FISA (Foreign Intelligence Surveillance Act)
What does it do?
FISA defines procedures for the physical and electronic surveillance and collection of foreign intelligence information between foreign powers and agents of foreign powers (which may include American citizens and permanent residents suspected of being engaged in espionage and violating U.S. law on territory under United States control). This means basically that the goverment can look at your emails and listen in on your phone conversations without a warrant all carried out by the National Security Agency.
Impact on the 2008 Presedential Election
Until recently Barack Obama said he would not support any new FISA amendment that gave immunity to telecommunication companies. However, he did vote in July to pass the FAA, which did give telecommunication companies such as AT &T protection from lawsuits, saying that other provisions found in the new bill were too essential no to vote for. John McCain, although a staunch advocate of the FAA, was out campaigning when the Senate voted on the bill in July.
FISA was enacted in 1978 after the Watergate scandal. However there have been subsequent amendments. One that has been recently passed is the FISA Amenment Act signed by Presedent Bush on July 10, 2008. Until Congress enacted the FAA, FISA generally prohibited the government from conducting electronic surveillance without first obtaining an individualized order from the FISA court. The new law gives the court established by FISA an extremely limited role in overseeing the government’s surveillance activities
Amendments to FISA
Starting with the Patriot Act in 2001, there have been various amendments to FISA. The Patriot Act broadened the act’s power by encompassing terrorists into those whop could be sureveillanced since some terrorist groups are not affiliated with any specific country.The Lone Wolf Amendment is a provision to FISA added in 2004 that permits FISA courts to issue surveillance and physical search orders without having to find a connection between a “lone wolf”(a person who engages in or prepares for international terrorism) and a foreign government or terrorist group.
FISA created the Foreign Intelligence Surveillance Court and enabled it to oversee requests for surveillance warrants by federal agencies such as the FBI, against suspected foreign intelligence agents inside the U.S. The court is staffed by eleven judges appointed by the Chief Justice of the Supreme Court to serve seven year terms. The court hears evidence presented solely by the Department of Justice. There is no provision for a release of information regarding such hearings or any information collected. If an application is denied by the FISA court it can be appealed to the Foreign Intelligence Court of Review. The court is a three judge panel that has only come into session once in 2002.
There have been few court cases involving the constitutionality of FISA. In two lower court decisions, FISA was found to be constitutional. In the Untied States v. Duggan, the defendants were members of the Irish Republican Army. They were convicted for various violations regarding the shipment of explosives and firearms. The court held that their compelling considerations of national security in the distinction between the treatment U.S. citizens and non-resident aliens.
In the United States v. Nicholson, the defendant moved to suppress all evidence gathered under a FISA order. The court affirmed the denial of the motion. The court rejected the claims the FISA violated any part of the Constitution or Bill of Rights.
However, in a third case, the special review court for FISA, opined differently should FISA limit the President’s inherent authority of warrantless searches in the foreign intelligence area. In In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002) the court stated that “[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information….. We take for granted that the President does not have that authority, and assuming that is so, FISA could not encroach on the President’s constitutional power.”
Without a court order
The President may authorize, through the Attorney General, electronic surveillance without a court order for the period of one year provided it is only for foreign intelligence information; targeting foreign powers or their agents; and there is no substantial like hood that the surveillance will acquire the contents of any communication to which a U.S. person is a party.
The Attorney General is required to make a certification of these conditions under seal to the FISA Court and report on their compliance to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence.
The President may also authorize warrantless surveillance at the beginning of a war.
With a Court Order
The government can seek a court order permitting the surveillance using the FISA Court. Approval of a FISA application requires that the court finds probable cause target of the surveillance is a “foreign powe4r” or an “agent of a foreign power” and that the place at which surveillance is requested is used or will be used by that foreign power or its agent. The court must also find that the proposed surveillance meet certain “minimization requirements” for information pertaining to U.S. persons.
"Seven Paths to Privacy". Scientific America September 2008: 37-37.
Graves , Lisa. "Warrantless Wiretapping: Unconstitutional and Unwise". National Voter June 2008: 21-21.
Melber, Ari. "FISA Fight Back". Nation August 2008: 5-5.
Abdul-Aleem, Maryam. "Telephone Companies Off the Hook". New York Amsterdam News July 2008: 40-40.
Copland , Libby. "Another Peek Inside the Brain of the Electorate". The Washington Post July 2008: 4-4