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Foreign Intelligence Surveillance Act (FISA)

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Overview of FISA

For ordinary criminal investigations, communications interception is viewed as a grave intrusion on the rights of privacy and speech. In United States v. U.S. District Court, 407 U.S. 297 (1972), the Supreme Court stated:

"Given these potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens."

In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA), which establishes a separate legal regime for "foreign intelligence" surveillance. Title III (the "Wiretap Statute) outlines the strict guidelines regulating ordinary law enforcement surveillance, while FISA regulates the government's collection of "foreign intelligence" information in furtherance of U.S. counterintelligence. FISA was initially limited to electronic eavesdropping and wiretapping. In 1994 it was amended to permit covert physical entries in connection with "security" investigations, and in1998, it was amended to permit pen/trap orders. FISA can also be used to obtain some business records.

Under the Fourth Amendment, a search warrant must be based on probable cause to believe that a crime has been or is being committed. This is not the general rule under FISA: surveillance under FISA is permitted based on a finding of probable cause that the surveillance target is a foreign power or an agent of a foreign power, irrespective of whether the target is suspected of engaging in criminal activity. However, if the target is a "U.S. person," there must be probable cause to believe that the U.S. person's activities may involve espionage or other similar conduct in violation of the criminal statutes of the United States. Nor may a U.S. person be determined to be an agent of a foreign power "solely upon the basis of activities protected by the first amendment to the Constitution of the United States."

Minimization Requirement

Although FISA surveillances must have an intelligence purpose (see below), courts allow FISA-obtained information to be used in criminal trials. However, FISA's "minimization" requirement mandates that procedures be implemented to minimize the collection, retention, and dissemination of information about United States persons. Minimization procedures are designed to prevent the broad power of "foreign intelligence gathering" from being used for routine criminal investigations. In a number of instances, however, there are overlaps between foreign intelligence gathering and criminal investigations. One common minimization procedure is what is known as an "information-screening wall." These "walls" require an official not involved in the criminal investigation to review the raw materials gathered by FISA surveillance and only pass on information that might be relevant evidence. The purpose is to ensure that criminal investigators do not use FISA authority for criminal investigations.

In March of 2002, the Attorney General proposed a new regime of minimization procedures. The Foreign Intelligence Surveillance Court ("FISC") rejected a government application for electronic surveillance shortly after these procedures went into effect. In the first published opinion of that court (described in detail below) the FISC imposed additional restrictions on intelligence community's interactions with criminal prosecutors. That FISC decision was overturned on appeal in In re Sealed Case, 310 F.3d 717 (FISCR 2002).

In 2014 President Obama ordered in Presidential Policy Directive 28 (PPD-28) that the intelligence community update existing or implement new policies to implement procedures for safeguarding all personal information collected through Signals Intelligence methods (including FISA). The Office of the Director of National Intelligence ("ODNI") has published these updated procedures as of May 16, 2017. The ODNI has also published additional minimization procedures that have been adopted by members of the intelligence community, including:

Foreign Intelligence Information

Foreign Intelligence Information (FII) is information that relates to U.S. ability to protect against possible hostile acts of a foreign power or an agent of a foreign power, sabotage or terrorism by a foreign power or agent, and clandestine intelligence activities by a foreign power or agent. FII includes information with respect to a foreign power or foreign territory that relates to the national defense, national security, or conduct of foreign affairs of the United States.

If the intended surveillance target is a U.S. person, the information must instead be "necessary to" protect against hostile acts, sabotage, or terrorism, or U.S. national defense, national security, or foreign affairs.

The Foreign Intelligence Surveillance Court

FISA established a special court--the Foreign Intelligence Surveillance Court (FISC)-- composed of seven federal district court judges appointed by the Chief Justice for staggered terms and from different circuits. Individual judges of the FISC review the Attorney General's applications for authorization of electronic surveillance aimed at obtaining foreign intelligence information. The FISC meets two days monthly.

The proceedings are not adversarial: they are based entirely on the DOJ's presentations through its Office of Intelligence Policy and Review.

Under FISA, the Justice Department reviews applications for counterintelligence warrants by agencies before submitting them to the FISC. The Attorney General must personally approve each final FISA application.

