The Foreign Intelligence Surveillance Act of 1978 (FISA) was passed by Congress in an attempt to define the power of the Executive branch regarding foreign intelligence surveillance. FISA applies to all electronic surveillance that intercepts communication sent by, or intended to be received by, United States citizens or organizations while they are within this country. FISA also authorizes the interception of the communications of “foreign powers and agents of foreign powers for foreign intelligence purposes.”#sdfootnote1sym Although electronic surveillance conducted under the authority of FISA must conform to certain regulations, the requirements for obtaining a court order and for reporting to the AO are much less restrictive than those outlined by Title III. Court orders for a FISA wiretap are granted by the Foreign Intelligence Surveillance Court, “which is made up of seven District Court judges specially appointed by the Chief Justice of the United States.”#sdfootnote2sym These judges serve seven-year terms on the court.#sdfootnote3sym The application is made based on “a probable cause finding that the target is a foreign power or an agent of a foreign power.”#sdfootnote4sym “The order must be applied for by a federal officer, and approved by the attorney general, who is required to inform the House and Senate Committees on Intelligence of all FISA wiretap activity twice a year.”#sdfootnote5sym
Much like Title III, FISA requires that reports of all wiretaps be made to the AO every year. However, the information disclosed about FISA taps is significantly limited. The Attorney General is required only to supply the number of applications and the number of orders granted per year. All other information about FISA taps is classified. In addition, FISA provides for two situations in which no court order is needed to intercept communications.
The first is when the communications are exclusively between or among foreign powers or involve technical intelligence other than spoken communications from a location under the open and exclusive control of a foreign power; there is no substantial risk that the surveillance will acquire the communications to or from a U.S. person; and proposed minimization procedures meet the requirements set forth by the law. Under those conditions, authorization can be granted by the President through the Attorney General for a period up to one year. The second is following a declaration of war by Congress. Then the President, through the Attorney General, can authorize electronic surveillance for foreign intelligence purposes without a court order for up to 15 days.
Great minds do think alike though, don't they?
