Updated April 6, 2021
Foreign Intelligence Surveillance Act (FISA): An Overview
Introduction
In 2020, three provisions of FISA commonly associated
Congress enacted the Foreign Intelligence Surveillance Act
with the Patriot Act lapsed. These provisions, which are
(FISA) in 1978. FISA provides a statutory framework for
discussed in more detail below, are covered by a
government agencies to obtain authorization to gather
grandfather provision which permits them to remain in
foreign intelligence by means of (1) electronic surveillance,
effect with respect to investigations that existed before the
(2) physical searches, (3) pen registers and trap and trace
sunset date.
(PR/TT) devices (which record or decode dialing, routing,
addressing, or signaling information), or (4) the production
Foreign Intelligence Surveillance Courts
of certain business records. Agencies typically request
FISA established two specialized foreign intelligence courts
authorization for such activities from the Foreign
to approve the use of FISA investigative authorities. The
Intelligence Surveillance Court (FISC), a specialized court
FISC has original jurisdiction over FISA applications, while
created by FISA to act as a neutral arbiter of agency
the Foreign Intelligence Surveillance Court of Review
requests for FISA orders.
(FISCR) may hear appeals from the FISC. The FISC is
comprised of eleven federal judges, while the FISCR has
FISA’s History
three, all designated by the Chief Justice of the U.S.
Following revelations regarding widespread privacy
Supreme Court. While the FISC and FISCR normally hear
violations by the federal government during the Watergate
ex-parte submissions by the government, the courts also
era, Congress enacted FISA to establish guidelines for
have jurisdiction to hear challenges to FISA orders brought
government collection of foreign intelligence. FISA defines
by communications providers or other third parties.
“[f]oreign intelligence information” as information relating
Pursuant to the USA FREEDOM Act, the FISC and FISCR
to a foreign power or that generally concerns the ability of
have also designated seven individuals as eligible to serve
the United States to protect against international terrorism
as amici curiae.
or a potential attack by a foreign power or agent of a
foreign power. Though Congress initially limited FISA to
Electronic Surveillance and Physical Search Orders
regulating government use of electronic surveillance,
Titles I and III of FISA provide a framework by which
Congress subsequently amended FISA to regulate other
government agencies may seek a FISA order from the FISC
intelligence-gathering practices, such as physical searches,
authorizing electronic surveillance or physical searches for
the use of PR/TT devices, and compelling the production of
the purposes of collecting foreign intelligence. Before
certain types of business records.
submitting an application for such an order to the FISC,
federal officials must first obtain approval from the
Shortly after the 9/11 terrorist attacks, Congress enacted the
Attorney General, Acting Attorney General, Deputy
USA PATRIOT Act (Patriot Act) to “provid[e] enhanced
Attorney General, or if designated, the Assistant Attorney
investigative tools” to “assist in the prevention of future
General for National Security.
terrorist activities and the preliminary acts and crimes
which further such activities.” In particular, Section 215 of
Applications for electronic surveillance or physical search
the Patriot Act enlarged the scope of FISA’s business
orders must include the following: (1) the applicant’s
records provision. Following revelations that the National
identity; (2) information regarding the target’s identity if
Security Agency was engaged in the bulk collection of
known; (3) why the target may be searched or surveilled;
telephone metadata under Section 215 of the Patriot Act,
(4) a statement establishing a sufficient relationship
Congress enacted the USA FREEDOM Act, which
between the target and the search location; (5) a description
narrowed Section 215 and FISA’s PR/TT authority, and
of what will be searched or surveilled; (6) a description of
provided express authority for the FISC to appoint amici
the nature of the information sought or of the foreign
curiae to supplement its normally ex parte proceedings.
intelligence sought; (7) proposed minimization procedures;
(8) a discussion of how the search or surveillance will be
Other major changes to FISA include the FISA
carried out; and (9) a discussion of prior applications. If
Amendments Act of 2008 (FAA), codified as Title VII of
electronic surveillance is sought, applications must also
FISA. These amendments established procedures governing
discuss the duration of the surveillance.
the targeting—for intelligence-gathering purposes—of non-
U.S. persons located abroad. They also established statutory
The government must also include in its applications
and procedural protections regarding surveillance of U.S.
written certifications from specified executive branch
persons located outside the United States. Congress last
officials regarding the nature, purpose, and significance of
reauthorized Title VII of FISA in early 2018. Title VII will
the information to be sought. For the FISC to issue a FISA
be up for reauthorization in 2023.
order, the government must show probable cause that the
target of the surveillance is a foreign power or an agent of a
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Foreign Intelligence Surveillance Act (FISA): An Overview
foreign power, and that the target is using, or is about to
within seven days of the commencement of the
use, the facilities or places at which the search or
surveillance.
surveillance is directed. The FISC may approve such an
application if the above requirements are met and it
The Court of Justice of the European Union recently
determines that probable cause exists to believe that the
focused on Section 702 in a decision that invalidated a
target of the order is an agent of a foreign power.
program developed by the European Union (EU) and the
United States to facilitate cross-border transfers of personal
PR/TT Orders
data. That decision is discussed in more detail in CRS
Title IV of FISA provides procedures for the government to
Report R46724, EU Data Transfer Requirements and U.S.
apply to the FISC for orders authorizing the installation of
Intelligence Laws: Understanding Schrems II and Its
PR/TT devices to obtain foreign intelligence information.