The application must contain, among other things:

  • a statement of reasons to believe that the target of the surveillance is a foreign power or agent of a foreign power, (subject to the relevant amendments made by the USA-PATRIOT Act, discussed below)
  • a certification from a high-ranking executive branch official stating that the information sought is deemed to be foreign intelligence information, and that the information sought cannot reasonably be obtained by normal investigative techniques;
  • statements regarding all previous applications involving the target;
  • detailed description of the nature of the information sought and of the type of communication or activities to be subject to the surveillance;
  • the length of time surveillance is required;
  • whether physical entry into a premises is necessary, and
  • proposed procedures to minimize the acquisition, use, and retention of information concerning nonconsenting U.S. persons.

For U.S. persons, the FISC judge must find probable cause that one of four conditions has been met:

(1) the target knowingly engages in clandestine intelligence activities on behalf of a foreign power which "may involve" a criminal law violation;

(2) the target knowingly engages in other secret intelligence activities on behalf of a foreign power under the direction of an intelligence network and his activities involve or are about to involve criminal violations;

(3) the target knowingly engages in sabotage or international terrorism or is preparing for such activities; or

(4) the target knowingly aids or abets another who acts in one of the above ways.

An order of the FISC may approve electronic surveillance of an agent of a foreign power for ninety days and of a foreign power for a year. Extensions may be granted on the same terms.

The records and files of the cases are sealed and may not be revealed even to persons whose prosecutions are based on evidence obtained under FISA warrants (except to a limited degree set by district judges' rulings on motions to suppress). There is no provision for the return of executed warrants to the FISC, for certification that the surveillance was conducted according to the warrant and its "minimization" requirements, or for inventory of items taken pursuant to a FISA warrant.

The Foreign Intelligence Surveillance Court of Review

FISA provides for government appeals of FISC decisions to be made to the Foreign Intelligence Surveillance Court of Review. As of June, 2002, the Court of Review had never met, nor had an appeal ever been lodged. The court convened for the first time on September 9, 2002, to hear a unilateral appeal from the Department of Justice appealing a May 2002 FISC ruling (described in detail below).

The only public mandates governing the Court of Review, which are contained within FISA, direct that the information submitted to the court of review be done under the same seal of secrecy as that submitted to the FISC.

FISA Amendments in the USA-PATRIOT Act

The USA-PATRIOT Act, passed a month after September 11 to provide law enforcement with the tools necessary to combat the war against terrorism, contained several provisions enhancing the government's surveillance authority under FISA. See EPIC's USA-PATRIOT Act Page.

Lower Surveillance Standard

As originally passed, any FISA investigation must have had the collection of Foreign Intelligence Information as its sole or "primary purpose." The USA-PATRIOT Act expanded the application of FISA to those situations where foreign intelligence gathering is merely "a significant" purpose of the investigation. "Significant" is not defined, which vagueness will lead to inconsistent determinations and potential overuse of the FISA standards. The more lenient standards that the government must meet under FISA (as opposed to the stringent requirements of Title III) are justified by the fact that FISA's provisions facilitate the collection of foreign intelligence information, not criminal evidence. This traditional justification is eliminated where the lax FISA provisions are applicable to the interception of information relating to a domestic criminal investigation. The change is a serious alteration to the delicate constitutional balance reflected in the prior legal regime governing electronic surveillance.

Multi-Point ("Roving Wiretap") Authority

The USA-PATRIOT Act further expanded FISA to permit "roving wiretap" authority, which allows the interception of any communications made to or by an intelligence target without specifying the particular telephone line, computer or other facility to be monitored. Prior law required third parties (such as common carriers and others) "specified in court-ordered surveillance" to provide assistance necessary to accomplish the surveillance--under the new law, that obligation has been extended to unnamed and unspecified third parties.

Such "generic" orders could have a significant impact on the privacy rights of large numbers of innocent users, particularly those who access the Internet through public facilities such as libraries, university computer labs and cybercafes. Upon the suspicion that an intelligence target might use such a facility, the FBI can now monitor all communications transmitted at the facility. The problem is exacerbated by the fact that the recipient of the assistance order (for instance, a library) would be prohibited from disclosing the fact that monitoring is occurring.

