Cecily Zamora
The United States Foreign Intelligence Surveillance Court (FISC), also called the FISA Court, was established under the Foreign Intelligence Surveillance Act of 1978 (FISA). The FISA was enacted in response to revelations of widespread privacy violations by the federal government under President Richard Nixon. The FISA Court is a federal court that reviews requests for surveillance warrants against foreign spies inside the United States by federal law enforcement and intelligence agencies. The court is composed of eleven federal district court judges who are designated by the Chief Justice of the United States, each serving a maximum term of seven years.
| Characteristics | Values |
|---|---|
| Name of the Law | Foreign Intelligence Surveillance Act (FISA) |
| Year of enactment | 1978 |
| Nature of the law | Requires federal law enforcement and intelligence agencies to obtain authorization for gathering "foreign intelligence information" |
| Court established | United States Foreign Intelligence Surveillance Court (FISC) |
| Number of judges | 11 |
| Appointment of judges | Designated by the Chief Justice of the United States |
| Term of judges | 7 years |
| Location of the court | Washington, D.C. |
| Nature of proceedings | Ex parte |
| Nature of warrants | Search warrants |
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What You'll Learn
The Foreign Intelligence Surveillance Act (FISA) of 1978
FISA was created by the U.S. Congress based on the recommendations of the Senate's Church Committee, which was convened in 1975 to investigate illicit activities and civil rights abuses by the federal intelligence community. The act was introduced on May 18, 1977, by Senator Ted Kennedy and was signed into law by President Carter on October 25, 1978. The law established the Foreign Intelligence Surveillance Court (FISC), also called the FISA Court, to oversee requests for surveillance warrants against foreign spies inside the United States.
The FISC is composed of federal district judges appointed by the Chief Justice of the United States, each serving a seven-year term, with one judge appointed each year. The court reviews requests to conduct physical and electronic surveillance within the U.S. concerning "foreign intelligence information." These requests are typically made by the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI). FISA has been significantly amended over the years to address the use of pen registers, trap and trace devices, physical searches, and business records.
The FISA Court has been the subject of controversy, with critics arguing that it allows the government to conduct secret surveillance and create a body of law without sufficient oversight. There have also been concerns about the lack of diversity among the judges appointed to the court. Despite these criticisms, FISA remains an important tool for the government to monitor national security threats while maintaining judicial and congressional oversight.
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FISA Court's composition and jurisdiction
The Foreign Intelligence Surveillance Court (FISC), also called the FISA Court, was established under the Foreign Intelligence Surveillance Act of 1978 (FISA). The FISA Court is a U.S. federal court that reviews requests for surveillance warrants against foreign spies inside the United States by federal law enforcement and intelligence agencies. The FISA Court is composed of eleven judges, appointed by the Chief Justice of the United States, each serving a seven-year term. The court was originally composed of seven judges, but this was expanded by the USA PATRIOT Act in 2001. The Chief Justice appoints one judge per year, and no judge may be appointed to the court more than once.
The FISA Court has jurisdiction over requests to conduct physical and electronic surveillance within the U.S. concerning "foreign intelligence information" between "foreign powers" and "agents of foreign powers" suspected of espionage or terrorism. These requests are typically made by the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI). The FISA Court reviews applications for warrants and may approve or deny them. If an application is denied by one judge, the federal government may appeal to the Foreign Intelligence Surveillance Court of Review, which is a three-judge panel.
The FISA Court has been the subject of controversy, with critics arguing that it allows the government to conduct surveillance against U.S. citizens without proper approval and that it creates a secret body of law. In 2005, it was reported that the Bush administration had been conducting surveillance against U.S. citizens without specific approval from the FISA Court since 2002, leading to the resignation of Judge James Robertson from the court. In 2013, the Snowden leaks revealed the court-sanctioned expansion of government surveillance.
The FISA Court operates in secret, and only the number of warrants applied for, issued, and denied is reported. From 1979 to 2006, the court received 22,990 applications for warrants, of which 22,985 were approved and only 5 were rejected. The low rejection rate has raised concerns about the court's independence and diversity of judges. As of June 2024, eight of the eleven judges sitting on the FISA Court were appointed by Republican presidents.
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FISA Court's role in approving search warrants
The Foreign Intelligence Surveillance Act of 1978 (FISA) established the United States Foreign Intelligence Surveillance Court (FISC), also called the FISA Court. The FISA Court is a 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.
FISA, as amended, establishes procedures for the authorization of electronic surveillance, use of pen registers and trap-and-trace devices, physical searches, and business records for the purpose of gathering foreign intelligence information. The Department of Justice must apply to the FISC to obtain a warrant authorizing electronic surveillance of foreign agents. For targets that are U.S. citizens or when communications are purely domestic, individualized warrants are required.
