The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and Recent Judicial Decisions

Publication Date: September 2004

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Military and defense

Keywords: Foreign intelligence

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Abstract:

The Foreign Intelligence Surveillance Act, 50 U.S.C. 1801 et seq., (FISA) as passed in 1978, provided a statutory framework for the use of electronic surveillance in the context of foreign intelligence gathering. In so doing, the Congress sought to strike a delicate balance between national security interests and personal privacy rights. Subsequent legislation expanded federal laws dealing with foreign intelligence gathering to address physical searches, pen registers and trap and trace devices, and access to certain business records. The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, P.L. 107-56, made significant changes to some of these provisions. Further amendments were included in the Intelligence Authorization Act for Fiscal Year 2002, P.L. 107-108, and the Homeland Security Act of 2002, P.L. 107-296. In addressing international terrorism or espionage, the same factual situation may be the focus of both criminal investigations and foreign intelligence collection efforts. The changes in FISA under these public laws facilitate information sharing between law enforcement and intelligence elements. In its Final Report , the 9/11 Commission noted that the removal of the pre-9/11 wall between intelligence and law enforcement has opened up new opportunities for cooperative action within the FBI. On May 17, 2002, the U.S. Foreign Intelligence Surveillance Court (FISC) issued a memorandum opinion and order written by the then Presiding Judge of the court, and concurred in by all of the other judges then on the court. The unclassified opinion and order were provided to the Senate Judiciary Committee in response to a letter from Senator Leahy, Senator Grassley, and Senator Specter, who released them to the public on August 22, 2002. In the decision, the FISC considered a motion by the U.S. Department of Justice to vacate the minimization and 'wall' procedures in all cases now or ever before the Court, including this Court's adoption of the Attorney General's July 1995 intelligence sharing procedures, which are not consistent with new intelligence sharing procedures submitted for approval with this motion. The FISC granted the Department's motion, but modified part of the proposed minimization procedures. While this FISC decision was not appealed directly, the Department of Justice did seek review of an FISC order authorizing electronic surveillance of an agent of a foreign power and of an FISC order renewing that surveillance, both subject to restrictions based upon the May 17th memorandum opinion and order by the FISC. The U.S. Foreign Intelligence Surveillance Court of Review reversed and remanded the FISC orders on November 18, 2002. This report will examine the detailed statutory structure provided by FISA and related provisions of E.O. 12333. In addition, it will discuss the decisions of the U.S. Foreign Intelligence Surveillance Court and the U.S. Foreign Intelligence Surveillance Court of Review. Bills from the 108th Congress relating to FISA are addressed in CRS Report RL32608, Foreign Intelligence Surveillance Act: Selected Legislation from the 108th Congress.