The "generic" roving wiretap orders raise significant constitutional issues, as they do not comport with the Fourth Amendment's requirement that any search warrant "particularly describe the place to be searched." That deficiency becomes even more significant when where the private communications of law-abiding American citizens might be intercepted incidentally.

Liberalized Use of Pen Register/Trap and Trace Devices

Finally, the USA-PATRIOT Act removed the pre-existing statutory requirement that the government prove the surveillance target is "an agent of a foreign power" before obtaining a pen register/trap and trace order under the FISA. (A pen register collects the outgoing phone numbers placed from a specific telephone line, a trap and trace device captures the incoming numbers placed to a specific phone line. For example, a caller-id box is a trap and trace device.) The government can now obtain a pen register/trap and trace device "for any investigation to gather foreign intelligence information," without a showing that the device has, is or will be used by a foreign agent or by an individual engaged in international terrorism or clandestine intelligence activities. This amendment significantly eviscerates the constitutional rationale for the relatively lax requirements that apply to foreign intelligence surveillance. That laxity is premised on the assumption that Congress and the courts should not unduly restrain the Executive Branch, in pursuit of its national security responsibilities to monitor the activities of foreign powers and their agents. The removal of the "foreign power" predicate for pen register/trap and trace surveillance upsets that delicate balance.

However, USA-PATRIOT Act includes a provision prohibiting use of FISA pen register surveillance under any circumstances against a United States citizen where the investigation is conducted "solely on the basis of activities protected by the First Amendment." This exemption limits to some extent the potential overreach of this expanded authority.

Breakdown of the FISA Wall

In March 2002, the Attorney General submitted a memorandum to the FISC, requesting approval of newly created information sharing (minimization) procedures and other proposals, to be implemented upon approval at the Department of Justice. The Attorney General's proposed minimization procedures removed many of the existing limitations on the involvement of traditional criminal law enforcement officials in the FISA process. In a May 17, 2002, opinion, the FISC granted some of the Administration's newly requested powers, but refused to grant the Justice Department heightened information sharing powers proposed by the Attorney General.

According to the court, "in approving minimization procedures the Court is to ensure that the intrusiveness of foreign intelligence surveillances and searches on the privacy of U.S. persons is 'consistent' with the need of the United States to collect foreign intelligence information from foreign powers and their agents." The FISC found that the Justice Department and FBI had supplied inaccurate information to the court in more than 75 applications for search warrants and wiretaps, including one signed by then-FBI director Louis Freeh. Authorities also improperly shared intelligence information with investigators and prosecutors handling criminal cases on at least four occasions. These abuses were discovered by the Justice Department and reported to the FISC in 2000. In one case, the FISC was so angered by inaccuracies in affidavits submitted to the court that the judges barred the agent responsible from ever appearing again before the FISC. In rejecting the new minimization procedures, the FISC stated that "[i]n virtually every instance, the government's misstatements and omissions in FISA applications and violations of the Court's orders involved information sharing and unauthorized disseminations to criminal investigators and prosecutors."

Because of the Administration's history of misuse of FISA authority, the FISC decided that the new procedures proposed by Attorney General Ashcroft were improper because they would give prosecutors too much control over intelligence investigations, and would allow the government to "end-run" the more stringent Title III wiretap requirements by obtaining information for criminal investigations under the lower FISA standards. "The 2002 procedures appear to be designed to amend the law and substitute the FISA for Title III electronic surveillance and Rule 41 searches." The court was clearly unhappy with the lack of response from the Justice Department, which had not explained how the misrepresentations and abuses occurred.

Under the rules laid out in the 2002 FISC order, the Justice Department would have had to seek explicit court approval before disclosing information obtained in a FISA investigation with a criminal investigator or prosecutor. The DOJ procedures would have given criminal prosecutors routine access to such information, and provided that they be allowed to direct intelligence investigations when appropriate.

