March 10, 2020
Foreign Intelligence Surveillance Act (FISA): An Overview
Introduction
Patriot Act. In 2015, Congress enacted the USA
Congress enacted the Foreign Intelligence Surveillance Act
FREEDOM Act, which circumscribed the government’s
(FISA) in 1978. FISA provides a statutory framework for
ability to obtain telephone records as part of its foreign
government agencies to obtain authorization to gather
intelligence gathering operations.
foreign intelligence by means of (1) electronic surveillance,
(2) physical searches, (3) pen registers and trap and trace
Other major changes to FISA include the FISA
devices (which record or decode dialing, routing,
Amendments Act of 2008 (FAA), codified as Title VII of
addressing, or signaling information), or (4) the production
FISA. These amendments established procedures governing
of business records and other tangible things. Agencies
the targeting—for intelligence-gathering purposes—of non-
typically request authorization for such activities from the
United States persons located abroad. They also established
Foreign Intelligence Surveillance Court (FISC), a
statutory and procedural protections regarding surveillance
specialized court created by FISA to act as a neutral arbiter
of U.S. persons located outside the United States. Congress
of agency requests for FISA orders.
last reauthorized Title VII of FISA in early 2018. Title VII
will be up for reauthorization in 2023.
FISA’s History
Following revelations regarding widespread privacy
“Traditional” FISA
violations by the federal government during the Watergate
FISA Sections 1804, 1805, 1823, and 1824, otherwise
era, Congress enacted FISA to establish guidelines for
known as the “traditional” FISA provisions, provide a
government collection of foreign intelligence. FISA defines
framework by which government agencies must seek a
“[f]oreign intelligence information” as information relating
FISA order to engage in surveillance or conduct physical
to a foreign power or that generally concerns the ability of
searches for purposes of collecting foreign intelligence.
the United States to protect against international terrorism
Under FISA, federal officials seeking an order from the
or a potential attack by a foreign power or agent of a
FISC must first obtain approval from the Attorney General,
foreign power. Though Congress initially limited FISA to
Acting Attorney General, Deputy Attorney General, or if
regulating government use of electronic surveillance,
designated, the Assistant Attorney General for National
Congress subsequently amended FISA to regulate other
Security. They must then submit an application to the FISC.
intelligence-gathering practices, such as physical searches,
the use of pen registers and trap and trace devices, and
FISC applications must include the following: (1) the
compelling the production of certain types of business
applicant’s identity if known; (2) information regarding the
records.
target’s identity; (3) why the target may be searched or
surveilled; (4) a statement establishing a sufficient
Shortly after the 9/11 terrorist attacks, Congress enacted the
relationship between the target and the search location; (5)
USA PATRIOT Act (Patriot Act) to “provid[e] enhanced
a description of what will be searched or surveilled; (6) a
investigative tools” to “assist in the prevention of future
description of the nature of the information sought or of the
terrorist activities and the preliminary acts and crimes
foreign intelligence sought; (7) proposed minimization
which further such activities.” Section 215 of the Patriot
procedures; (8) a discussion of how the search or
Act amended FISA to enlarge the scope of FISA’s business
surveillance will be carried out; and (9) a discussion of
records provision. Section 206 of the act authorized the
prior applications. If electronic surveillance is sought,
government to seek “roving” wiretaps. And in 2004,
applications must also discuss the duration of the
Congress amended FISA to simplify the evidentiary
surveillance.
showing necessary to obtain a FISA order to investigate
non-U.S. persons suspected of engaging in international
FISC applications must be accompanied by written
terrorism. All three provisions are temporary and have been
certifications from specified executive branch officials
reauthorized several times. Most recently, in late 2019,
regarding the nature, purpose, and significance of the
Congress extended all three provisions through March 15,
information to be sought. For the FISC to issue a FISA
2020. Congress currently is considering whether to
order, the government must show probable cause that the
reauthorize these provisions again. If they are allowed to
target of the surveillance is a foreign power or an agent of a
expire, grandfather clauses permit them to remain effective
foreign power, and that the target is using, or is about to
with respect to investigations that began, or potential
use, the facilities or places at which the search or
offenses that took place, before the expiration date.
surveillance is directed.
