Surveillance Under the Foreign Intelligence Surveillance Act (FISA)

The History of FISA

As stated above, the government was free to wiretap whenever it wanted to in law enforcement investigations until the Supreme Court addressed the issue in 1967, and Congress passed the Wiretap Act in 1968. Similarly, the legality of warrantless searches and wiretaps in national security investigations, as opposed to law enforcement investigations, wasn't settled until the seventies.

In 1972, the Supreme Court ruled on the use of wiretaps in national security cases. In that case, a group of Americans protesting the Vietnam War tried to blow up their local CIA recruiting office. Investigators collected evidence against them with a wiretap but without getting a wiretap order, and argued in court that since the investigation was for national security, the president had the authority to authorize surveillance without having to go through the courts.

The Supreme Court held that the government didn't have unlimited power to conduct surveillance without the approval of a judge just by claiming the investigation was for national security, at least when investigating domestic threats to national security (that is, threats from U.S. citizens and legal residents). It left open whether or not such warrantless surveillance was allowed when investigating foreign threats.

After this decision, and after revelations throughout the seventies that the government had been engaging in an enormous amount of unauthorized spying during the 1960s and early 1970s, Congress decided to provide a legal framework to rein in foreign intelligence investigations. The Foreign Intelligence Surveillance Act of 1978 (or "FISA"), along with later amendments to that act, created a warrant procedure for foreign intelligence investigations so that there would no longer be any foreign intelligence surveillance without court oversight.

FISA in Action

FISA requires the government to get search warrants and wiretap orders from a court even when it is investigating foreign threats to national security. However, the FISA process is different from the law enforcement processes described in earlier sections.

First, all government requests for foreign intelligence surveillance authorization are made to a secret court: the FISA court. In order to get authorization, a significant purpose of the surveillance must be to gather foreign intelligence information — information about foreign spies, foreign terrorists, and other foreign threats — instead of evidence of a crime.

Most importantly, the probable cause standard is very different. Instead of having to show probable cause that a crime is being, has been, or will be committed, the government must show that the target of the surveillance is a foreign power or an agent of a foreign power.

Also unlike law enforcement surveillance, the target is never told by the government that he/she was spied on, and every person that is served with a FISA search warrant, wiretap or pen/trap order, or subpoena is also served with a gag order forbidding them from every telling anyone about it except their lawyer.

Foreign Powers and Their Agents. So, what exactly qualifies as a foreign power or agent of a foreign power when it comes to FISA surveillance? It's a bit unclear. The FISA law defines those terms only vaguely, and without any access to the decisions of the secret FISA court, there's no way of telling how broadly or narrowly the definitions are being interpreted.

According to FISA, a Foreign Power is defined to include:

  • Any foreign government or component of a foreign government, whether or not officially recognized by the United States
  • Any "faction" of a foreign nation or nations, or any foreign-based political organization, that isn't "substantially" composed of United States persons ("faction" and "substantially" aren't defined; a U.S. person is a citizen or a legal resident of the U.S.)
  • Any entity, like a political organization or a business, that is directed or controlled by a foreign government
  • Any group engaged in, or preparing to engage in, "international terrorism." ("International terrorism" is broadly defined as activities that (1) involve violent acts or acts dangerous to human life that are a violation of U.S. criminal laws or would be a violation if committed in the U.S., (2) appear to be intended to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion, or to affect the conduct of a government by assassination or kidnapping, and (3) occur totally outside the U.S., or transcend national boundaries in terms of how they are accomplished, the people they are intended to coerce or intimidate, or the place where the terrorists operate)

According to FISA, an Agent of a Foreign Power is defined to include:

  • Anyone that is not a U.S. person who is an officer or employee of a foreign power
  • Anyone that is not a U.S. person who engages in "clandestine intelligence activities" (spying) in the U.S. on behalf of a foreign power or any U.S. person that does the same and may be violating the law. So, if you're not a U.S. person, you don't have to be suspected of a crime; but even if you are a U.S. person, that suspicion doesn't have to meet traditional probable cause standards
  • Anyone, whether a U.S. person or not, who engages in or prepares for acts of international terrorism or sabotage

If you think that all sounds like very vague gobbledy-gook, you're right. No one really knows what these terms mean other than the FISA court, which won't release its decisions.

And it's even worse for FISA subpoenas, which can be used to force anyone to hand over anything in complete secrecy, and which were greatly strengthened by Section 215 of the USA PATRIOT Act. The government doesn't have to show probable cause that the target is a foreign power or agent — only that they are seeking the requested records "for" an intelligence or terrorism investigation. Once the government makes this assertion, the court must issue the subpoena.

Police at the door: FISA Orders and National Security Letters

If federal agents serve you with a FISA warrant or subpoena, or a National Security Letter, the advice given for regular warrants and subpoenas applies. However, FISA orders and National Security Letters will also come with a gag order that forbids you from discussing them. Do NOT violate the gag order. Only speak to members of your organization whose participation is necessary to comply with the order, and your lawyer. The constitutionality of FISA orders and especially National Security Letters is a matter of great dispute — in particular, several courts have found that the gag order that comes with a National Security Letter violates the First Amendment — and you may be able to successfully challenge the government's demand in court. If you do decide to seek counsel and do not have an a lawyer of your own, you can call the lawyers at EFF.

FISA Wiretap Statistics

Like law enforcement wiretaps, FISA surveillance is relatively rare. Also like law enforcement wiretaps, however, FISA surveillance probably sweeps in the communications of a great many people. Because the information released about FISA surveillance is so limited, though, it's impossible to gauge just how many people are affected and how many communications are intercepted. The only public data available on FISA are the numbers of applications made to, and approved by, the FISA court. And those numbers have steadily increased through the years, to the point where FISA orders now outnumber all federal and state wiretap orders combined! For example, in 2007, 2,370 applications for FISA wiretaps were granted by the FISA court, compared to 2,208 state and federal wiretaps reported in the same year. And each application can contain a request for more than one type of surveillance — for example, a wiretap, a secret search, and secret subpoenas.

Like with law enforcement wiretaps, your FISA wiretap risk is very low, as is the risk of being subjected to a secret physical search under FISA. The risk of having records about you secretly subpoenaed under FISA is much higher, but if it's your communications records the government is after, they're more likely to use a National Security Letter.

Privacy tip: Foreign Intelligence Surveillance

If your organization deals with lots of non-U.S. persons or any foreign governments or foreign-based organizations, you will likely face a higher risk of foreign intelligence surveillance, and should factor that risk into your security decision-making.