The Attorney General appealed the FISC order to the Foreign Intelligence Court of Review ("FISCR"). This was the first appeal of FISC order in the court's history. Until this incident, the FISC has approved all but one FISA application sought by the government since the court's inception. The Court of Review heard arguments from the Justice Department, from a coalition of civil liberties groups, and from the association of criminal defense attorneys. The FISCR issued its opinion on November 18, 2002, overturning the FISC decision and ordering the court to approve the government's applications for electronic surveillance.

FISA Warrantless Surveillance Reauthorization

The Protect America Act of 2007 (text) made several significant changes to the structure of FISA surveillance. The Act became law on August 5th, 2007, and will expire -- with some exceptions -- six months from that date. Lawmakers will during this period be discussing the reauthorization of these changes or further changes to these surveillance powers. The Protect America Act altered the definition of electronic surveillance; created additional procedures for authorization of intelligence gathering on a program-wide basis; and set up a procedure for the courts to review those programs. These changes are set to expire six months after the Act going into effect, with some exceptions. Other proposals, rejected in favor of the final bill, include S. 2011, and H.R. 3356.

Protect America Act Changes

FISA's new section 105A declares that "nothing in the definition of electronic surveillance . . . shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States." Since the FISA court procedures govern the use of electronic surveillance, this change in definition removes such surveillance from the review of the FISA court. There may be "surveillance" that is "electronic," but if it does not fit into the FISA law's definition of "electronic surveillance" then the FISA court does not control it. This provision permits the warrantless surveillance of Americans when the surveillance is "directed at" someone believed to be outside the United States -- whether that person outside the United States is an American or not.

Section 105B creates a set of procedures for the administration to use when acquiring information that is not "electronic surveillance." The government must certify that the program has reasonable procedures in place for determining that the acquisition of information "concerns" persons reasonably believed to be outside of the United States.The government must further certify that the acquisition is not "electronic surveillance." Certifications are also required that minimization procedures are followed and that "a significant purpose" of the acquisition is to obtain foreign intelligence information. The benefit the administration gains from following this procedure is that holders of information, such as telecommunicatiosn companies, are forced to comply. The holders of information are also immunized from lawsuits for having provided this information, notwithstanding any privacy laws that would otherwise hold the holders liable for releasing the information. These certifications are valid for up to a year.

Review of the procedures in 105B is provided by section 105C. The FISA court can review the administration's determination to see if it is "clearly erroneous." If it overturns the program, then the government can appeal to the FISA "Court of Review" and on to the Supreme Court. Even if overturned, the program can continue while these reviews and appeals are pending. The changes to the law are set to expire six months after enactment. However, any programs in place at the time of the expiration can continue their full course of up to a year.

News Stories on Protect America Act Changes:

  • Spy Master Admits Error, Newsweek, 9/12/2007. Director of National Intelligence Mike McConnel told Congress that the Protect America Act changes helped to stop a terror polot in Germany. He has since withdrawn that statement.
  • Transcript: Debate on Foreign Intelligence Surveillance Act, El Paso Times, 8/22/07. The Director of National Intelligence, Mike McConnel, goes on the record to discuss the FISA passage, private sector participation in illegal domestic spying, and the scope of the surveillance system.

Resources on Protect America Act Changes and Debate:

FBI Noncompliance with FISA Procedures

Background on "Crossfire Hurricane" and the Office of the Inspector General (OIG)'s 2019-2020 Reports

At the heart of the Crossfire Hurricane investigation, and the IG’s subsequent reports are the FBI’s internal, deficient procedures for handling FISA applications. The main procedures are the “Woods Procedures,” which the FBI implemented in 2001 following FISA application errors that led to the unauthorized dissemination of information with prosecutors and other criminal investigators. Their stated purposes are “to minimize factual inaccuracies in FISA applications” and to ensure that statements made in applications are “scrupulously accurate.” The Procedures require that every single fact in a FISA application is verified, but they do not require corroboration of information by a second source for facts attributed to one source; additionally, it is common for officers to start the FISA drafting process before verifying source information.

The Procedures were later incorporated into other internal FISA procedures, like the 2016 Standard Minimization Procedures Policy Guide (SMPPG), which require the FBI to maintain an accuracy sub-file called a “Woods File.” The Woods File must contain supporting documentation for every fact asserted in a FISA application. Because FISC relies heavily on the government’s factual assertions to make its probable cause determinations, these procedures are meant to ensure FBI case agents are indeed presenting full and accurate facts in their FISA applications.

