What is FISA? Here Are 4 Things to Know About the Controversial Spy Law
Surveillance has become a big issue in America and the world over the last two decades.
Since the September 11 attacks of 2001, the US government has done its best to gather as much intelligence as it can about clandestine, foreign operations that may be a threat to national security.
Surveillance, by its very definition, is highly intrusive. US citizens have the right to privacy, and this is protected by legislation.
One of the most famous and controversial laws in charge of protecting such privacy is the Foreign Intelligence Surveillance Act (FISA).
Set in 1978, it has over the years expanded its mandate as amendments were made to accommodate changing circumstances.
Such amendments include the controversial Patriot Act which was passed in 2001, following the September 11 terrorist attacks.
Another famous amendment is the USA Freedom Act, passed in 2015, in the wake of the damning 2013 Edward Snowden leaks.
In 2001, amendments were inspired by external attacks. In 2015, amendments were inspired by a public outrage after Edward Snowden’s Leaks revealed that the NSA was collecting Americans’ phone data in bulk.
With such major concerns about data privacy, it stands to reason that any American would want to understand what FISA and the other such acts are all about.
That’s a lot of information to wade through. To make your work easier, we decided to gather all the necessary information and present it in one easy-to-read article.
WHAT IS FISA?
FISA stands for Foreign Intelligence Surveillance Act. It is a US federal law which was passed in 1978, with the mandate of establishing the procedures to be taken in the event of physical or electronic surveillance, when collecting intelligence information about persons suspected of being foreign spies or being involved in terrorism.
In May 18, 1977, Senator Ted Kennedy introduced the Foreign Intelligence Surveillance Act, sponsoring the bill together with 8 other senators, and on 25 October 1978 President Jimmy Carter passed it into law.
FISA came about as a result of investigations by the Senate Committees that questioned the legality of domestic intelligence agencies.
This grew from two separate investigations by Sam Erwin and Frank Church into how President Richard Nixon’s used federal resources, including law enforcement agencies, to spy on activist and political groups.
The intention of the act was to provide congressional and judicial oversight of the US government’s surveillance activities of foreign individuals or entities in the US, while still maintaining the necessary secrecy required to protect national security.
4 THINGS TO KNOW ABOUT FISA
The FISA law established and authorized the Foreign Intelligence Surveillance Court (FISC or FISA Court).
FISC has the mandate of governing requests made for surveillance warrants against foreign secret agents and spies in the United States by intelligence agencies and federal law enforcement.
These kinds of requests are most often made by the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI).
The FISA law and its court were created based on the recommendations of the US Senate’s Church Committee. The FISA law has been amended several times since the September 11 terrorist attacks.
The court was originally (from 1978 to 2009) housed on the sixth floor of the Robert F. Kennedy Department of Justice Building, but from 2009 onwards it relocated to the E. Barrett Prettyman United States Courthouse located in Washington, D.C.
Compositions of the FISC
At its founding, the court consisted of seven federal district judges, all appointed by the US Chief Justice and each serving a term of seven years.
A new judge was appointed each year. The USA PATRIOT Act of 2001 increased the number from seven judges to eleven, requiring that at least three FISC judges live within twenty miles of the District of Columbia.
A FISC judge cannot be appointed more than once.
No judge can be appointed to the FISA court as well as the Court of Review. In appointing the FISC judges, the Chief Justice does not seek confirmation or get oversight from the US congress.
Critics have seen this as giving too much power to one person which can lead to bias.
They feel that it creates a situation where the Chief Justice will appoint like-minded judges and consequently create a court that has no diversity.
Operation of the Court
Due to the sensitivity of its work, the court has to uphold a high level of secrecy. It is a “secret court” and its hearings are closed to the public.
Though the records of the court proceedings are kept, they are not available to the public.
However there have been occasions where copies of some records have been availed to the public, but with classified information redacted.
The classified nature of the court’s proceedings means that in most cases only lawyers licensed to practice in front of the US government can appear before the FISC.
Furthermore, owing to the nature of the matters presented before this court hearings can take place at any time of the day, night, weekday, or weekend.
For that reason, at least one FISC judge must be “on call” at all times.
Criticisms Against the Court
Since the 2011 September 11 attacks, criticism for the FISC has grown.
One of the main reasons for the criticism is the fact that the FISC sits ex parte.
Only the judge and the government are present at the hearings.
Furthermore, the court has been criticized for rejecting very few requests – critics of the court have called it a “rubber stamp”.
Responding to accusations of the court being a rubber stamp FISA Court president Reggie B. Walton said that the annual statistics Congress receives from the AG, and frequently cited in press reports to point out the court’s high approval rating, do not show the fact that a lot of these applications have to undergo alterations before the final submission.
He said that some do not even get submitted after it has been indicated that a judge would not approve them.
Walton further stated that due to the Court’s questions and demands, the government had revamped 24.4% of its requests in the period between July 1, 2013 and September 30, 2013.
