reach, it now seems ironic, that FISA was born in the aftermath of Church Committee’s exposure of uncontrolled domestic spying by the FBI and the CIA.
208
As amended, FISA sets forth a framework of standards and procedures for the
government’s use of electronic surveillance,
209 physical searches, business records,
as well as pen registers and trap and trace devices.
210 FISA established a special
court that consists of eleven federal district court judges. The court meets in secret
and primarily conducts ex parte proceedings to review applications to authorize
surveillance applications.
211 While the government must establish that probable
cause exists that the party to be monitored is a “foreign power” or an “agent of a
foreign power”, the government need not show that the agent is engaged in criminal
activity.
212 Government agents must also demonstrate that “a significant purpose” of
the surveillance is to obtain “foreign intelligence information”, and that appropriate
“minimization procedures” are in place.
213 However, if the targeted individual is a
U.S. citizen, the government must establish probable case that the individual’s
activities “may” or “are about to” involve a criminal violation.
214 Because the
government is the only side represented in the majority of hearings before the
court, critics have alleged that the court is a rubber stamp for the executive branch.
215
In cases where the Attorney General certifies that there is “no substantial likelihood that the surveillance will acquire the contents of any communication to which a
U.S. person is a party” and that the surveillance is directed solely at communications
among or between foreign powers, or “the acquisition of technical intelligence . . .
from property or premises under the open and exclusive control of a foreign power”,
the President may authorize electronic surveillance to acquire foreign intelligence
information for periods of up to 1 year without a FISC court order.
216
5.1 The USA Patriot Act
In the wake of the 9/11 attacks, the federal government’s use of its FISA powers
dramatically increased. Among the Act’s provisions are a number which impacted or
amended the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et seq. (FISA).
208 Goitein and Patel (2015), p. 13.
209 50 U.S.C. § 1801(f)(2).
210 Solove and Hartzog (2014), p. 86.
211 Id.
212 Id. citing 50 U.S.C. § 1801.
213 50 U.S.C. § 1804.
214 Solove and Hartzog (2014), citing 50 U.S.C. § 1801(b)(2)(A)–(B).
215 Perez (2013).
216 “The Foreign Intelligence Surveillance Act of 1978 (FISA)”, U.S. Dept. of Justice, Justice
Information Sharing. Available online at: https://it.ojp.gov/PrivacyLiberty/authorities/statutes/
1286, citing 50 U.S.C. § 1802.
438
S. M. Boyne
208
As amended, FISA sets forth a framework of standards and procedures for the
government’s use of electronic surveillance,
209 physical searches, business records,
as well as pen registers and trap and trace devices.
210 FISA established a special
court that consists of eleven federal district court judges. The court meets in secret
and primarily conducts ex parte proceedings to review applications to authorize
surveillance applications.
211 While the government must establish that probable
cause exists that the party to be monitored is a “foreign power” or an “agent of a
foreign power”, the government need not show that the agent is engaged in criminal
activity.
212 Government agents must also demonstrate that “a significant purpose” of
the surveillance is to obtain “foreign intelligence information”, and that appropriate
“minimization procedures” are in place.
213 However, if the targeted individual is a
U.S. citizen, the government must establish probable case that the individual’s
activities “may” or “are about to” involve a criminal violation.
214 Because the
government is the only side represented in the majority of hearings before the
court, critics have alleged that the court is a rubber stamp for the executive branch.
215
In cases where the Attorney General certifies that there is “no substantial likelihood that the surveillance will acquire the contents of any communication to which a
U.S. person is a party” and that the surveillance is directed solely at communications
among or between foreign powers, or “the acquisition of technical intelligence . . .
from property or premises under the open and exclusive control of a foreign power”,
the President may authorize electronic surveillance to acquire foreign intelligence
information for periods of up to 1 year without a FISC court order.
216
5.1 The USA Patriot Act
In the wake of the 9/11 attacks, the federal government’s use of its FISA powers
dramatically increased. Among the Act’s provisions are a number which impacted or
amended the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et seq. (FISA).
208 Goitein and Patel (2015), p. 13.
209 50 U.S.C. § 1801(f)(2).
210 Solove and Hartzog (2014), p. 86.
211 Id.
212 Id. citing 50 U.S.C. § 1801.
213 50 U.S.C. § 1804.
214 Solove and Hartzog (2014), citing 50 U.S.C. § 1801(b)(2)(A)–(B).
215 Perez (2013).
216 “The Foreign Intelligence Surveillance Act of 1978 (FISA)”, U.S. Dept. of Justice, Justice
Information Sharing. Available online at: https://it.ojp.gov/PrivacyLiberty/authorities/statutes/
1286, citing 50 U.S.C. § 1802.
438
S. M. Boyne