In 2016-2017, the FBI conducted an investigation into certain members of the Trump campaign called “Crossfire Hurricane.” Carter Page was one of its targets. The FBI used FISA applications to obtain information during its investigation, including a FISA application to surveil Page. Although the FBI initially did not have sufficient facts showing probable cause to target Page, the FBI later used reports from Christopher Steele that prompted the FBI to begin drafting a FISA request. The Page FISA application was submitted in October 2016 and promptly granted. The FBI submitted five renewal applications in the first half of 2017, and all five renewals were granted by the FISC. In July 2018, the National Security Division (NSD) submitted a letter to the FISC informing them of certain factual omissions in the Page application, but it also noted that the applications still contained sufficient facts to support probable cause despite the omissions.

In March 2019, the IG initiated review of the Page application. In December 2019, the IG released a lengthy report detailing numerous deficiencies in the Page application stemming from the FBI’s failure to follow its own FISA procedures.

Then in March 2020, the IG released another report after an extended audit of the FBI’s compliance with these same procedures. The IG examined twenty-nine FISA applications, including both initial and renewal applications. The March Report largely found that, despite the Woods Procedures and SMPPG, the IG did “not have confidence that the FBI has executed its Woods Procedures in compliance with FBI policy.” Some of the audited applications lacked the necessary supporting documents; the FBI could not locate the Woods Files for four of the FISA applications it reviewed, and the FBI did not know if Woods Files had ever existed in three of those four. Even in the 25 remaining applications for which the FBI was able to locate Woods Files, every application contained at least some factual assertions that lacked proper support. In some cases, the assertions were entirely unsupported by any material in the Woods File; on average, the auditors found an average of twenty factual issues per application reviewed, ranging from about five to sixty-five per application. When FBI agents sought reauthorization from the FISC for those faulty applications, the report found that they failed to reverify those assertions as required by the Woods Procedures. To top it all off, already-existing accuracy reports made regularly by FBI field offices and the NSD’s Office of Intelligence identified procedural deficiencies in thirty-nine out of forty-two FISA applications reviewed. There were a total of 390 individual problems in these applications; neither the FBI nor NSD accuracy reports deemed any of the 390 issues to be material to the applications.

At the end of its report, the IG made two recommendations. First, that the FBI and NSD systematically examine their accuracy reviews to identify patterns or trends that will inform how the FBI can better train agents’ compliance with the Woods Procedures. Second, that the FBI perform a “physical inventory to ensure that Woods Files exist for every FISA application submitted to the FISC in all pending investigations.”

Legislative Reforms Following the OIG Reports

In response to the IG’s findings regarding inaccuracies and error in the FBI’s Carter Page FISA applications, both the USA FREEDOM Reauthorization Act of 2020 (H.R. 6172) and the Senate’s version of the bill (including the Lee-Leahy amendment) imposed limitations on intelligence officers to ensure greater accuracy in government applications to the FISA courts.

H.R. 6172 amended Titles I, III, IV, V, and VII of FISA to require government applicants to certify that the DOJ “has been apprised of all information that might reasonably call into question the accuracy of the application or the reasonableness of any assessment in the application.” Under Titles I and III, applications targeting U.S. persons would need to include “a statement describing the investigative techniques carried out before making the application.” The AG would be required to provide written approval of an investigation that targets a Federal elected official or candidate. The bill also provided for removal or suspension of Federal officers who “engage in deliberate misconduct” in proceedings before the FISA courts; it also defined penalties for these newly-enumerated FISA offenses.

The bill also tried to increase transparency within the FISA court system. It required declassification review and public release of each FISA court decision, order, or opinion including a “significant construction or interpretation of any provision of law” within 180 days of issuance. It also provided that any decision, order, or opinion issued before H.R. 6172’s enactment would need to be reviewed and released within a year of its enactment. This increased transparency also extended to files associated with relevant applications or orders, requiring them to include transcriptions of proceedings and “all written substantive communications” between the DOJ and the FISA courts. The bill also required annual reporting including the number of certifications made by FISCR, as well as the number of requests to certify a question of law made by an amicus.

