FISAREPORTAPR7

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Several times since 2001 President Bush has directed the National Security Agency (NSA) to execute electronic surveillance without a Foreign Intelligence Surveillance Act (FISA) Court warrant to authorize those activities. Under the current FISA law the President is required to apply for a warrant within 72 hours of starting the surveillance but he did not do so in some cases. Although the President has applied for warrants for many of the reported 10,000 to 20,000 surveillance actions since 2001 he holds that he does not have to apply for a warrant for more recent surveillance activities, even after the fact, because of his expanded Constitutional powers during a time of war.

FISA the Foreign Intelligence Surveillance Act (The Act) was enacted in 1978 and became Public Law 95-511. The bill was introduced by Senator Edward Kennedy in response to a congressional commission conclusion (The Church Commission) that the FBI, CIA and the National Security Agency had grossly violated privacy rights of many Americans through surveillances without oversight. The violations were of a Constitutional nature because some of the violations included wiretaps of domestic groups without warrants, a practice the Supreme Court determined in 1972 violates the Fourth Amendment.

The Act created the Foreign Intelligence Surveillance court and charged the Chief Justice to appoint seven judges to man the court. There are now ten judges appointed to the Court. The issues warrants based on the evidence provided supporting the wiretap. Primarily the Act focused on electronic surveillance outside the US but allowed for surveillance of American citizens if the court concludes there is probable cause that they are agents of a foreign power.

In 1978 Congress would not authorize warrant-less searches of homes and offices but in the 1990s Attorney General Janet Reno of the Clinton administration authorized the physical search without a warrant of the premises of a suspected spy in the CIA, according to the National Center for Security Studies (NCSS). Urged by the Clinton administration Congress eventually expanded the Act to allow for physical searches without a warrant and a subsequent Supreme Court decision required that the government must tell an individual after the fact that his / her premises have been searched. The amount of time allowed before notifying the person has gradually been raised to the current 90 days.

In 1999 the Act was further expanded to include allowing for pen registers, trap and trace devices and business record searches of suspected foreign agents NCSS reported. In 2000 Congress redefined ‘agent of foreign power’ to include anyone entering the US with a fake ID or who obtains one once here.

{A pen register is a device that records all numbers 'dialed' from a telephone under surveillance and usually involves the participation of a landlord or other person who can give agents access to the suspect’s property. The definition also includes tapping into internet e-mail and other internet communications. Information gathered by a pen register does not, or is not supposed to include the content of the communications, just the numbers or, in the case of internet communications, the addresses. The trap and trace device is similar to the pen register but gathers the numbers or addresses that call to a number under surveillance.}

The PATRIOT Act of 2001 expanded the use of the FISA authority and eliminated some of the safeguards against abuse. A year later it was further amended to allow the attorney general 72 hours rather than 24 hours after beginning a surveillance to apply to the FISA court for a warrant. Two years later in 2004 Congress provided that a target of the surveillance does not have to be an agent of or acting on behalf of a foreign power.

Access to business records as provided by the original FISA bill were limited when the PATRIOT Act was reauthorized in March 2006.

Public law 95-511

Sponsor: Senator Edward M. Kennedy (D-MA)

Vote: Voting data for the 1978 Act is not available. Voting on revisions to the PATRIOT ACT that either extended FISA authority or expanded on authorizing government access to information can be found here…

S 2271 and HR 3199. Both bills include extensions and modifications of 16 provisions of the PATRIOT Act including electronic surveillance.

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CONGRESSIONAL RESEARCH SERVICE SUMMARY OF THE ACT AS OF OCTOBER 1978

CONGRESSIONAL RESEARCH SERVICE SUMMARY OF THE ACT AS OF OCTOBER 1978

SUMMARY AS OF:

(REVISED AS OF 10/05/78 -- Conference report filed in House, H. Rept. 95-1720)

Foreign Intelligence Surveillance Act - Title I: Electronic Surveillance within the United

States for Foreign Intelligence Purposes - Permits the President, acting through the Attorney General, to authorize electronic surveillances for foreign intelligence purposes without a court order in certain circumstances. Requires the Attorney General: (1) to certify that the minimization procedures governing these surveillances meet certain standards; and (2) to forward such procedures to the House and Senate intelligence committees at least 30 days prior to their going into effect. Provides for the Attorney General to direct a specified common carrier to render assistance. Directs the Attorney General to transmit a copy of the certification for electronic surveillance to the appropriate court where it is to be maintained under security measures and remain seal, except in certain circumstances.

