Intelligence Surveillance Act of 1978 recognized clandestine foreign
intelligence gathering as a legitimate function of the government
in the national security interest, but also worked to set up a
legal regimen to govern this effort.
Foreign Intelligence Surveillance Court, created under the act,
is made up of seven federal district court judges from around
the country. The first court of judges were cleared and appointed
by Chief Justice Warren Berger and began work on May 18, 1979.
all requests to conduct electronic eavesdropping surveillance
must be reviewed by the Justice Department, approved by the Foreign
Intelligence Surveillance Court, certified by the attorney general
and reported to the House Permanent Select Committee on Intelligence
and the Senate Select Committee on Intelligence.
requires that the target of the surveillance be "a foreign
power or an agent of a foreign power" and that "the
purpose of the surveillance is to obtain foreign intelligence
information" and nothing more.
But the act
also set a different set of standards to allow for more aggressive
surveillance in times of emergency.
for the attorney general to immediately implement a surveillance
activity by notifying the court and then presenting a written
application within 24 hours. If the application is not approved
by the FISC judge, the surveillance must be terminated.
In the event
of war, FISA grants warrantless wiretaps for a limited time period.
"Notwithstanding any other law, the president, through the
attorney general, may authorize electronic surveillance without
a court order under this subchapter to acquire foreign intelligence
information for a period not to exceed 15 calendar days following
a declaration of war by the Congress," the law reads.
allow for surveillance on people within the United States but
only if the surveillance target is an agent of a foreign power,
involved in international terrorism or is knowingly helping someone
who is an agent of a foreign power or terrorist. The FISC must
also ensure that the request would not impinge on the individual's
Fourth Amendment rights.
surveillance subject to stricter rules
Stricter rules apply for domestic intelligence
surveillance because U.S. citizens are protected by the Fourth
Amendment of the Constitution which guarantees "the right
of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures."
on U.S. Citizens is also viewed as an intrusion on the First Amendment
rights of privacy and speech. Domestic surveillance rules require
that the government first show "probable cause" that
a crime has been or is about to be committed.
protections are less clear when it comes to surveillance of foreigners
for national security purposes.
electronic surveillance of foreign powers has historically been
a tool of presidents during war time or time of international
tension. President Franklin Roosevelt conducted wire taps prior
to World War II and the use of electronic eavesdropping by U.S.
intelligence agencies expanded greatly during the Cold War in
the 1960s and 1970s.
during the Nixon administration raised concerns about the abuse
of presidential power when conducting wiretaps.
In the late 1960s and early 1970s, President Nixon was
concerned about unrest caused by the ongoing war in Vietnam War
and the civil rights movement. Nixon asked the CIA and the National
Security Agency, intelligence organizations charged with foreign
surveillance, to eavesdrop on U.S. Citizens The domestic spying
program targeted the political activities of members of the anti-war
and civil rights movements including singer Joan Baez, the family
of Martin Luther King Jr. and members of a group called the White
Panthers were charged with bombing a CIA office in Michigan in
1968. During the trial, prosecutors submitted into evidence conversations
taped by federal agents without a warrant on the authority of
President Nixon's attorney general, John Mitchell.
In 1971, Mitchell
submitted a sworn statement defending his actions saying the surveillance
was necessary to protect the nation from "attempts of domestic
organizations to attack and subvert the existing structure of
Supreme Court disagreed. In 1972 the Supreme Court ruled unanimously
to prohibit warrantless electronic surveillance of domestic organizations.
The freedoms protected by the Fourth Amendment "cannot properly
be guaranteed if domestic security surveillance may be conducted
solely within the discretion of the executive branch," wrote
Justice Lewis Powell, a Nixon appointee.
abuses came to light during the Watergate investigation and in
a lengthy New York Times article by Seymour Hersh published in
1974. As a result, the Senate convened a special investigative
committee headed by Sen. Frank Church, D-Idaho, to investigate
the intelligence abuses.
that congressional oversight of the intelligence community was
necessary to protect the public from such abuses, the intelligence
committee later became a permanent fixture of both the House and
FISA has been amended at times to incorporate advances in communications
technology. For example, a 1998 amendment expanded the activities
allowed under FISA to include pen register/trap and trace devices,
provided they targeted "an agent of a foreign power."
A pen register
collects the outgoing phone numbers placed from a specific telephone
line, a trap and trace device collects incoming numbers. Caller
ID is an example of a trap and trace device.
changes came after the attacks of Sept. 11, 2001 and as a result
of the USA Patriot Act passed a month later.
FISA required that foreign intelligence information gathering
be the sole or "primary purpose" of electronic surveillance.
The Patriot Act expanded the application of FISA to situations
where foreign intelligence gathering is only "a significant"
purpose of the investigation. Significant is not defined and is
subject to interpretation by the FISC.
required separate surveillance applications for each device or
phone number to be targeted. The Patriot Act expanded FISA rules
to permit "roving wiretap" authority, which allows communications
surveillance to follow the intelligence target as he or she moves
from device to device, for example, home phone, to cell phone,
Act also expanded the use of pen register/trap and trace device
orders to "any investigation to gather foreign intelligence
information," without having to establish that the device
has, or will be used by "an agent of a foreign power."
changes to FISA as a result of the Patriot Act were changes to
rules limiting intelligence sharing. Prior to the Patriot Act,
the FISC had interpreted FISA as mandating a "wall"
that prevents the sharing of information gathered during intelligence
surveillance in a criminal investigation.
of the Patriot Act, then Attorney General John Ashcroft issued
guidelines on information sharing that directed law enforcement
officials, including the FBI and federal prosecutors, to immediately
notify the CIA and the Department of Homeland Security or other
U.S. Intelligence community officials of any intelligence information
collected as the result of a criminal investigation.
also call for the attorney general and federal criminal prosecutors
to consult with intelligence officials and to help direct intelligence
Due to an
increase in the number of surveillance requests after the attacks
of 9/11, the number of judges on the FISC was expanded from seven
to 11. To make emergency applications easier, three of the judges
must be located within 20 miles of Washington, D.C.
The time allowances
for emergency circumstances also have been expanded after 9/11.
The attorney general now has 72 hours to submit an application
for a warrant after implementing an emergency surveillance, instead
of the previous 24 hour requirement.