The Lee-Leahy amendment to the USA FREEDOM Reauthorization Act also expanded government disclosures and created other accuracy procedures. For example, the amendment created a kind of Brady requirement for intelligence officers, requiring them to provide the FISC with all information, including exculpatory information, that is: “material determining whether the application satisfies the applicable requirements,” “call[s] into question the accuracy of the application,” and that “otherwise raise[s] doubts with respect to the findings that are required to be made...in order for the court order to be issued.” The amendment also would require increased disclosure and documentation by the government, coordination within the intelligence community, and stricter internal “compliance and auditing mechanisms.” This includes a requirement that the IG and DOJ audit FISA applications annually from the preceding year. The amendment finally would require that Section 215 warrants be based on a showing of probable cause that a known U.S. person is an agent of a foreign power, or that they have been or will soon be involved in an act of terrorism or illegal spy activities.

Ultimately, the 2020 Reauthorization Act did not become law.

Resources

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  • Federal Intelligence Court Rules Warrantless Wiretapping Legal. The Foreign Intelligence Surveillance Court of Review has ordered the release of a redacted opinion. The federal intelligence court ruled in August, 2008 that warrantless wiretapping of international phone calls and the interception of e-mail messages were permissible. Giving support to the Protect America Act, the Court found that "foreign intelligence surveillance possesses characteristics that qualify" for an exception in the interest of "national security". For more information, see EPIC's page on Foreign Intelligence Surveillance Act. (Jan. 15)
  • Telecom Immunity "Compromise" Okays Unaccountable Warrantless Surveillance. White House and Congressional officials have struck a deal (pdf) in ongoing debates on updating the Foreign Intelligence Surveillance Act (FISA). The deal will effectively end court inquiry into the President's warrantless surveillance program. Courts will be bound to follow the President's determination that the program was legal, rather than actually inquire into the program and judge the actions of the President and the Telecommunications companies. The proposal grants an expansion of warrantless surveillance powers from last year's Protect America Act until 2012, and requires that Inspectors General inquire into the warrantless surveillance program. Senators Leahy and Feingold have expressed deep opposition. (June 19)
  • FISA Orders Up, Government Reporting on National Security Letters Begins. According to the 2007 FISA report, the Foreign Intelligence Surveillance Court approved 2,370 application to conduct electronic surveillance and physical searches in the United States in 2007, up from 2,176 applications approved in 2006. For the first time, the report includes information regarding the total number of requests made by the Department of Justice with National Security Letter authority for information concerning U.S. persons. in 2006, the government made approximately 12,583 NSL requests for information concerning 4,790 U.S. persons. The 2007 NSL statistics are expected later this year. (May 1)
  • House Holds Fast on Privacy Law Enforcement, President's Unconstitutional Warrantless Surveillance Powers to Expire. The House of Representatives will recess this Thursday, allowing the Protect America Act to expire on Saturday. That law, passed in August, expanded the warrantless surveillance powers of the President. The White House also wants legal immunity for telephone companies that participated in the warrantless surveillance program. The House last year passed the RESTORE Act, which rejected the effort to gut the federal wiretap law. After extensive White House lobbying, the Senate this week passed S. 2248 with the immunity provision, but the House said no to the White House effort to adopt the Senate bill. EPIC and other groups are suing the Department of Justice for documents on the legal justification for the warrantless surveillance program.

  • Security Experts Warn That FISA Changes Weaken US Security. In a report in IEEE Security & Privacy, leading experts in computer security warn that the Protect America Act -- enacted as a temporary measure last August and the continuing subject of attention -- could make the United States vulnerable to attack. The paper, "Risking Communications Security: Potential hazards of the Protect America Act (pdf)," warns that warrantless wiretapping creates serious security risks, including the "danger of exploitation of the system by unauthorized users, danger of criminal misuse by trusted insiders, and danger of misuse by government agents." Congress continues to debate FISA changes, including making permanent the Protect America Act. (Jan. 31)

