Foreign Intelligence Surveillance Act (FISA)

The Foreign Intelligence Surveillance Act (FISA) was passed in 1978 as Public Law 95-511 and has since been amended several times. FISA represented a compromise between the civil liberties community and the Executive intended to authorize lower standards for foreign intelligence surveillance while requiring outside judicial oversight and other safeguards.

1994 Extension to Physical Searches (Public Law 103-359):

In 1994, the FISA, which at its passage only authorized electronic surveillance, was extended to authorize secret physical searches of Americans' homes and offices. The civil liberties community objected that the extension was unconstitutional, but the Justice Department argued that it was better to have such searches authorized by the FISA court than carried out solely on the signature of the Attorney General as had occurred in the investigation of Aldrich Ames. In the summer of 1994 the House Intelligence committee held a hearing to consider the Administration's proposal to extend FISA to include physical searches.

During late summer 1994, Congressman Don Edwards wrote in opposition to extending FISA to authorize secret searches and Attorney General Janet Reno responded.

After Congress amended FISA to authorize secret physical searches, the Supreme Court ruled in a different context that the Constitution requires the government to give individuals notice that their homes have been searched, as the civil liberties community had argued that it did.

The Supreme Court has not yet ruled whether this notice requirement means that secret searches under FISA are unconstitutional. See:

The Center's Amicus Brief in US v. Squillacote, March 20, 1998

In 1998, FISA was again amended to allow pen registers, trap and trace devices, and to grant access to certain business records of suspected agents of a foreign power. Public Law 105-72

In 1999, Congress expanded the definition of "agent of a foreign power" to include people working for a foreign government who intentionally enter the US with a fake ID or who obtain a fake ID while inside the US. Public Law 106-120

In 2000, Congress dealt with "chain of command" issues and allowed FISA judges to take into account the previous behavior and circumstances of a target. Public Law 106-567

In 2001, the Patriot Act made extensive changes to the FISA, broadening the powers under FISA and eliminating some of the safeguards against abuse. More information on the Patriot Act changes.

Court Rulings Since the Patriot Act:

In May 2002, the Foreign Intelligence Surveillance Court (FISC) rejected and revised the Department of Justice's intelligence sharing procedures.

Foreign Intelligence Surveillance Court Opinion and Order, May 17, 2002

The decision was made public in the fall of 2002 by senators requesting information about FISA court procedures.

The Department of Justice appealed the FISC decision to the Foreign Intelligence Surveillance Court of Review, the first case ever considered by the FISA Court of Appeal