Isabella Carter
The Foreign Intelligence Surveillance Act (FISA) was passed by Congress in 1978 to prevent electronic surveillance that violates First and Fourth Amendment liberties. However, critics argue that FISA does the opposite, creating a pathway for unconstitutional electronic surveillance and secret courts that deny due process to Americans. There have been several cases of FISA abuse, including the NSA's PRISM and Upstream programs, which conducted warrantless surveillance of Americans' international communications. In 2013, whistleblower Edward Snowden exposed these programs, leading to concerns about the constitutionality of FISA and the protection of Americans' privacy rights. With the increasing digitalisation of society, the implications of FISA on the Constitutional rights of Americans have become a pressing issue.
| Characteristics | Values |
|---|---|
| Year passed | 1978 |
| Purpose | To prevent electronic surveillance violating First and Fourth Amendment liberties |
| Effect | Creates a statutory pathway that nurtures and protects unconstitutional electronic surveillance |
| Surveillance type | Physical and electronic |
| Surveillance target | Foreign powers and agents of foreign powers |
| Surveillance methods | Pen registers, trap and trace devices, physical searches, business records |
| Surveillance approval | FISA Court (FISC) |
| Surveillance period | Surveillance beyond the initial authorized period requires a FISA warrant or a presidential certification to Congress |
| Surveillance violation penalty | Fines up to $10,000, up to five years in jail, or both |
| Surveillance violation penalty for government | Actual damages of not less than $1,000 or $100 per day |
| Abuse | FISA has been abused by federal officials to undermine elections |
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What You'll Learn
FISA and the Fourth Amendment
The Foreign Intelligence Surveillance Act (FISA) was passed by Congress in 2008 to prevent electronic surveillance from violating First and Fourth Amendment liberties. However, critics argue that FISA does the opposite and creates a pathway that encourages and protects unconstitutional electronic surveillance.
FISA authorises the National Security Agency (NSA) to collect communications of foreigners overseas for foreign intelligence purposes without requiring a warrant. Although FISA is not a bulk collection program and only targets non-US persons outside the United States, it inevitably collects Americans' communications. To address this, Congress required the NSA to "minimise" the sharing, retention, and use of this "incidentally" collected data. However, the interpretation of "minimise" has been criticised, and the FISA Court has found that the FBI's minimisation procedures violated the Fourth Amendment.
The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. It requires that warrants shall only be issued upon probable cause, supported by oath or affirmation, and with a particular description of the place to be searched and the persons or things to be seized. FISA permits electronic surveillance without showing probable cause, as the government need not demonstrate that the targeted individual is violating the law on the targeted premises. Instead, the government merely needs to list the facts and circumstances forming the belief that the individual is an agent of a foreign power and that the location is to be used by such an agent.
The FISA Court has held that the FBI's procedures for accessing Americans' communications "incidentally" collected under FISA violated the Fourth Amendment. This includes violations of protections for attorney-client communications and failure to purge certain improperly collected data. Civil liberties advocates have pointed to a growing body of case law holding that searches of government databases can, in certain circumstances, constitute a separate Fourth Amendment event, and have argued that government agencies should be required to obtain a warrant before searching FISA-obtained data.
In conclusion, while FISA was intended to prevent violations of Fourth Amendment liberties, it has been criticised for falling short of this goal and even encouraging unconstitutional electronic surveillance. The FISA Court has played a crucial role in interpreting and enforcing the Fourth Amendment, finding violations by the FBI and NSA, and requiring the development of special rules to protect Americans' privacy.
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FISA's creation of secret courts
The Foreign Intelligence Surveillance Act (FISA) was passed by Congress in 1978 to prevent electronic surveillance that violates First and Fourth Amendment liberties. However, critics argue that FISA has instead created a pathway that enables and protects unconstitutional electronic surveillance.
FISA established the Foreign Intelligence Surveillance Court (FISC), a specialised federal court in Washington, D.C., that reviews government applications for approval of electronic surveillance, physical search, and other investigative actions for foreign intelligence purposes. The FISC is composed of 11 experienced federal district judges who are designated by the Chief Justice of the United States.
The secrecy of the FISC has been a subject of debate. While the secrecy of individual FISA cases is deemed necessary, critics argue that this secrecy has been extended to basic legal and procedural aspects, leading to a lack of transparency and accountability. In 2005, The New York Times reported that the Bush administration had been conducting surveillance against U.S. citizens without specific FISC approval since 2002. This prompted Judge James Robertson to resign from the court in protest.
In addition to concerns about secrecy, there have been allegations of FISA abuse and questions about the constitutionality of the Act. Recent cases have highlighted potential conflicts between FISA and the Fourth Amendment's protection against unreasonable searches and seizures. For example, in United States v. Moalin, the Ninth Circuit Court of Appeals ruled that the federal government violated FISA and possibly the Fourth Amendment when it collected telephony metadata from millions of Americans.
While there have been few legal challenges directly addressing the constitutionality of FISA, the Act's provisions enabling electronic surveillance and the secrecy surrounding its implementation have sparked ongoing debates and calls for reform.
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FISA's impact on the electoral process
The Foreign Intelligence Surveillance Act (FISA) was passed by Congress in 1978 to prevent electronic surveillance that violates First and Fourth Amendment liberties. However, critics argue that FISA does the opposite, creating a pathway that enables and protects unconstitutional electronic surveillance.
