application must include

"Statement of facts and circumstances to justify belief that: Target a foreign power or agent thereof; and each of the facilities at which surveillance directed is being used or about to be used by foreign power or agent thereof -

"Statement of proposed minimization procedures

"Certification that significant purpose is to obtain foreign intelligence information

"Certification, and statement of basis therefore, that information cannot reasonably be obtained by normal investigative techniques."

Order Granted:

"To issue a warrant under FISA, a FISC judge must find probable cause to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power. Since FISA imposes a lower probable cause threshold than Title III for issuance of a warrant, info obtained under FISC warrant for foreign intelligence purposes cannot be used for domestic law enforcement as a matter of constitutional law.... The USA Patriot Act however changes this standard and permits warrants to issue if "a significant purpose of the surveillance is to obtain foreign intelligence info. 50 U.S.C. § 1804(a)(7)(B).

No notice unless communications introduced in criminal proceeding

Can also do pen register and trap and trace per FISA

Foreign intelligence gathering must be a "significant purpose" for the request for the FISA surveillance or physical search order, 50 U.S.C. 1804(a)(7)(B), 1823(a)(7)(B).

Appellate Review

US v. Wright, Dist. Court, D. Massachusetts 2016: ("Although some courts have noted that "FISA warrant applications are subject to `minimal scrutiny by the courts,' . . . upon . . . challenge," United States v. Abu-Jihaad, 630 F.3d 102, 130 (2d Cir. 2010) (quoting United States v. Duggan, 743 F.2d 59, 77 (2d Cir. 1984)), others have applied a heightened scrutiny — reviewing the FISA Court's probable cause determinations de novo, see, e.g., United States v. Turner, 840 F.3d 336, 340 (7th Cir. 2016); United States v. Rosen, 447 F. Supp. 2d 538, 545 (E.D. Va. 2006) . The reasoning for applying a more stringent standard is persuasive, "especially given that the review [of a FISA warrant application] is ex parte and thus unaided by the adversarial process." Rosen, 447 F. Supp. 2d at 545 (collecting Fourth Circuit precedents applying de novo review to FISA materials). The certifications in the FISA application(s), however, are presumed valid. See id.")


The Foreign Intelligence Surveillance Act of 1978 ("FISA"), Pub.L. No. 95-511, 92 Stat. 1783 (1978) (codified as amended at 50 U.S.C. §§ 1801 et seq.


Privacy and Civil Liberties Oversight Board

Fed Reg: "The Privacy and Civil Liberties Oversight Board is an advisory body to assist the President and other senior Executive branch officials in ensuring that concerns with respect to privacy and civil liberties are appropriately considered in the implementation of all laws, regulations, and executive branch policies related to war against terrorism.

"Recommended by the July 22, 2004, report of the National Commission on Terrorist Attacks Upon the United States, the Privacy and Civil Liberties Oversight Board was established by the Intelligence Reform and Terrorism Prevention Act of 2004. It consists of five members appointed by and serving at the pleasure of the President. The Board is part of the White House Office within the Executive Office of the President and supported by an Executive Director and staff.

"The Board advises the President and other senior executive branch officials to ensure that concerns with respect to privacy and civil liberties are appropriately considered in the implementation of all laws, regulations, and executive branch policies related to efforts to protect the Nation against terrorism. This includes advising on whether adequate guidelines, supervision, and oversight exist to protect these important legal rights of all Americans. In addition, the Board is specifically charged with responsibility for reviewing the terrorism information sharing practices of executive branch departments and agencies to determine whether guidelines designed to appropriately protect privacy and civil liberties are being followed, including those issued by the President on December 16, 2005. In the course of performing these functions within the executive branch, the Board seeks the views of private sector, non-profit and academic institutions, Members of Congress, and all other interested parties and individuals on these issues.




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