A 2003 Senate Judiciary Committee tasked with investigating the implementation failures of FISA concluded that while it was necessary to keep some individual FISA cases secret, this secrecy had been extended to even the most basic procedural and legal aspects of the FISA that should not be secret.
The committee concluded that this unnecessary secrecy caused deficiencies that made it difficult to properly investigate implementation of FISA.
The committee advised that more information should be availed to the public or to congress – for instance, unclassified opinions and the operating rules of the FISA Court and the Court of Review.
FISCR is the acronym for the Foreign Intelligence Surveillance Court of Review. It is a US federal court with the mandate of reviewing denied applications for electronic surveillance warrants (known as FISA warrants). The FISCR, just like the FISC, was established by the FISA Act in 1978.
It is composed of a panel of three judges. As is with the case with the FISC, request to the FISCR are only made by the federal government.
Briefs may however be submitted by other parties in the role of amici curiae.
As with the FISC, the records the proceedings are held in secret and the records kept classified.
Copies of proceedings may be occasionally made public, but sensitive information has to be redacted. The government has the right to appeal the FISCR’s decisions to the Supreme Court.
The FISA Act does not include any provision for review/appeal of a granted application, only a denial.
The reason is because in both the FISC and the FISCR courts, the government is the only party before the court.
The Court of Review consists of district or appellate federal judges, all appointed by the Chief Justice of the United States to serve seven-year terms.
The terms are staged in such a way that there is always at least two years between consecutive appointments. Judges can only be appointed once to either the FISC or the FISCR.
The first time for the FISCR to be called into session was in 2002 in a case known as In re: Sealed Case No. 02-001.
In this case, the FISC had granted a surveillance warrant, but with restrictions on how the warrant could be used.
The FISC stated that any evidence collected by the FBI under the warrant could not be used in criminal cases.
When the matter came to the Court of Review, it ruled that the restrictions violated both FISA and the USA PATRIOT Act, that there was no constitutional requirement for the restrictions.
On August 2008, in a heavily redacted opinion known as In re Directives [redacted text] Pursuant to Section 105B of the FISA, which was released on the fifteenth of January, 2009, the FISCR affirmed the constitutionality of the Protect America Act of 2007.
An application for a surveillance warrant under FISA is made before one of the judges of the FISC. The FISC may allow amici curiae (third parties who submit briefs to the court).
In case the Attorney General determines the situation is an emergency, he or she may authorize emergency employment of electronic surveillance prior to getting necessary authorization from the FISC.
This is provided the AG or the AG’s designee notifies a FISC judge at the time of authorization and applies for a warrant the soonest possible – but within less than seven days of issuing authorization for the surveillance.
If one FISC judge denies the application, the federal government is not permitted to make the same application to another FISC judge.
It is, however, allowed to appeal to the United States Foreign Intelligence Surveillance Court of Review. It is a rare event for such appeals to occur – the first one was in 2002, 24 years after the founding of the court.
It is also highly rare for the FISC to turn down a FISA warrant request. In the 25 years between 1979 and 2004, the FISC granted 18,742 warrants but only rejected four. Of all the accepted requests, fewer than 200 required any modification before being approved.
Almost all the modified requests were in 2003 and 2004. The four rejected ones all happened in 2003, and even then they were all partially granted after they were submitted for reconsideration.
From 2004 to 2012, just eight years, The FISC granted 15,100 warrants and only rejected seven.
AMENDMENTS TO THE FISA ACT
The FISA act has undergone a number of amendments. In 2001, FISA was amended by the USA PATRIOT Act.
The main change was to include terrorism on behalf of groups not backed by a foreign government.
In August 5, 2007, an overhaul of FISA known as the Protect America Act of 2007 was signed into law, expiring on February 17, 2008. In July 9, 2008, the US Congress passed the FISA Amendments Act of 2008.
It added a new Title VII to the Act, which was supposed to expire at the end of 2012 but was extended to December 31, 2017 by Congress. In 2017, Congress passed a six-year extension of the FISA Amendments Act of 2017.
The USA PATRIOT Act of 2001
It is an Act of the US Congress and is commonly referred to as the “Patriot Act”.
President George W. Bush signed it into law on October 26, 2001. The title “USA PATRIOT Act of 2001” is, in fact, an acronym, standing for: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001”.It was a 23-year old Congressional staffer, Chris Kyle, who coined the acronym.
The legislation came as a response to the September 11 attacks and the 2001 anthrax attacks. Congress passed the Patriot Act with the aim of strengthening National Security.
In Title II of the Patriot Act, it made amendments to FISA. Title II is titled Enhanced Surveillance Procedures.
It covers the surveillance of persons suspected of being terrorists, those who are suspected of computer fraud, and foreign agents engaging in clandestine activities.
Many of the highly criticized, controversial aspects of the Patriot Act are in Title /II. Title II gives government agencies the liberty to gather “foreign intelligence information” not just from non-US citizens, but also US citizens.
