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Foreign Intelligence Surveillance Act (FISA) Part 1 (podcast transcript)

HEALEY: Hello. This is Alison HEALEY from the FLETC Legal Division. I’m here with Mr. Jim McADAMS, Senior Instructor in the Legal Division, to talk about the Foreign Intelligence Surveillance Act, commonly known as “FISA.” Today, we will provide an overview of FISA and discuss why it is important for law enforcement officers to know about it. First, Mr. McADAMS, please tell us a little bit about yourself.

McADAMS: [significant expertise in the criminal justice field; 25 year career with the DOJ – S.D. Fl. USAO experience, OIPR, Noriega case]

HEALEY: You are quite familiar with both criminal investigations and FISA and undoubtedly have some terrific insights to share. So, start by telling us, what exactly is FISA?

McADAMS: FISA—the Foreign Intelligence Surveillance Act—is legislation that authorizes the use of electronic surveillance and physical searches to obtain foreign intelligence information. It is a valuable tool that is used to thwart terrorism and, more generally, to gather information relating to the national defense, security, and foreign affairs of the United States.

HEALEY: All right. It sounds like FISA is useful for detecting terrorist plots like the alleged JFK Airport and Fort Dix ones that were recently uncovered. The Act also may help prevent another attack like 9/11. When was this law enacted, and why?

McADAMS: FISA is a very important tool, especially with the threats to national security that the United States currently faces. The Act has been modified recently, but it actually is almost 30 years old. FISA was enacted in 1978 after people learned that the U.S. government had abused national security authorities. Before 1978, warrantless electronic surveillance for national security purposes was authorized by the President. During the Watergate scandal in the 1970s, Congress and the public learned that the privacy of some U.S. citizens had been invaded. Congress responded by developing the Foreign Intelligence Surveillance Act. FISA established that non-criminal electronic surveillances were only permissible for the purpose of collecting foreign intelligence. Second, the law identified who could be targeted for electronic surveillance— namely, foreign powers and agents of foreign powers. Third, the law set forth a probable cause standard that had to be met before electronic surveillance was allowed. Fourth, the Act established two Foreign Intelligence Surveillance Courts. FISA was intended to protect U.S. persons while allowing the government to monitor the activities of foreign powers and agents of foreign powers in the United States.

HEALEY: You mentioned U.S. persons, foreign powers, and agents of foreign powers. Who qualifies as a U.S. person, and what do the other terms mean?

McADAMS: For purposes of FISA, a U.S. person is a person or corporation that is in the United States lawfully. This includes citizens, permanent resident aliens, U.S. corporations, and associations substantially comprised of U.S. persons.

Foreign powers and agents of foreign powers are the potential targets for FISA surveillance. Foreign powers are foreign governments and their representatives, factions of foreign nations, international terrorist groups, and entities directed and controlled by one or more foreign governments.

An agent of a foreign power is basically anyone other than a U.S. person who acts in the United States on behalf of a foreign power. This includes officers of a foreign government, members of international terrorist groups, and visitors who are secretly gathering intelligence. Additionally, an agent of a foreign power is anyone, including a U.S. person, who engages in international terrorism activities or secretly gathers intelligence for a foreign power and may break the law by doing so.

HEALEY: How does FISA protect U.S. persons if they can still be targeted for electronic surveillance?

McADAMS: U.S. persons receive more protection under the Act. First, they must knowingly act on behalf of a foreign power as described above; the same element of intent need not be shown for non-U.S. persons. Second, a U.S. person may not be considered a foreign power or agent of a foreign power solely based on acts protected by the First Amendment. Third, the collection of their communications must be carefully limited. Finally, a higher standard must be met before a court will approve electronic surveillance of U.S. persons.

HEALEY: So FISA is constitutional because it adequately protects U.S. persons. It meets the Fourth Amendment’s reasonableness standard and citizens cannot be targeted for speaking their minds or lawfully expressing themselves. Now, you said earlier that FISA established the rules governing “non-criminal electronic surveillances.” What about criminal surveillances?