  • House, Key Senate Committee Reject Immunity for Telephone Companies that Violated Wiretap Law. House and Senate proposals to reform the Foreign Intelligence Surveillance Act (FISA) advanced without the controversial immunity provision. Senator Leahy, following action in the Senate Judiciary Committee on FISA legislation, said "When we give the government sweeping surveillance powers, there need to be clear rules and checks and balances to prevent abuses against the American people." Meanwhile, the House passed the RESTORE Act, which establishes new oversight for domestic surveillance and does not allow retroactive immunity for past violations of law. The Protect America Act, which these bills replace, is set to expire in February of 2008. (Nov. 16)
  • Congress Opens Investigation Into Warrantless Surveillance.The House Committee on Energy and Commerce has launched an investigation into the National Security Agency's domestic warrantless wiretapping program and the involvement of the telephone companies. "Congress has a duty to determine what occurred and also to examine the difficult position of the phone companies who may have been asked by the government to violate the privacy of their customers without the assurance of liability protections," said Committee Chairman John Dingell. Last year, EPIC joined almost 40 organizations in a statement (pdf) urging the Committee to investigate the program's possible violations of the privacy provisions of the Communications Act. (Oct. 4)
  • Director of National Intelligence on The Record About Spy Programs. In an on the record discussion with the El Paso Times, Director of National Intelligence Mike McConnell revealed past and current surveillance activities, as well as details of the passage of the new FISA law. For the first time, an administration official confirmed that private sector companies illegally assisted with the President's domestic spying program. According to McConnel, a FISA court judge refused to authorize certain interceptions of wired communications without a warrant. Complaining that it took 200 man hours to craft a warrant, McConnel argued that surveillance of a foreigner in a foreign country should not be restricted by warrants. Per McConnell, this prompted the administration to introduce 66 pages of changes to FISA. The final version was only 11 pages long. McConnell discussed that he had problems with one alternative proposal, because on language concerning minimization, but he did not elaborate. (Aug. 24)
  • Congress Enacts Sweeping Changes to FISA Law. Following a frantic, week-long push by the White House to expand domestic spying and reduce judicial oversight, the Congress passed amendments to the Foreign Intelligence Surveillance Act that will permit warrantless surveillance of American citizens when one party to the conversation may be outside of the United States. It is the most dramatic change in the 30 year history of the FISA and will leave millions of Americans subject to electronic surveillance, without court review, regardless of whether they are suspected of any wrongdoing. However, the amendments will sunset in 180 days, which will provide an opportunity for further debate in Congress. (Aug. 6)
  • Secret Surveillance Continues to Increase. The Foreign Intelligence Surveillance Act Report reveals that the government made 2,072 secret surveillance requests in 2005, a record high and 18 percent more than 2004. None of the requests were denied by the Foreign Intelligence Surveillance Court, the secretive body that issues the warrants. In contrast, the Department of Justice reports (pdf) that law enforcement agencies across the country were authorized to conduct 1,773 wiretaps, which are issued under a more stringent standard. The report on secret wiretap warrants also indicated that the government issued 9,254 National Security Letters during 2005. These letters can be used to obtain information about individuals without the government applying for a court-reviewed warrant. (May 2, 2006)
  • American Bar Association Says Unlawful Surveillance Should Stop. A new report (pdf) from the American Bar Association calls on the President to abide by constitutional checks and balances, and to end electronic surveillance inside the United States that does not comply with the Foreign Intelligence Surveillance Act. The Association overwhelmingly supported the report, which also urged the Congress to undertake comprehensive investigations. (Feb. 15, 2006)
  • Electronic Surveillance at an All-Time High in 2004. The Foreign Intelligence Surveillance Act Annual Report (pdf) reveals that there were 1758 applications for secret surveillance in 2004, an all-time high. None of the applications for secret suveillance warrants were denied. In 2004, as in 2003, more secret surveillance warrants were granted than federal wiretap warrants, which have more stringent standards. A report on federal wiretapm warrants in 2004 reveals that state and federal courts authorized 1,710 interceptions in 2004, an increase of 19 percent over 2003 and more than in any previous year. Federal officials made an all-time high 730 intercept applications in 2004, a 26 percent increase over 2003. (Apr. 29, 2005)