Impact on the EU-U.S. Privacy Shield, by Chris D.
Additionally, if the information sought concerns a U.S.
Linebaugh and Edward C. Liu.
person, then a PR/TT device may only be used for
counterterrorism or counterintelligence. A PR/TT
The FAA also added Sections 703 and 704 of FISA, which
application must include (1) the identity of the federal
regulate other aspects of foreign intelligence collection.
officer seeking to use a PR/TT device; (2) the applicant’s
Section 703 grants jurisdiction to the FISC to “review an
certification that the information likely to be obtained is
application and to enter an order approving the targeting of
foreign intelligence information; and (3) a specific selection
a United States person reasonably believed to be located
term to be used as the basis of the PR/TT device. Unlike
outside the United States to acquire foreign intelligence
electronic surveillance or physical search orders, the FISC
information.” Section 704 mandates that, subject to certain
is not required to evaluate PR/TT applications under a
exceptions, the government must obtain a FISA order to
probable cause standard, and instead may approve an order
target a U.S. person located abroad when the government
after determining that it includes the required components.
also would have had to obtain a warrant to conduct
domestic surveillance of that person.
Business Record Orders
Title V of FISA establishes procedures for the government
Recently Expired Provisions
to apply for an order compelling certain businesses to
As discussed in more detail in CRS Report R40138, Origins
release records in their possession in connection with a
and Impact of the Foreign Intelligence Surveillance Act
foreign intelligence or counterterrorism investigation by the
(FISA) Provisions That Expired on March 15, 2020, by
FBI. The only types of businesses covered are common
Edward C. Liu, three provisions of FISA recently lapsed.
carriers, public accommodation facilities, storage facilities,
and vehicle rental facilities. An application for these
The first, Section 206 of the Patriot Act, amended FISA to
records must include specific and articulable facts giving
permit “roving wiretaps.” Specifically, if the surveillance
reason to believe that the person to whom the records
target is taking actions that “may have the effect of
pertain is an agent of a foreign power. Businesses that
thwarting” surveillance (such as using disposable cell
receive a FISA business records order are not permitted to
phone numbers or email addresses), the government could
disclose the receipt of such order to any other person except
use a single FISA order to conduct surveillance on new
as necessary to produce the required documents.
phone numbers or email addresses used by the target
without needing to apply to the FISC for a new order.
FISA Amendments of 2008
Title VII of FISA, added by the FAA, establishes additional
The second expired provision, Section 215 of the Patriot
procedures to acquire foreign intelligence information
Act enlarged the scope of business records that the
regarding persons who are believed to be outside of the
government could request to include “any tangible thing.”
United States. These provisions affect both U.S. persons as
Section 215 also eased the standard that an applicant must
well as non-U.S. persons, and are the only temporary
meet to obtain a FISA order compelling the production of
provisions of FISA, scheduled to sunset at the end of 2023.
“tangible thing[s].” As a result, an applicant for a FISA
order needed only to provide “a statement of facts showing
The FAA added Section 702 of FISA, which establishes
that there are reasonable grounds to believe that the tangible
procedures to collect foreign intelligence when
things sought are relevant to” a foreign intelligence,
communications travel through the United States’
international terrorism, or espionage investigation.
communications infrastructure. Under Section 702, the
government may compel electronic communications service
The final expired provision, Section 6001(a) of the
providers for a period of up to one year to assist in targeting
Intelligence Reform and Terrorism Prevention Act
non-U.S. persons reasonably believed to be located outside
(IRTPA), also known as the “lone wolf” provision,
the United States. The Attorney General (AG) and the
permitted surveillance of non-U.S. persons who are shown
Director of National Intelligence (DNI) must jointly certify
to be engaged in international terrorism, but without
that they authorize any such targeting, and the FISC must
requiring evidence linking those persons to an identifiable
approve any program under Section 702 before its
foreign power or terrorist organization.
implementation. If time does not permit submitting the
requisite certification to the FISC before authorization, the
Edward C. Liu, Legislative Attorney
AG and DNI must submit their certification to the FISC
IF11451
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Foreign Intelligence Surveillance Act (FISA): An Overview


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