Foreign Intelligence Surveillance Act: Selected Legislation from the 108th Congress


Publication Date: January 2005

Publisher: Library of Congress. Congressional Research Service

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Research Area: Government; Human rights

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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, 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 to FISA 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 The 9/11 Commission Report, Final Report of the National Commission on Terrorist Attacks upon the United States (W. W. Norton 2004) (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."

In the 108 th Congress, a number of intelligence reform bills were introduced, including some which pre-dated the release of the Final Report of the 9/11 Commission, while others emerged after its release. On December 17, 2004, the Intelligence Reform and Terrorism Prevention Act of 2004, P.L. 108-458 (S. 2845), was signed into law. It included several provisions related to FISA. In addition to P.L. 108-458, a variety of other bills were introduced with FISA-related provisions. The FISA provisions of some of these measures were part of larger intelligence reform proposals. Still others were more narrowly focused measures that would also have impacted FISA investigations in the post-9/11 environment. This report briefly discusses the FISA-related aspects of these proposals. For purposes of this report, the bills addressed are divided generally into two categories: intelligence reform or reorganization proposals that have FISA provisions, including P.L. 108-458 (S. 2845), H.R. 10, H.R. 4104, H.R. 5040, H.R. 5150, S. 6, S. 190, S. 1520, S. 2811, S. 2840, and Senator Pat Roberts' draft bill; and other FISA-related bills, including H.R. 1157, H.R. 2242, H.R. 2429, H.R. 2800, H.R. 3179, H.R. 3352, H.R. 3552, H.R. 4591, H.Amdt. 652 to H.R. 4574, S. 113, S. 123, S. 410, S. 436, S. 578, S. 1158, S. 1507, S. 1552, S. 1709, S. 2528, and S.Amdt. 536 to S. 113. For a more detailed discussion of FISA, see CRS Report RL30465, The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and Recent Judicial Decisions, while a discussion of the amendment in P.L. 108-458 to the FISA definition of "agent of a foreign power may be found in CRS Report RS22011, Intelligence Reform and Terrorism Prevention Act of 2004: "Lone Wolf" Amendment to the Foreign Intelligence Surveillance Act.