Requires the Chief Justice of the United States to designate seven district court judges, who shall constitute a special court, each of whom shall have jurisdiction to hear applications for and grant orders approving electronic surveillance anywhere within the United States. Requires the Chief Justice to designate three Federal judges to comprise a special court of appeals which shall have jurisdiction to hear an appeal by the United States from the denial of any application. Grants the United States a further right to appeal an affirmance of denial to the Supreme Court. Provides that such judges shall serve for a maximum of seven years and shall not be eligible for re-designation.

Requires each application for any order approving electronic surveillance for foreign intelligence purposes to be approved by the Attorney General and to include among other information: (1) the identity of the officer making the application; (2) the authority conferred on the Attorney General by the President and the approval of the Attorney General to make the application; (3) the identity, if known,n of the subject of the surveillance; (4) the fact and circumstances justifying belief that the target of surveillance is a foreign power or an agent of a foreign power; (5) a description of the type of information sought and a certification by one of specified Federal officers that such official deems the information sought to be foreign intelligence information, and information which cannot feasibly be obtained by normal investigative techniques; (6) a

statement of the period of time for which the surveillance is required; and (7) a statement of procedures to be taken to minimize intrusion into the privacy of United States persons.

Directs the judge to enter an ex parte order as requested or as modified approving the electronic surveillance if he finds that the criteria specified have been met. Allows issuance of orders to approve surveillance for 90 days or the period necessary to achieve its purposes, whichever is less. Permits extensions of orders upon application for an extension made in the same manner as required for an original application.

Authorizes the Attorney General, upon a reasonable determination that an emergency situation exists, to authorize the emergency employment of electronic surveillance if the appropriate judge is informed by the Attorney General of such authorization at the time it is made and if an application is made as soon as practicable but not more than 24 hours after authorization.

Requires, in the absence of a judicial order, that surveillance terminate when the information sought is obtained, when the application for an order is denied, or 24 hours after authorization, whichever is earliest. Directs the Attorney General to retain applications and orders for electronic surveillance for at least ten years.

Prohibits the use or disclosure of any information concerning any United States person acquired from a disapproved emergency surveillance in any manner by Federal officers or employees without the consent of such person. Allows the Government to use such information to protect the life or the physical safety of a person, upon the approval of the Attorney General.

Authorizes electronic surveillance, not targeted against the communications of any particular person, by officers, employees, or agents of the United States in the normal course of their official duties. Specifies that such electronic surveillance shall be solely to: (1) test the capability of electronic equipment; (2) determine the existence and capability of electronic surveillance equipment being used by persons not authorized to conduct such surveillance; and (3) train intelligence personnel.

Allows information acquired from electronic surveillance conducted pursuant to this Act to be used and disclosed only for designated purposes or for the enforcement of the criminal law.

Provides for motions to supress evidence obtained or derived from electronic surveillance. Sets forth the procedure for determining the legality of electronic surveillance.

Requires the Attorney General to submit an annual report to the Administrative Office of the United States Courts and to Congress, including the number of applications made for orders and extensions of orders approving electronic surveillance and the number of such orders and extensions granted, modified, and denied.

Requires the Attorney General to inform the House and Senate Committees on Intelligence semiannually concerning all electronic surveillance under this Title.

Requires the Committees to report annually for five years to the House and Senate concerning the implementation of this Act, with recommendations.

Makes it a criminal offense for officers or employees of the United States to intentionally engage in electronic surveillance under color of law except as specifically authorized or to disclose information through unlawful electronic surveillance. Imposes civil and criminal liability for such violations and authorizes the recovery of actual damages, punitive damages, and reasonable attorney's fees by an aggrieved person other than a foreign power.

Permits the President, through the Attorney General, to authorize electronic surveillance without a court order to acquire foreign intelligence information for up to 15 days during a Congressionally declared war.

Title II: Conforming Amendments - Makes conforming amendments to existing criminal laws.

Title III: Effective Date - States that the provisions of this Act shall become effective upon enactment. Stipulates that any electronic surveillance approved by the Attorney General to gather foreign intelligence information shall not be unlawful if that surveillance is terminated or an order approving that surveillance is obtained within 90 days following the designation of the chief judges pursuant to this Act.

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