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The '''Foreign Intelligence Surveillance Act of 1978''' ('''FISA''', {{USStatute|95|511|92|1783}}, {{usctc|50|36}}) is a [[Law of the United States|United States federal law]] that establishes procedures for the [[surveillance]] and collection of foreign intelligence on domestic soil.<ref name=":0">[https://sgp.fas.org/crs/intel/IF11451.pdf ''Foreign Intelligence Surveillance Act (FISA): An Overview''] (updated April 6, 2021), [[Congressional Research Service]].</ref>
FISA was enacted in response to revelations of widespread privacy violations by the federal government [[Presidency of Richard Nixon|under
"Agent of a foreign power means—<br />
(1) any person other than a United States person, who—
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=== Section 702 ===
Following the controversy over [[Stellar Wind]], Congress later legalized a form of that program in Section 702.
==Provisions==
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The Attorney General is required to make a certification of these conditions under seal to the [[Foreign Intelligence Surveillance Court]],<ref name="reportfiscunderseal">{{USC|50|1802(a)(3)}}, Requirement of the Attorney General's to file reports under seal on warrantless surveillance to the FISC</ref> and report on their compliance to the [[U.S. House Permanent Select Committee on Intelligence|House Permanent Select Committee on Intelligence]] and the [[U.S. Senate Select Committee on Intelligence|Senate Select Committee on Intelligence]].<ref name="reportcongresscompliance">{{USC|50|1802(a)(2)}}, Requirement of the Attorney General's to report on compliance with warrantless surveillance requirements to Congress</ref>
Since {{usc|50|1802}}(a)(1)(A) of this Act specifically limits warrantless surveillance to foreign powers as defined by 50 U.S.C. §1801(a) (1),(2),
Under 50 U.S.C. § 1811, the President may also authorize warrantless surveillance at the beginning of a war. Specifically, he may authorize such surveillance "for a period not to exceed fifteen calendar days following a declaration of war by the Congress".<ref name="war exception">[https://www.law.cornell.edu/uscode/text/50/1811- 50 U.S.C. § 1811] – Authorization during time of war</ref>
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Proceedings before the FISA court are ''[[ex parte]]'' and non-adversarial. The court hears evidence presented solely by the [[United States Department of Justice|Department of Justice]]. There is no provision for a release of information regarding such hearings, or for the record of information actually collected. The [[USA Freedom Act]] (Section 402), however, requires the government to declassify and publicly release "to the greatest extent practicable" each order, decision and opinion of the court if it contains a "significant construction or interpretation of law."<ref>{{Cite web|url=https://www.congress.gov/bill/114th-congress/house-bill/2048/text|title=Text - H.R.2048 - 114th Congress (2015-2016): USA FREEDOM Act of 2015|last=F.|first=Sensenbrenner|date=2015-06-02|website=www.congress.gov|language=en|access-date=2018-05-05}}</ref>
FISC meets in secret, and approves or denies requests for [[search warrants]]. Only the number of warrants applied for, issued and denied, is reported. In 1980 (the first full year after its inception), it approved 322 warrants.<ref>{{Cite web|url=https://fas.org/irp/agency/doj/fisa/1980rept.html|title=Foreign Intelligence Surveillance Act 1980 Annual Report}}</ref> This number has steadily grown to 2,224 warrants in 2006.<ref>https://fas.org/irp/agency/doj/fisa/2006rept.pdf {{Bare URL PDF|date=March 2022}}</ref> In the period 1979–2006, a total of 22,990 applications for warrants were made to the Court of which 22,985 were approved (sometimes with modifications; or with the splitting up, or combining, of warrants for legal purposes), and only 5 were definitively rejected.<ref>{{Cite web|url=https://epic.org/privacy/surveillance/fisa/stats/default.html|title=EPIC - Foreign Intelligence Surveillance Act Court Orders 1979-2017|publisher=Electronic Privacy Information Center|access-date=December 11, 2019|archive-date=December 11, 2019|archive-url=https://web.archive.org/web/20191211162625/https://epic.org/privacy/surveillance/fisa/stats/default.html|url-status=dead}}</ref>
Denials of FISA applications by the FISC may be appealed to the [[United States Foreign Intelligence Surveillance Court of Review|Foreign Intelligence Surveillance Court of Review]]. The Court of Review is a three-judge panel. Since its creation, the court has come into session twice: in 2002 and 2008.
