Foreign Intelligence Surveillance Act

The Foreign Intelligence Surveillance Act of 1978 (Public Law 95-511, 92 Stat. 1783) is "An Act To authorize electronic surveillance to obtain foreign intelligence information." It was introduced as S. 1566 and signed on October 25, 1978, during the presidency of Jimmy Carter.¹

Structure

Title I, "Electronic Surveillance Within the United States for Foreign Intelligence Purposes," contained eleven sections: definitions (101); authorization by the President through the Attorney General without a court order in a limited class of cases (102); designation of judges (103); applications (104); issuance of orders (105); use of information (106); reports of electronic surveillance (107); congressional oversight (108); penalties (109); civil liability (110); and authorization during time of war (111). Title II made conforming amendments to chapter 119 of title 18 of the United States Code, and Title III set the effective date.¹

The Court

Section 103(a) directed the Chief Justice of the United States to "publicly designate seven district court judges from seven of the United States judicial circuits who shall constitute a court which shall have jurisdiction to hear applications for and grant orders approving electronic surveillance anywhere within the United States." A judge who denied an application was to give a "written statement of each reason for his decision," and no other judge of the court could hear the same application. Section 103(b) created a court of review of three judges, one of them presiding, with jurisdiction over denials; the government's appeal from that court lay "under seal to the Supreme Court." Under section 103(d) each judge served "for a maximum of seven years and shall not be eligible for redesignation," with initial terms staggered so that one of the seven expired each year. The body so created is the Foreign Intelligence Surveillance Court.¹

Orders

Under section 105(a) a judge entered an ex parte order approving surveillance on findings that "the President has authorized the Attorney General to approve applications" and that there was "probable cause to believe" that "the target of the electronic surveillance is a foreign power or an agent of a foreign power." A proviso barred treating any United States person as a foreign power or agent "solely upon the basis of activities protected by the first amendment to the Constitution."¹

Sections 105(e) and (f) allowed the Attorney General to authorize emergency surveillance without an order when he "reasonably determines" that an emergency exists, provided that a judge was informed at the time and an application made "as soon as practicable, but not more than twenty-four hours" later. Without an order in that time the surveillance had to end, and nothing obtained from it could be used in any proceeding.¹

Section 106(c), codified at 50 U.S.C. 1806(c), requires notice: "Whenever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding" against an aggrieved person "any information obtained or derived from an electronic surveillance of that aggrieved person," it must first "notify the aggrieved person and the court or other authority in which the information is to be disclosed or used."¹ Notice under the provision figured in United States v. Hasbajrami and in the prosecution arising from the 2023 Baltimore Power Grid Conspiracy.

The President's Surveillance Program

President George W. Bush formally authorized in October 2001 the warrantless surveillance program that the inspectors general later reviewed as the President's Surveillance Program (PSP). Attorney General John Ashcroft "approved the first Presidential Authorization for the PSP as to 'form and legality' on the same day that he was read into the program." The first legal opinion of the Office of Legal Counsel supporting the program followed on November 2, 2001, written by Deputy Assistant Attorney General John Yoo, the only Office of Legal Counsel official read into the program from its start until his departure in May 2003.²

Yoo's memorandum acknowledged that FISA "purports to be the exclusive statutory means for conducting electronic surveillance for foreign intelligence," but argued that "such a reading of FISA would be an unconstitutional infringement on the President's Article II authorities." He described the statute as a "safe harbor for electronic surveillance" that "cannot restrict the President's ability to engage in warrantless searches that protect the national security."²

Title III of the FISA Amendments Act of 2008 required a joint review of the program by the inspectors general of the Department of Justice, the Department of Defense, the Central Intelligence Agency, the National Security Agency and the Office of the Director of National Intelligence. Their unclassified report, number 2009-0013-AS, was dated July 10, 2009, and signed by Glenn A. Fine of Justice, Gordon S. Heddell (acting) of Defense, Patricia A. Lewis (acting) of the CIA, George Ellard of the NSA and Roslyn A. Mazer of the Director of National Intelligence's office.²

Amendments

The USA PATRIOT Act (Public Law 107-56) enlarged the court from seven to eleven district judges, "of whom no fewer than 3 shall reside within 20 miles of the District of Columbia." The Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108-458) replaced the Director of Central Intelligence with the Director of National Intelligence in the court's record-keeping provision; the FISA Amendments Act of 2008 (Public Law 110-261) restructured the court's provisions and added an en banc procedure, and its Title VII added the collection authority codified at 50 U.S.C. 1881a, known as FISA Section 702;³ the USA FREEDOM Act of 2015 (Public Law 114-23) added provisions for amicus curiae; and the Reforming Intelligence and Securing America Act of 2024 (Public Law 118-49) added a transcription requirement.⁴