McADAMS: Electronic surveillance in a criminal case, what we often hear called “wiretaps,” are controlled by Title III of the Omnibus Crime Control Act. While both FISA and Title III require probable cause before a warrant may issue under its authority, that threshold is achieved in different ways under FISA than it is under Title III. A FISA court must find probable cause to believe that the target of the surveillance is a foreign power or an agent of a foreign power. The court must also find probable cause that each of the places at which the surveillance is being directed is being used or about to be used by a foreign power or an agent of a foreign power. Title III authority is much narrower, however. For example, Title III is not permitted to be used for just any alleged criminal activity, only those specified in the statute as serious enough to warrant the use of such an invasive technique. Even if that requirement is met, the use of electronic surveillance may be authorized under Title III only if other, less invasive, techniques have been tried and failed, or would not be reasonably likely to achieve the same results as a wiretap. FISA, on the other hand, does not impose such stringent requirements.

HEALEY: All right. We’ve learned that FISA is the tool to use for electronic surveillances for national security purposes. Is that all that FISA is used for?

McADAMS: Actually, FISA’s scope is broader than electronic surveillance. It also is the authority for physical searches, pen registers and trap and trace devices, and certain business records, if the information sought is for national security purposes.

HEALEY: What are the requirements for physical searches under FISA?

McADAMS: The requirements are similar to those for electronic surveillance. A court must find probable cause that the target is a foreign power or an agent of a foreign power, and that the premises or property to be searched can be linked to a foreign power or agent of a foreign power.

HEALEY: Does the use of pen/trap devices under FISA also require probable cause?

McADAMS: No, pen register and trap and trace applications are simpler than the other FISA applications, though they are a bit trickier than criminal pen register or trap and trace applications. Under FISA, the government must show that foreign intelligence information not concerning a U.S. person is likely to be collected through the pen register or trap and trace, or that the information likely to be collected is relevant to an ongoing investigation to protect against international terrorism or secret intelligence activities. If able to make such showings by probable cause, the government may then track phone calls or any form of electronic communication such as e-mails. There is a very important caveat, however; the United States may not use the FISA pen register and trap and trace authority to investigate U.S. persons for activities that are protected by the First Amendment.

HEALEY: What about obtaining business records under FISA?

McADAMS: A FISA application for business records must state that the information is relevant to an authorized investigation to acquire foreign intelligence information. Books, papers, and any tangible thing are proper objectives for such applications. In this respect, it’s similar to a grand jury subpoena or other court order. Just as FISA’s pen and trap and trace authority must not be used to obtain U.S. person information protected by the First Amendment, that same limitation applies to business records as well.

HEALEY: FISA tools are different from criminal investigative tools. Does that mean that a special court is needed?

McADAMS: Yes, there is a Foreign Intelligence Surveillance Court, which consists of 11 federal district judges selected by the Chief Justice of the Supreme Court. The Court hears all FISA applications.

HEALEY: Is there also a special process to obtain a FISA order?

McADAMS: Yes. A FISA application is quite detailed and must undergo a significant review process before being submitted to a FISA judge. An agent works closely with the Office of Intelligence Policy and Review to develop an application. Once in final form, the application must be certified by a high-ranking official such as the FBI Director as being in compliance with all FISA requirements, approved by the Attorney General’s Counsel for Intelligence Policy, and then finally approved and signed by the Attorney General. The information requested must be foreign intelligence information that cannot be obtained by normal investigative techniques. Each application must include the FISC’s approved standardized minimization procedures, which protect U.S. persons’ privacy while taking national security needs into account.

HEALEY: FISA has a pretty broad scope and a detailed application process. In this podcast, we’ve provided an overview of the Act. We’ve discussed FISA’s history and purpose, and the type of information obtainable under the Act. Please join us for Part Two of our podcast as we discuss why it is important for law enforcement officers to know about FISA.