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==Constitutionality==
===Before FISA===
In 1967, the [[Supreme Court of the United States]] held that the requirements of the [[Fourth Amendment to the United States Constitution|Fourth Amendment]] applied equally to electronic surveillance and to physical searches. ''[[Katz v. United States]]'', 389 U.S. 347 (1967). The Court did not address whether such requirements apply to issues of [[national security]]. Shortly after, in 1972, the Court took up the issue again in ''[[United States v. U.S. District Court|United States v. United States District Court, Plamondon]]'', 407 U.S. 297 (1972), where the court held that court approval was required in order for the domestic surveillance to satisfy the Fourth Amendment
A plurality opinion in ''Zweibon v. Mitchell'', 516 F.2d 594 (D.C. Cir. 1975), held that a warrant was required for the domestic surveillance of a domestic organization. In this case, the court found that the domestic organization was not a "foreign power or their agent", and "absent exigent circumstances, all warrantless electronic surveillance is unreasonable and therefore unconstitutional."
===Post-FISA===
There have been very few cases involving the [[constitutional]]ity of FISA. Two lower court decisions found FISA constitutional. In ''United States v. Duggan'', 743 F.2d 59 (2d Cir. 1984), the [[defendant]]s were members of the [[Irish Republican Army]]
In the ''United States v. Nicholson'', 955 F. Supp. 588 (E.D. Va. 1997), the defendant moved to suppress all [[evidence (law)|evidence]] gathered under a FISA order
However, in a third case, the special review court for FISA, the equivalent of a Circuit Court of Appeals, opined differently. In ''In re Sealed Case'', 310 F.3d 717, 742 (FISA Ct. Rev. 2002), the special court stated "[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information . ... We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."
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On March 16, 2006, Senators [[Mike DeWine]] (R-OH), [[Lindsey Graham]] (R-SC), [[Chuck Hagel]] (R-NE), and [[Olympia Snowe]] (R-ME) introduced the Terrorist Surveillance Act of 2006 (S.2455),<ref>{{Cite web|url=https://fas.org/irp/congress/2006_cr/dewine031606.html|title=Dewine, Graham, Hagel and Snowe Introduce the Terrorist Surveillance Act of 2006}}</ref><ref>{{Cite web|url=http://www.cdt.org/security/20060324dewinebill.pdf|title=Dewine Bill as introduced}}</ref> under which the President would be given certain additional limited statutory authority to conduct electronic surveillance of suspected terrorists in the United States subject to enhanced Congressional oversight. Also on March 16, 2006, Senator [[Arlen Specter]] (R-PA) introduced the [[National Security Surveillance Act of 2006]] ({{USBill|110|S.|2453}}),<ref>{{Cite web|url=http://information-retrieval.info/docs/SpecterFloorStmt.pdf|title=Specter Floor Statement}}</ref><ref>{{Cite web|url=http://information-retrieval.info/docs/NSAfinal.pdf|title=Specter Bill as introduced}}</ref> which would amend FISA to grant retroactive amnesty<ref>[https://www.washingtonpost.com/wp-dyn/content/article/2006/06/08/AR2006060801992.html Specter Offers Compromise on NSA Surveillance], ''The Washington Post'', June 9, 2006</ref> for warrantless surveillance conducted under presidential authority and provide FISA court (FISC) jurisdiction to review, authorize, and oversight "electronic surveillance programs". On May 24, 2006, Senator Specter and Senator [[Dianne Feinstein]] (D-CA) introduced the [[Foreign Intelligence Surveillance Improvement and Enhancement Act]] of 2006 ({{USBill|110|S.|3001}}) asserting FISA as the exclusive means to conduct foreign intelligence surveillance.