Title II also made changes to FISA, making this collection of foreign intelligence information the significant purpose of FISA-based surveillance. Previously, it had been the primary purpose.
It is a subtle change in definition, with the intention of removing a legal “wall” that existed between criminal investigations and surveillance with the intention of collecting foreign intelligence.
This legal wall often hampered investigations in cases where criminal and foreign surveillance had an overlap. The FISCR, however, found that the existence of this wall was a long-held misinterpretation by government agencies.
It also removed statutory requirement that the government should prove a FISA surveillance target was a non-US citizen and agent of a foreign power.
It did, however, require that investigations should not be undertaken on citizens carrying out First Amendment-protected activities.
Furthermore Title II expanded the duration of FISA physical search and surveillance orders. Title II provided authorities with the liberty to share information gathered before a federal grand jury with other agencies. Title II also broadened the scope and availability of surveillance and wiretapping orders.
Several provisions of the Patriot Act have expired. Due to lack of Congressional approval, parts of the Act expired on June 1, 2015.
However, on June 2, 2015, with the passing of the USA Freedom Act, these expired parts were restored and renewed through 2019.
Protect America Act of 2007
President George W. Bush signed the Protect America Act of 2007 into law on August 5, 2007.
It is one of the controversial amendments to FISA.
The Protect America Act removed the requirement that government should have a warrant to conduct surveillance of foreign secret agents “reasonably believed” to be outside the US.
As a substitute for the warrant requirement, the bill allowed a system of National Security Agency internal controls.
It also required that the FISA court should be notified of any warrantless surveillance not more than 72 hours after such surveillance was authorized.
Furthermore the bill allowed the government to monitor Americans communicating with any foreign targets of a US terrorism investigation.
Such surveillance could happen without requiring a court order or oversight, so long as it did not target a particular person “reasonably believed to be” in the US.
In addition, the government did not need a FISA warrant to monitor any foreign-related communication, even if it involved a US location, either on the receiving or sending end. It also did not need a warrant to monitor foreign-foreign communications.
While the FISA Amendments of 2008 repealed the Protect America Act, it reauthorized many of its provisions in Title VII of FISA.
Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008
The short title is FISA Amendments Act of 2008. It is a Congressional Act that amended FISA. This act is the legal basis for many surveillance programs revealed by famous whistleblower Edward Snowden in 2013.
The FISA Amendments Act added a new Title VII to FISA. Title VII contained many provisions which were similar, though not identical, to the provisions of the Protect America Act of 2007.
The latter had expired earlier in 2008.
While the Title VII provisions were set to expire on December 31, 2012, the US Senate gave the FISA Amendments Act an extension of five years.
On January 19, 2018, President Donald Trump signed the FISA Amendments Reauthorization Act of 2017 into law.
This act has many controversial provisions.
For instance, it gave telecommunication companies the immunity for cooperation with authorities. It released them from liabilities, so that no action can be brought against them in a court.
Previously, warrantless surveillance, as introduced by the Protect America Act of 2007, could be undertaken for not more than 72 hours.
The FISA Amendments Act extended that to 7 days, provided the FISC is given notice and an application and specific officials sign the emergency notification.
The target of this warrantless surveillance must be an American located outside the country with probable cause that they are a foreign power’s agent.
The Act also featured provisions that curtailed government power.
For instance, prohibiting government from invoking war powers to supersede surveillance rules.
It also prohibited the targeting of a foreigner with the intention of listening in on an American’s calls or e-mails without first getting court approval.
USA FREEDOM Act of 2015
The USA FREEDOM Act of 2015 is an acronym for Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015.
This law was enacted on June 2, 2015. It restored, though in a modified form, several provisions contained in the Patriot Act. The Patriot Act had expired the previous day.
This act introduced new limits on bulk collection of telecommunication metadata on citizens of the US by intelligence/ agencies such as the NSA. It also reauthorized roving wiretaps and the tracking of lone wolf terrorists.
The act was originally inspired by the 2013 Edward Snowden leaks of classified NSA memos that described bulk data collection programs.
After these disclosures, many members of Congress felt that restoring the trust of the public would need legislative changes.
Supporters of the act stated that it was going to end bulk collection of Americans’ metadata by the NSA, terminate the secret laws created by the FISC, and introduce a “Special Advocate” who would represent the public and privacy matters.
Opponents, on the other hand, pointed out that the act did, in fact, allow bulk collection of citizens’ metadata by phone companies.
This data was accessible to the NSA.
They also pointed out that the act does not address other laws which curtailed on the Fourth Amendment rights of Americans.
The FISA act was formulated with the aim of allowing the government to conduct surveillance on people it believed were a threat to national security.
However, this act has always attracted a lot of controversy because of the potential for the act to be used to justify surveillance of and collection of information from American citizens.
While there is definitely so much more about the FISA than covered in this article, we hope that it has shed some more light on this law and helped you understand some of your rights regarding the act.
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