In the summer of 2013, news reports revealed that the
Section 206
National Security Agency (NSA) was engaged in the bulk
Section 206 of the Patriot Act amended FISA to permit
collection of telephone metadata under Section 215 of the
multipoint, or “roving,” wiretaps by adding flexibility to the
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Foreign Intelligence Surveillance Act (FISA): An Overview
degree of specificity with which an applicant for a FISA
Section 6001(a) of the Intelligence Reform and
order must identify the location or facility subject to
Terrorism Prevention Act (IRTPA)
electronic surveillance. Specifically, if the surveillance
In 2004, Congress amended FISA as part of the Intelligence
target is taking actions that “may have the effect of
Reform and Terrorism Prevention Act (IRTPA) to change
thwarting” surveillance (such as using disposable cell
the rules regarding the types of individuals who may be
phone numbers or email addresses), the government may
targets of FISA-authorized searches. Also known as the
use a single FISA order to conduct surveillance on new
“lone wolf” provision, Section 6001(a) of the IRTPA
phone numbers or email addresses used by the target
permits surveillance of non-U.S. persons who are shown to
without needing to apply to the FISC for a new order.
be engaged in international terrorism, but without requiring
However, the FISC must be notified within 10 days of the
evidence linking those persons to an identifiable foreign
surveillance being directed at such new facilities.
power or terrorist organization.
Section 215
FISA Amendments of 2008
Section 215 of the Patriot Act enlarged the scope of
Title VII of FISA, added by the FAA, establishes additional
materials that the government can seek under FISA to
procedures to acquire foreign intelligence information
include “any tangible thing.” Section 215 also eased the
regarding persons who are believed to be outside of the
standard that an applicant must meet to obtain a FISA order
United States. These provisions affect both U.S. persons as
compelling the production of “tangible thing[s].” Thus, an
well as non-U.S. persons, and are scheduled to sunset in
applicant for a FISA order must now provide “a statement
2023.
of facts showing that there are reasonable grounds to
believe that the tangible things sought are relevant to” a
The FAA added Section 702 of FISA, which establishes
foreign intelligence, international terrorism, or espionage
procedures to collect foreign intelligence when
investigation.
communications travel through the United States’
communications infrastructure. Under Section 702, the
Following the 2013 disclosure that the NSA had relied on
government may compel the assistance of electronic
Section 215 to engage in the bulk collection of telephone
communications service providers for a period of up to one
metadata, Congress amended Section 215 in the USA
year in targeting non-U.S. persons reasonably believed to
FREEDOM Act to require the use of a “specific selection
be located outside the United States. The Attorney General
term” (SST) to “limit collection to the greatest extent
(AG) and the Director of National Intelligence (DNI) must
reasonably practicable.” An SST was defined as “a term
jointly certify that they authorize any such targeting, and
that specifically identifies a person, account, address, or
the FISC must approve any program under Section 702
personal device, or any other specific identifier.” These
before its implementation. If time does not permit
amendments also prohibited the government from targeting
submitting the requisite certification to the FISC before
Section 215 orders at broad geographic regions (such as a
authorization, the AG and DNI must submit their
state or zip code) or at communications service providers
certification to the FISC within seven days of the
(such as Verizon or AT&T).
commencement of the surveillance.
Amended Section 215 established a slightly relaxed
The FAA also added Sections 703 and 704 of FISA, which
standard for obtaining telephone metadata on an ongoing
regulate other aspects of foreign intelligence collection.
basis in international terrorism investigations. Whereas a
Section 703 grants jurisdiction to the FISC to “review an
standard order under Section 215 would compel the
application and to enter an order approving the targeting of
production of only those records that are responsive to an
a United States person reasonably believed to be located
approved SST, an order seeking telephone records for an
outside the United States to acquire foreign intelligence
international terrorism investigation can also be used to
information.” Section 704 mandates that, subject to certain
produce a second set of telephone records that are
exceptions, the government must obtain a FISA order to
connected to one of the records that was directly produced
target a U.S. person located abroad when the government
by the SST. For example, if Alice called Bob, and Bob also
also would have had to obtain a warrant to conduct
called Charles, then a single Section 215 order that used
domestic surveillance of that person.
Alice’s phone number as an SST could obtain records of
both Alice’s call to Bob and Bob’s call to Charles. In order
Joshua T. Lobert, Legislative Attorney
to employ this process, the government must first
IF11451
demonstrate to the FISC that there is a “reasonable
articulable suspicion” that the SST is associated with a
foreign power, or an agent of a foreign power, who is
engaged in international terrorism.


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Foreign Intelligence Surveillance Act (FISA): An Overview


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