All three competing bills were the subject of Judiciary Committee hearings throughout the summer.<ref>{{Cite web|url=https://fas.org/irp/congress/2006_hr/index.html#fisa4|title=Intelligence: Congress: 2006 Hearings}}</ref> On September 13, 2006, the Senate Judiciary Committee voted to approve all three mutually exclusive bills, thus, leaving it to the full Senate to resolve.<ref>[https://fas.org/blog/secrecy/2006/09/conflicting_bills_on_warrantle.html Conflicting Bills on Warrantless Surveillance Advance in Senate] {{Webarchive|url=https://web.archive.org/web/20130414170236/http://www.fas.org/blog/secrecy/2006/09/conflicting_bills_on_warrantle.html |date=April 14, 2013 }}, Secrecy News, September 14, 2006</ref>
On July 18, 2006, U.S. Representative [[Heather Wilson]] (R-NM) introduced the [[Electronic Surveillance Modernization Act]] ({{USBill|110|H.R.|5825}}). Wilson's bill would give the President the authority to authorize electronic surveillance of international phone calls and e-mail linked specifically to identified terrorist groups immediately following or in anticipation of an armed or terrorist attack on the United States. Surveillance beyond the initial authorized period would require a FISA warrant or a presidential certification to Congress. On September 28, 2006, the House of Representatives passed Wilson's bill and it was referred to the Senate.<ref>{{cite web |url=http://wilson.house.gov/NewsAction.asp?FormMode=Releases&ID=1309 |title=House Passes Wilson FISA Bill |access-date=June 1, 2016}}{{dead link|date=June 2016|bot=medic}}{{cbignore|bot=medic}}, Press Release, September 29, 2006.</ref>
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In a September 10, 2007 address at a symposium on modernizing FISA held at [[Georgetown University Law Center]]'s National Security Center, [[Ken Wainstein|Kenneth L. Wainstein]], [[Assistant Attorney General of the United States|Assistant Attorney General for National Security]], argued against the current six-month [[sunset provision]] in the Protect America Act of 2007, saying that the broadened surveillance powers the act provides for should be made permanent. Wainstein proposed that internal audits by the Office of the [[Director of National Intelligence]] and the [[United States Department of Justice National Security Division|National Security Division of the Justice Department]], with reporting to select groups of Congressmen, would ensure that the expanded capability would not be abused.<ref>{{cite magazine |author=Ryan Singel |title=Government Promises to Self-Audit Spying to Make Powers Permanent |magazine=Wired|date=September 11, 2007 |url=http://blog.wired.com/27bstroke6/2007/09/government-prom.html |access-date=September 11, 2007}}</ref>
Also on September 10, DNI [[John Michael McConnell|Mike McConnell]] testified before the [[Senate Committee on Homeland Security and Governmental Affairs]]. He mistakenly claimed that the Protect America Act had helped foil a major terror plot in Germany
Speaking at [[National Security Agency]] headquarters in Fort Meade, Maryland on September 19, 2007, President [[George W. Bush]] urged Congress to make the provisions of the Protect America Act permanent. Bush also called for retroactive immunity for telecommunications companies who had cooperated with government surveillance efforts, saying, "It's particularly important for Congress to provide meaningful liability protection to those companies now facing multibillion-dollar lawsuits only because they are believed to have assisted in efforts to defend our nation, following the 9/11 attacks".<ref>{{cite web |author=Anne Broache |title=President Bush rallies for immortal spy law changes, telco protection |publisher=CNET News.com |date=September 12, 2007 |url=http://www.news.com/8301-10784_3-9781991-7.html |access-date=September 20, 2007}}</ref>
