The Foreign Intelligence Surveillance Act of 1978 (FISA)
Background
After the release of the famous or infamous Muller Report about the Russian intervention in the 2016 elections, and after the clearance on President Trump in no-collusion, nor illegal obstruction of investigations, we had been heard the news and commentators talking about FISA warrants . But what it is, and how it has evolved until now? To have a clear notion about what FISA is we must start by looking into the events that were pushing the enactment of this important legal procedure and guidelines to the government’s intelligence agencies in the use of electronic surveillance for national security purposes.
The Foreign Intelligence Surveillance Act of 1978 (FISA), was a Congressional response to a series of complaints about a governmental abuse of power in the use of electronic surveillance in prejudices to the privacy rights of the U. S. citizens. The Article II (a) of the U. S. Constitution is giving to the Executive branch (specifically to The President of USA) an inherent authority to conduct warrantless electronic surveillance for non-criminal national security purposes. However, this consention began to change in the early ’70s.
In 1968 was enacted the Omnibus Crime Control and Safe Streets Act (“Wiretap Act”/Pub. L. 90-351; 6/19/68), in which is prohibited the unauthorized interception of “wire, oral, or electronic communications”. The same law established the requirements and procedures to obtain a warrant authorizing wiretap by government officers.
Four years later the Supreme Court in the “Keith Case” (United States vs United States District Court 407 U.S. 297 1972) release the opinion about the legality of a warrantless electronic surveillance authorized by the Attorney General where the target was a U. S. citizen in this case accused of the bomb attempted in a CIA building. Although The Court holds that the 4th Amendment prohibited the warrantless surveillance over a a domestic threats to U.S. national security, in an inconclusive opinion, refused to stand over the legality of warrantless surveillance when a the target is a “foreign power or their agents” involved. The aforementioned inconsistency gives the path to a posterior inquiry to the U. S. Congress to provide a judicially manageable standards and/or guidelines, as applicable, to the performance of electronic surveillance for national security purposes.
Watergate investigations between 1972-1976 gives an extra impact to the needs for a bolder approach to the electronic surveillance system used by the government agencies. The Church Committee (Senator Frank Church from Idaho was the Committee leader) in the report delivered on April 26, 1976 highlights the need for Congress to assert itself to stop the lawlessness and use of a government agencies as a political weapons against political enemies, concerned organizations, and U.S. citizens. It was a call for a clarification of the Constitutional system of checks and balances on Executive powers. (Frank Church and the Abyss of Warrantless Wiretapping, by John Nichols, The Nation, April 26, 2006 as cited by McAdams, J.D.).
FISA Enacted
With these incidents inside the Lawmakers minds, and a public expectations for a government accountability, the Foreign Intelligence Surveillance Act (FISA) was introduced on May 18, 1977, by Senator Ted Kennedy and was signed into law by President Jimmy Carter on October 25, 1978.
Amendments
After 1978 FISA has been amended by the Intelligence Authorization Act of 1995 (Pub. L. 103-359; 10/1494) including physical searches and electronic surveillance. However, it’s also recognized the limited authority of the President to authorize a physical searches without a court warrant.
In 2001 is expanded the surveillance authority to the Federal law enforcement agencies by the USA PATRIOT Act (Pub. L. 10756; 10/26/2001), and reaffirmed by the USA PATRIOT Additional Reauthorization Amendments Act of 2006 (Pub.L. 109-178; 3/9/06), in which are given the procedure and requirements to the request of a court warrant.
More changes were also followed by the FISA Amendments Act 2008 (Pub. L. 110-261; 7/10/2008), and by the FISA Sunsets Extensions Act 2011 (Pub. L. 112-3; 2/25/2011). These aforementioned Amendments are giving an eased restrictions on foreign intelligence gathering and a greater access to information unearthed during a criminal investigation by the U. S. Intelligence community.
FISC
Within the FISA was established the Foreign Intelligence Surveillance Court that is a body of eleven U. S. District Court judges designed by the Chief of Justice. This is an extracurricular court body that is composed in secrecy and empowered to hear and approve the applications for a electronic surveillance and searches within the United States. At the same time the Chief of Justice is designing three U. S. District or court of appeals as an special court of appeals if a warrant is denied. The government may then appeal to the Supreme Court.
Civil Rights and Liberties Implications
On FISA is clearly prohibited the surveillance of or production of business records concerned to a U. S. Person (50 USC §§ 1805,1842,1861). It’s also providing the guidelines for the process of sharing foreign intelligence information among the Federal agencies, and other law enforcement agencies in the States and local partners (Section 1806). Others guidelines are drafted in Sections 1825 (Physical searches), and Section 1845 (pen registers, trap and trace devices). The term “agents of foreign powers” as defined is including those U. S. citizens and permanent residents engaged in espionage in violation of U. S. law on any territory under the control of USA [Section 1801(b)].
A new conception was added in the definition of “agent of foreign power” by The Intelligence Reform and Terrorism Prevention Act of 2004. A non citizens who engages in international terrorism should be considered within the definition of “agent of foreign power” under FISA. Under the called individual “lone wolf”, it’s refered to any U.S. person who “knowingly engages in clandestine intelligence gathering”, or “engages in sabotage, or international terrorism”, or in any activities on behalf of a foreign power.
FISA’s constitutionality is upheld in United States v. Duggan (1984) as “constitutionally adequate balancing of the individual’s Fourth Amendment rights against the nation’s need to obtain foreign intelligence information.”
FISA in Substance
FISA warrants is not a rigorous standards process as a traditional law enforcement search warrant, in which is required an evidence that the subject whose property is searched was involved in some criminal activity. It’s easier targeting an “agent of foreign power” when this is not a United States person.
“United States person” as defined on FISA, cannot be a target of FISA surveillance solely upon the base “of activities protected by the first amendment”. At least on of the following requirements must be met in order to have a United States person be a target of FISA surveillance.
Criminal Justice Issues 