America's Foreign Intelligence Surveillance Act of 1978 is an Act of Congress which prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" (which may include American citizens and permanent residents).
Enacted by a bipartisan Congress in 1978, FISA was a response to revelations that the NSA had conducted warrantless eavesdropping on Americans. To deter future presidents and NSA directors from ever again bypassing the court and warrant procedure, Congress put sharp teeth in the statute, making violations punishable by a $10,000 fine and five years in prison. Hard time. And each warrantless interception was a separate violation.
Despite an idealistic vision of the country's devotion to the Constitution and its Bill of Rights amendments, it may come as a shock to any American who has not been paying attention that the US government has been conducting illegal unconstitutional surveillance on its citizens for much of the last hundred years.
The indictment presently before the Court, S(6) 98 Cr. 1023 (LBS) (the “Indictment”), charges the 15 named Defendants with 267 discrete criminal offenses. Eleven of the Defendants (all except Salim, Khaled Al Fawwaz (“Al [**2] Fawwaz”), Ali Mohammed, and El Hage) are charged with 229 counts of murder (see id. at PP 40-59), as well as nine other substantive offenses n1 (see id. at PP 32-39, 56-65), based on the August, 1998 bombings of the United States embassies in Nairobi, Kenya and Dar es Salaam, Tanzania.
In this case U.S. District Court for the Southern District of New York ruled that U.S. citizens subjected to surveillance while overseas could bring a Fourth Amendment challenge though no warrant requirement existed, only that the search had been reasonable in order to avoid exclusion of the evidence.
Government surveillance that sweeps up the communications of U.S. citizens and residents should be conducted in a manner that comports with the Constitution, and in particular with the Fourth Amendment, which prohibits “general warrants” and unreasonable searches. The FISA Amendments Act allows the government to engage in mass acquisition of U.S. citizens’ and residents’ international communications with virtually no restrictions.
As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion [407 U.S. 297, 322] as to, the issues which may be involved with respect to activities of foreign powers or their agents.
But we do not think a case has been made for the requested departure from Fourth Amendment standards. The circumstances described do not justify complete exemption of domestic security surveillance from prior judicial scrutiny.
This is the text of the Supreme Court's decision in UNITED STATES v. UNITED STATES DISTRICT COURT, 407 U.S. 297 (1972) or commonly called the "Keith" decision. The Keith Court rejected a general "national security exception" to the warrant requirement while ruling the electronic surveillance of domestic individuals and organizations violates the Fourth Amendment when done without a warrant. However, the Keith Court restricted its holding to only surveillance of purely domestic threats by stating "warrantless surveillance, though impermissible in domestic security cases, may be constitutional where foreign powers are involved." This is the last time the Court has decided a case involving Foreign Intelligence collection and provided the framework for the FISA's creation in 1978.
With regard to the Fourth Amendment, the Court states, "the critical Fourth Amendment requirement, for purposes of this case, is that the statutory standard for obtaining a warrant must be reasonable." [Slip op. 19] Though the Supreme Court has not dealt with the reasonableness standard under FISA, the Court specifically suggests that different probable cause standards for intelligence surveillance "may be compatible with the Fourth Amendment."
Definitions used in a FISA application. A prospective surveillance target must fit within these categories in order to receive authorization from the FISC.
FISA also established the United States Foreign Intelligence Surveillance Court (FISC), a special U.S. Federal court that holds nonpublic sessions to consider issuing search warrants under FISA. Proceedings before the FISC are ex parte, meaning the government is the only party present.
The final bill ended nearly a year of debate in Congress over surveillance rules and the warrantless wiretapping program. In simplest terms, the measure provided for U.S. government agencies to intercept foreign telephone calls without court approval (“warrantless”)...
The FAA (FISA Amendment Act) requires FISC approval prior to the targeting of any U.S. citizen abroad as long as there is a reasonable expectation of privacy and a warrant would be required if the acquisition were conducted in the United States for law enforcement purposes. FISC approval is contingent on a showing of probable cause that the person is an agent of a foreign power and that they are reasonably believed to be located outside the United States.
Congress set out to curb the abuses detailed in the Church Committee Report, the system it created relied heavily on ex ante judicial approval through the issuance of warrants. FISA constituted two Article III courts to implement the Act: the Foreign Intelligence Surveillance Court (FISC), composed of seven federal district court judges, which would issue orders authorizing surveillance, (7) and the Foreign Intelligence Surveillance Court of Review (FISCR), composed of three circuit court judges, which would hear appeals from denials. (8) A FISC order was required to conduct electronic surveillance unless the Attorney General issued a written certification under oath (9) certifying that the surveillance was "solely directed at" foreign powers, (10) carried "no substantial likelihood" of intercepting communication of a U.S...
The U.S. Supreme Court on Oct. 29 heard arguments on the ability of a group of respondents to challenge the constitutionality of a law that its opponents characterize as "dragnet surveillance" related to the power that it gives the executive branch of the government to monitor telephone and email communication involving foreign parties
In a 301 to 118 decision, the US House of Representatives has voted in favor of the FISA Amendments Act Reauthorization Act of 2012, a bill which will extend the US government's previously established warrantless wiretapping programs for the next five years. The bill preserves far-reaching and highly controversial enhancements to government surveillance powers granted under amendments to the Foreign Intelligence Surveillance Act (FISA) in 2008, and has been met with considerable resistance from privacy groups and members of Congress on both sides of the aisle.