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On October 18, 2007, the House Democratic leadership put off a vote on the proposed legislation by the full chamber to avoid consideration of a Republican measure that made specific references to [[Osama bin Laden]]. At the same time, the [[Senate Intelligence Committee]] reportedly reached a compromise with the White House on a different proposal that would give telephone carriers legal immunity for any role they played in the National Security Agency's domestic eavesdropping program approved by President Bush after the Sept. 11 terrorist attacks.<ref>{{cite news |author=Eric Lichtblau |title=Senate Deal on Immunity for Phone Companies |work=The New York Times |date=October 18, 2007 |url=https://www.nytimes.com/2007/10/18/washington/18nsa.html?pagewanted=print |access-date=October 18, 2007}}</ref>
On November 15, 2007, the [[Senate Judiciary Committee]] voted 10–9 along party lines to send an alternative measure to the full Senate other than the one the intelligence committee had crafted with the White House
On the same day, the House of Representatives voted 227–189 to approve a Democratic bill that would expand court oversight of government surveillance inside the United States while denying immunity to telecom companies
{{wikisource|Senator Dodd Speaks in Opposition to FISA Bill on Floor of U.S. Senate}}
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===2023 short-term reauthorization===
Pursuant to the most recent reauthorization in 2017, Section 702 of FISA was set to expire by the end of 2023.<ref>{{Cite web |date=2023-01-12 |title=NSA director pushes Congress to renew surveillance powers |url=https://apnews.com/article/politics-united-states-government-us-republican-party-surveillance-donald-trump-aa98d51e59d02a1361833d1a4f431e23 |access-date=2023-04-10 |website=AP NEWS |language=en}}</ref> At the beginning of 2023, several [[Presidency of Joe Biden|Biden administration]] officials began urging Congress to renew the provision, including National Security Advisor [[Jake Sullivan]], Attorney General [[Merrick Garland]], Director of National Intelligence, [[Avril Haines]], and NSA Director [[Paul M. Nakasone]].<ref>{{Cite web |date=2023-02-28 |title=US officials make case for renewing FISA surveillance powers |url=https://apnews.com/article/fisa-surveillance-intelligence-espionage-terrorism-congress-80f88dde705d578f7535ae167d90a90d |access-date=2023-04-10 |website=AP NEWS |language=en}}</ref> Federal authorities and other advocates have argued that Section 702 is critical to national security, whereas critics have reaffirmed ongoing concerns about privacy and civil liberties.<ref name="Savage"/><ref>{{Cite web |title=Today Is One Of The Biggest Surveillance Votes In The US. Will The FBI Finally Stop Spying On Americans? |url=https://tuta.com/blog/702-open-letter-against-surveillance |access-date=2023-12-29 |website=Tuta |date=December 12, 2023}}</ref> Several lawmakers, particularly among House Republicans, have called for any reauthorization to be contingent on several reforms,<ref>{{Cite web |title=House GOP group prepping for surveillance renewal fight |url=https://therecord.media/house-gop-intel-group-prepping-for-surveillance-renewal-fight |access-date=2023-04-10 |website=The Record |first=Martin |last=Matishak |date=October 4, 2022}}</ref> including limiting the scope of who can be investigated, requiring a warrant for surveillance in all instances, and restricting the amount of time collected data can be stored.<ref name="Sabin"/> According to an expected clarification report on US espionage released on April 21, 2023, the number of times the FBI looked up information about Americans in a repository of information collected under Section 702 of the Foreign Intelligence Surveillance Act in 2022, decreased by more than 95% in 2022. The cuts follow a series of reforms the FBI made in the summer of 2021 to limit database searches for information about Americans who correspond with foreigners under surveillance.