FISA has been a source of fierce bipartisan debate, with critics arguing that it undermines the electoral process by enabling federal agencies to abuse their power and spy on American citizens. For example, former President Trump claimed that FISA was "illegally used" against him during his 2016 presidential campaign. In addition, a former adviser to his campaign was targeted for surveillance over potential ties to Russia.
These allegations have prompted calls for the repeal of FISA to preserve the integrity of the electoral process and promote confidence in the US government. However, supporters of FISA, including Speaker Mike Johnson, argue that it is critically important for intelligence and law enforcement, playing a crucial role in disrupting terror attacks, cyber intrusions, and foreign espionage.
Despite the controversy, there have been very few legal cases challenging the constitutionality of FISA. In two lower court decisions, FISA was found to be constitutional, with national security considerations outweighing potential violations of citizens' rights. Nonetheless, the impact of FISA on the electoral process remains a highly contested issue, with ongoing debates about its legality and ethical implications.
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FISA's effect on the privacy rights of Americans
The Foreign Intelligence Surveillance Act (FISA) was passed in 1978 to prevent electronic surveillance from violating First and Fourth Amendment liberties. However, critics argue that FISA has instead nurtured and protected unconstitutional electronic surveillance.
FISA allows the National Security Agency (NSA) to collect communications from foreigners overseas for foreign intelligence purposes without a warrant. While FISA does not require a warrant for this collection, courts must approve the procedures that govern the surveillance annually. Although FISA is ostensibly targeted at foreigners, it sweeps up large amounts of Americans' communications. As a result, Congress has required the NSA to "minimize" the sharing, retention, and use of this "incidentally" collected data from US persons.
There have been several instances of non-compliance with rules designed to protect Americans' privacy rights. For example, in 2015, the court noted that the FBI had violated protections for attorney-client communications and that the NSA had failed to purge certain improperly collected data. In 2016, the FISA Court learned that the NSA had been violating rules established in 2012, resulting in eight years of unconstitutional upstream collection activities.
The FISA Court's finding that Section 702 surveillance is constitutionally reasonable hinges on balancing the government's interest in collecting foreign intelligence with Americans' privacy interests in their communications. However, critics argue that allowing the FBI to conduct "batch queries," where the majority of queries do not yield relevant information, tips the balance in favor of the government.
Some legal experts have questioned the constitutionality of FISA, arguing that it retroactively immunizes telecommunications firms from civil liability for potentially violating their customers' privacy rights. In addition, FISA creates a system of secret courts that deny due process to Americans surveilled under the Act.
In conclusion, while FISA was intended to protect Americans' privacy rights, its implementation and subsequent amendments have raised concerns about its effect on privacy. There have been instances of non-compliance with privacy protections, and the Act's broad powers have been subject to abuse. As a result, there have been calls for reforms to address these privacy concerns.
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FISA's constitutionality
The Foreign Intelligence Surveillance Act (FISA) was introduced in 1977 and signed into law in 1978. It was enacted in response to widespread privacy violations by the federal government under President Richard Nixon. FISA establishes procedures for the surveillance and collection of foreign intelligence on domestic soil.
FISA has been deemed unconstitutional by some, for several reasons. Firstly, the secret, ex parte FISA courts violate the "case or controversy" requirement of Article III. Secondly, FISA violates Fourth Amendment liberties from unreasonable searches and seizures. Thirdly, FISA and its secret courts violate the due process guarantees of the Fifth and Fourteenth Amendments.
FISA has also been criticised for having no role in overseeing how the government uses its surveillance power. Even if the FISA court finds the government's procedures deficient, the government can disregard this and continue illegal surveillance while appealing the court's determination. There are no real limits on how the government uses, retains, or disseminates the information it collects.
There have been very few cases involving the constitutionality of FISA. Two lower court decisions found FISA constitutional, while a third case opined differently. In United States v. Duggan, the defendants were members of the Irish Republican Army, and the court held that there were compelling considerations of national security in the distinction between the treatment of US citizens and non-resident aliens. In the United States v. Nicholson, the defendant moved to suppress all evidence gathered under a FISA order, but the court affirmed the denial of the motion, rejecting claims that FISA violated the Due Process Clause of the Fifth Amendment, Equal Protection, Separation of Powers, or the Right to Counsel provided by the Sixth Amendment. In In re Sealed Case, the special court stated that FISA could not encroach on the President's inherent authority to conduct warrantless searches to obtain foreign intelligence information.
In 2020, the Ninth Circuit Court of Appeals ruled that the federal government violated FISA, and possibly the Fourth Amendment of the US Constitution, when it collected the telephony metadata of millions of Americans.
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Frequently asked questions
FISA is the Foreign Intelligence Surveillance Act, which was passed in 1978 to prevent electronic surveillance that violates First and Fourth Amendment liberties.
FISA creates a system of secret, ex parte courts that deny due process to Americans under surveillance. It also establishes procedures for the government to "certify" the legality of acquisition programs and issue directives to providers to furnish data or assistance. This has been interpreted as allowing the government to secretly eavesdrop on Americans in their own country.
In 2016, the FISA Court learned that the NSA had been violating rules established in 2012 to remedy a Fourth Amendment violation. The NSA's non-compliance meant that its upstream collection activities had been operating unconstitutionally for eight years. In 2020, the Ninth Circuit Court of Appeals ruled that the federal government violated FISA, and possibly the Fourth Amendment, when it collected the telephony metadata of millions of Americans.
There have been calls for Congress to repeal FISA to maintain respect for the Constitution and promote confidence in the government. The ACLU has urged Congress not to rubber-stamp FISA plans and to stand for a Constitutional FISA.