The FISA Court plays no role in reviewing whether the procedures it approved are actually complied with when intelligence agencies start eavesdropping on calls and reading people's emails. The only oversight for monitoring whether there is abuse comes from the executive branch itself: from the Department of Justice and Director of National Intelligence, which conduct "periodic reviews ... to evaluate the implementation of the procedure".
In 2005, The New York Times reported that the Bush administration had been conducting surveillance against U.S. citizens without specific approval from the FISA court for each case since 2002. This led to criticism of the court-sanctioned expansion of the scope of government surveillance and the court's creation of a secret body of law. In 2011, the Obama administration secretly won permission from the FISA Court to reverse restrictions on the National Security Agency's use of intercepted phone calls and emails, allowing the agency to deliberately search for Americans' communications in its databases.
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FISA amendments and their impact on privacy
The Foreign Intelligence Surveillance Act (FISA) was enacted in 1978 to address privacy violations by the federal government under President Richard Nixon. It established the Foreign Intelligence Surveillance Court (FISC) to oversee requests for surveillance warrants against foreign spies within the US. The FISC reviews requests for physical and electronic surveillance related to "foreign intelligence information" between "foreign powers" and their agents suspected of espionage or terrorism.
Since its inception, FISA has undergone several amendments, particularly after the September 11 attacks, which have broadened its scope and raised privacy concerns. The FISA Amendments Act of 2008, for example, added procedures for acquiring the communications of certain persons outside the US. It also provided protections for electronic communication service providers who assist in surveillance under specific conditions, such as when certified by the Attorney General (AG) and connected to authorised intelligence activities.
The impact of these amendments on privacy has been mixed. On the one hand, FISA amendments have expanded the government's surveillance powers, potentially encroaching on civil liberties. For instance, the 2008 law legalised the Bush administration's warrantless wiretapping program, allowing the NSA to collect Americans' communications without warrants and with limited oversight. This has prompted senators to propose amendments to impose limits on this power, such as requiring basic information disclosure about the scope of domestic information collection and prohibiting "reverse targeting" and "back-door searches" that infringe on Americans' privacy.
On the other hand, some amendments have aimed to enhance privacy protections and increase transparency. For instance, the USA Freedom Act requires the government to declassify and publicly release significant interpretations of law by the FISC, allowing for some public oversight of the court's activities. Additionally, proposed amendments to the FAA seek to compel the government to provide declassified versions of the FISA Court's opinions, ensuring that senators and the public can understand how the law is being interpreted and its implications for privacy.
The FISA court itself has been criticised for lacking diversity in its judges, with concerns that it may create a body of law without sufficient external input, undermining the adversarial system in American justice. This has led to debates about the balance between national security and privacy, with ongoing discussions about how to best protect Americans' civil liberties while also addressing legitimate security concerns.
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Criticisms and concerns surrounding the FISA Court
The Foreign Intelligence Surveillance Court (FISC), or FISA Court, has faced a number of criticisms and concerns since its creation in 1978.
Firstly, the FISA Court has been criticised for its lack of transparency and secrecy. This lack of transparency has led to concerns that the court is not adequately held accountable for its actions. There have been calls for increased transparency and greater public access to the court's proceedings and decisions.
Secondly, there are concerns that the FISA Court has failed to adequately protect civil liberties and privacy rights. Critics argue that the court has become a rubber stamp for the government's surveillance requests, issuing blanket approvals of sweeping data collection programs affecting millions of Americans. The court's decisions have been criticised for not providing adequate safeguards against abuse and for exceeding its authority and violating the Fourth Amendment by issuing general warrants.
The FISA Court's role in approving surveillance warrants against foreign spies inside the United States has also been a cause for concern. In 2013, it was revealed that the court had issued a warrant ordering Verizon to provide the NSA with comprehensive call detail records, including location data, for all calls in its system, including those that occurred wholly within the United States. This sparked a public outcry and further criticism of the court.
Additionally, there have been concerns about the potential for unreasonable domestic searches and seizures under FISA. The disclosures of Edward Snowden revealed the extent of surveillance activities that impacted US citizens, bringing these concerns into sharp focus.
Finally, some have criticised the FISA Court for its handling of specific cases, such as the issuance of FISA warrants against Carter Page, which were found to have numerous errors and omissions and to be based on politically motivated sources.
There have been several proposals for reform to address these criticisms and concerns, including increased transparency, the appointment of a special advocate or amicus curiae to protect privacy and civil liberties, and strengthened oversight mechanisms.
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Frequently asked questions
The Foreign Intelligence Surveillance Court was created in 1978.
The Foreign Intelligence Surveillance Act of 1978 (FISA) created the FISA court.
The FISA court's primary role is to review applications from federal law enforcement and intelligence agencies for approval of electronic surveillance, physical search, and other investigative actions for foreign intelligence purposes.
There are 11 judges on the FISA court, each serving a maximum term of seven years.
The judges on the FISA court are designated by the Chief Justice of the United States and are typically federal district judges.