<ref>{{cite news |last1=Sakellariadis |first1=John |title=Government report shows steep decline in FBI's 'backdoor searches' on Americans |url=https://www.politico.com/news/2023/04/28/report-fbi-search-americans-00094456 |publisher=Politico |date=28 April 2023}}</ref> On December 14, 2023, Congress passed the [[National Defense Authorization Act for Fiscal Year 2024|National Defense Authorization Act]], which included a short-term extension of Section 702 until April 19, 2024.<ref>{{Cite news |last=Beitsch |first=Rebecca |title= Congress approves short-term extension of warrantless surveillance powers |url=https://thehill.com/policy/national-security/4360341-fisa-congress-approves-short-term-extension-warrantless-surveillance-powers/ |work=The Hill |date=14 December 2023}}</ref><ref>{{Cite news |last=Sabin |first=Sam |title=Lawmakers push surveillance debate to 2024 |url=https://www.axios.com/2023/12/16/fisa-surveillance-section-702-2024 |publisher=Axios |date=16 December 2023}}</ref>
=== Reforming Intelligence and Securing America Act of 2024 ===
On April 10, 2024, [[Donald Trump]] urged Congress to "kill FISA" based on claims of FBI surveillance during his [[Donald Trump 2016 presidential campaign|2016 presidential campaign]], leading libertarian Republicans to join progressive Democrats in opposing Section 702's reauthorization on privacy-related grounds. To secure its passage, [[Speaker of the United States House of Representatives|House Speaker]] [[Mike Johnson]] reduced the reauthorization to two years, rather than the typical five-year term, to allow Trump to veto a hypothetical 2026 reauthorization if he wins the [[2024 United States presidential election|2024 presidential election]].<ref>{{Cite news |last=Savage |first=Charlie |last2=Broadwater |first2=Luke |date=2024-04-20 |title=Senate Passes Two-Year Extension of Surveillance Law Just After It Expired |url=https://www.nytimes.com/2024/04/20/us/politics/senate-passes-surveillance-law-extension.html |access-date=2024-04-22 |work=[[The New York Times]] |language=en-US |issn=0362-4331}}</ref> After Congress rejected various privacy-related amendments to minimize the gap in Section 702 authorization, the Senate approved the bill by a 60–34 vote with bipartisan support, and President [[Joe Biden]] signed the two-year reauthorization on April 20, 2024.<ref>{{Cite news |date=20 April 2024 |title=Biden Signs Reauthorization of Surveillance Program Into Law Despite Privacy Concerns |url=https://www.npr.org/2024/04/20/1246076114/senate-passes-reauthorization-surveillance-program-fisa |access-date=22 April 2024 |work=[[NPR]]}}</ref>
==See also==
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==External links==
{{Spoken Wikipedia|En-ForeignIntelligenceSurveillanceAct-article.ogg|date=2017-11-27}}
* [https://www.govinfo.gov/content/pkg/COMPS-1449/uslm/COMPS-1449.xml Foreign Intelligence Surveillance Act of 1978] as amended ([https://www.govinfo.gov/content/pkg/COMPS-1449/pdf/COMPS-1449.pdf PDF]/[https://www.govinfo.gov/app/details/COMPS-1449
* [https://www.govinfo.gov/content/pkg/COMPS-13936/uslm/COMPS-13936.xml FISA Amendments Reauthorization Act of 2017] as amended ([https://www.govinfo.gov/content/pkg/COMPS-13936/pdf/COMPS-13936.pdf PDF]/[https://www.govinfo.gov/app/details/COMPS-13936 details]) in the GPO Statute Compilations collection
* {{cite web|url=https://www.eff.org/Censorship/Terrorism_militias/fisa_faq.html |title=The Electronic Frontier Foundation's Foreign Intelligence Surveillance Act FAQ |access-date=2005-12-21 |url-status=dead |archive-url=https://web.archive.org/web/20060303211716/http://www.eff.org/Censorship/Terrorism_militias/fisa_faq.html |archive-date=March 3, 2006 |df=mdy }}
* [http://www.epic.org/privacy/terrorism/fisa/ EPIC FISA page] ({{Webarchive|url=https://web.archive.org/web/20070912161703/http://www.epic.org/privacy/terrorism/fisa/ |date=September 12, 2007 }})
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* [http://www.nybooks.com/articles/22656 "The Need to Roll Back Presidential Power Grabs"], by [[Arlen Specter]], ''[[The New York Review of Books]]'', Volume 56, Number 8. May 14, 2009
{{Presidency of Jimmy Carter}}
{{US Intelligence Reforms}}
{{Patriot Act}}
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