Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783 (Oct. 25, 1978), codified at 50 U.S.C. §§1861 et seq. (as amended).
The Act governs the use of wiretapping to collect “foreign intelligence.” It provides a statutory framework by which government agencies may, when gathering foreign intelligence information, obtain authorization to conduct electronic surveillance or physical searches, utilize pen registers and trap and trace devices, or access specified business records and other tangible things.
Authorization for such activities is typically obtained via a court order from the Foreign Intelligence Surveillance Court (FISC), a specialized court created to act as a neutral judicial decision maker in the context of FISA. The eleven judges of the FISC, whose members are assigned from the federal bench, may authorize surveillance upon applications approved by the Attorney General asserting probable cause to belief that the effort will yield foreign intelligence. FISA court surveillance orders are crafted to minimize the capture of conversations not related to foreign intelligence. Officers may share the results with law enforcement officials for the performance of their duties.
The Attorney General may authorize emergency surveillance for 72 hours while a FISA order is being secured. The President may authorize surveillance without a court order during time of war or for communications between or among foreign powers. If the government intends to use the results as evidence in judicial proceedings it must inform the parties to the intercepted conversations. Challenges to the legality of the surveillance may be considered ex parte upon petition of the Attorney General.
Unlawful surveillance is subject to criminal, civil, and administrative sanctions, and evidence illegally secured may be suppressed. The FISA Act also empowered judges of the FISA court to issue physical search orders under limitations similar to FISA court surveillance orders. In foreign intelligence cases, FISA likewise tracks the procedure used in criminal cases for the installation and use of pen register and trap and trace devices under court order. Finally, it called for FISA orders for the production of tangible items in foreign intelligence and international terrorism investigations.
Section 215 of FISA permits government access to business records for foreign intelligence and international terrorism investigations. The governing federal officials are permitted the ability to acquire business and other "tangible records" which include: business records, phone provider records, apartment rental records, driver's license, library records, book sales records, gun sales records, tax return records, educational records, and medical records. Under this provision, federal investigators can compel third-party record holders, such as telecom firms, banks or others, to disclose these documents. In order to use this provision, the U.S. government must show that there are reasonable grounds to believe that the records are relevant to an international terrorism or counterintelligence investigation.
- "Foreign intelligence" is defined as “information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations, or foreign persons, or international terrorist activities.”
- 50 U.S.C. §1801(e) (2008).
- Id. §§1801-08.
- Id. §§1822-26.
- Id. §§1841-46.
- Id. §§ 1861-62.