  • 2003 Surveillance Report: Secret Warrants Surpass Standard Warrants. The 2003 Foreign Intelligence Surveillance Act Annual Report (pdf) reveals that the Foreign Intelligence Surveillance Court granted 1724 applications for secret surveillance last year, more than in any previous year. The report shows that 2003 was the first year ever that more secret surveillance warrants were granted than federal wiretap warrants, which are issued only under a more stringent legal standard. The PATRIOT Act significantly expanded the government's authority to make use of secret surveillance, including in circumstances where part of the investigation is unrelated to an intelligence investigation. The report also reveals that a small number of applications for secret surveillance were denied in 2003 for the first time ever. For more information, see EPIC's FISA statistics page. (May 6, 2004)
  • FISA Wiretaps At All-Time High. According to the 2002 FISA Annual Report from the Attorney General, "All 1228 applications presented to the Foreign Intelligence Surveillance Court in 2002 were approved." In2001, 934 applications were approved. See EPIC's FISA statistics page. (May 1, 2003)
  • Surveillance Oversight Act Introduced. Members of the Senate Judiciary Committee have introduced the Domestic Security Oversight Act (pdf). The bill would increase the public reporting requirements of the Department of Justice on its implementation of the Foreign Intelligence Surveillance Act. The American Bar Association has also urged (pdf) better public reporting regarding the FISA. An interim report by the bill sponsors (pdf) on the FBI's use of the FISA details major problems with its implementation. (Feb. 25, 2003)
  • American Bar Association Urges FISA Oversight. The American Bar Association has adopted a resolution calling on Congress to conduct oversight of the Foreign Intelligence Surveillance Act to ensure that government investigations do not violate Constitutional protections. The ABA also urged Congress to require annual reports for FISA investigations, comparable to those required by the federal wiretap act. The ABA action follows a controversial decision by the Foreign Intelligence Court of Review. (Feb. 11, 2003)
  • Secret Appeals Court Permits Broader Electronic Surveillance. The secretive Foreign Intelligence Surveillance Court of Review today issued an opinion (PDF) granting the executive branch broader surveillance authority in foreign intelligence cases. The opinion, which overturned the lower court's determination, was the first issued by the Court of Review since FISA's inception in 1978. The case involves an unprecedented decision made public in August which revealed a pattern of FBI misrepresentations to a secret surveillance court. For more information, see the ACLU's press release on the decision. (Nov. 18, 2002)
  • Memo Reveals FBI Wiretap Violations. A recently disclosed FBI memo reveals that agents illegally videotaped suspects, intercepted e-mails without court permission, recorded the wrong phone conversations, and allowed electronic surveillance operations to run beyond their legal deadline, during sensitive terrorism investigations. The mistakes referenced in the internal memo are different than those delineated and criticized in May by the Foreign Intelligence Surveillance Court. The existence of the memo was first revealed in documents EPIC obtained in a FOIA lawsuit. (Oct. 10, 2002)
  • Rights Groups File Brief With Secret Appeals Court. EPIC has joined with a coalition of civil liberties groups to urge a secret appeals court to reject a government bid for broadly expanded powers to conduct "national security" surveillance on U.S. citizens. In an amicus brief (PDF) filed with the Foreign Intelligence Surveillance Court of Review, the groups said that expanding such powers would jeopardize fundamental constitutional interests. The case involves an unprecedented decision made public last month which revealed a pattern of FBI misrepresentations to a secret surveillance court (see below). (Sep. 20, 2002)
  • FISA Court Chastises DOJ, FBI. In a published opinion (also available in PDF), the secretive Foreign Intelligence Surveillance Act (FISA) Court sharply criticized the DOJ and FBI for providing the tribunal misleading information in 75 cases. The Court limited the request of the DOJ to share intelligence information for criminal prosecutions. The Court said that DOJ substituted relaxed foreign intelligence gathering wiretapping procedures to evade higher requirements for standard criminal investigations: "The 2002 procedures appear to be designed to amend the law and substitute the FISA for Title III electronic surveillances" The Court continues to say that this may be because "the government is unable to meet the substantive requirements of these law enforcement tools..." (Aug. 23, 2002)

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