«Congressional Research Service 7-5700 R40138 CRS Report for Congress Prepared for Members and Committees of Congress Amendments to FISA ...»
Amendments to the Foreign Intelligence
Surveillance Act (FISA) Extended Until
June 1, 2015
Edward C. Liu
June 16, 2011
Congressional Research Service
CRS Report for Congress
Prepared for Members and Committees of Congress
Amendments to FISA Extended Until June 1, 2015
On May 26, 2011, in the face of imminent expiration, three amendments to the Foreign
Intelligence Surveillance Act (FISA) were extended until June 1, 2015. The three amendments were first enacted to expand the scope of federal intelligence-gathering authorities following the 9/11 terrorist attacks.
Two amendments were enacted as part of the USA PATRIOT Act. Section 206 of the USA PATRIOT Act amended FISA to permit multipoint, or “roving,” wiretaps by adding flexibility to the degree of specificity with which the location or facility subject to electronic surveillance under FISA must be identified. Section 215 enlarged the scope of materials that could be sought under FISA to include “any tangible thing.” It also lowered the standard required before a court order may be issued to compel their production.
The third amendment was enacted in 2004, as part of the Intelligence Reform and Terrorism Prevention Act (IRTPA). Section 6001(a) of the IRTPA changed the rules regarding the types of individuals who may be targets of FISA-authorized searches. Also known as the “lone wolf” provision, it permits surveillance of non-U.S. persons engaged in international terrorism without requiring evidence linking those persons to an identifiable foreign power or terrorist organization.
Although these provisions are set to sunset, grandfather clauses permit them to remain effective with respect to investigations that began, or potential offenses that took place, before the sunset date.
Congressional Research Service Amendments to FISA Extended Until June 1, 2015 Contents Overview
Distinction Between FISA Court Orders and Warrants in Criminal Investigations.................. 2 Distinction Between FISA Court Orders and National Security Letters
Expiring FISA Amendments
“Lone Wolf” Terrorists
Section 206 and “Other Persons”
Particularity Requirement of the Fourth Amendment
Access to Business Records Under FISA
Expansion of the Scope of Documents Subject to FISA
Changes to the Standard of Review
Nondisclosure and Judicial Review
DOJ OIG Report
Effect of Sunset Provisions
Contacts Author Contact Information
Overview The Foreign Intelligence Surveillance Act (FISA) provides a statutory framework by which government agencies may, when gathering foreign intelligence investigation,1 obtain authorization to conduct electronic surveillance2 or physical searches,3 utilize pen registers and trap and trace devices,4 or access specified business records and other tangible things.5 Authorization for such activities is typically obtained via a court order from the Foreign Intelligence Surveillance Court (FISC), a specialized court created to act as a neutral judicial decision maker in the context of FISA.
Shortly after the 9/11 terrorist attacks, Congress enacted the USA PATRIOT Act, in part, to “provid[e] enhanced investigative tools” to “assist in the prevention of future terrorist activities and the preliminary acts and crimes which further such activities.”6 That act and subsequent measures7 amended FISA to enable the government to obtain information in a greater number of circumstances.
The expanded authorities prompted concerns regarding the appropriate balance between national security interests and civil liberties. Perhaps in response to such concerns, Congress established sunset provisions which apply to three of the most controversial amendments to FISA. These amendments include
• Section 6001(a) of the Intelligence Reform and Terrorism Prevention Act (IRTPA), also known as the “lone wolf” provision, which simplifies the evidentiary showing needed to obtain a FISA court order to target non-U.S.
persons who engage in international terrorism or activities in preparation therefor, specifically by authorizing such orders in the absence of a proven link between a targeted individual and a foreign power;8
• Section 206 of the USA PATRIOT Act, which permits multipoint, or “roving,” wiretaps (i.e., wiretaps which may follow a target even when he or she changes phones) by adding flexibility to the manner in which the subject of a FISA court order is specified;9 and Although FISA is often discussed in relation to the prevention of terrorism, it applies to the gathering of foreign intelligence information for other purposes. For example, it extends to the collection of information necessary for the conduct of foreign affairs. See 50 U.S.C. § 1801(e) (2008) (definition of “foreign intelligence information”).
50 U.S.C. §§ 1801-1808 (2008).
50 U.S.C. §§ 1822-1826 (2008).
50 U.S.C. §§ 1841-1846 (2008). Pen registers capture the numbers dialed on a telephone line; trap and trace devices identify the originating number of a call on a particular phone line. See 18 U.S.C. § 3127(3)-(4) (2008).
50 U.S.C. §§ 1861-1862 (2008).
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, P.L. 107-56 (2001); H.Rept. 107-236, pt. 1, at 41 (2001).
See, e.g., Intelligence Reform and Terrorism Prevention Act, P.L. 108-458 (2004).
Id. at § 6001(a), codified at 50 U.S.C. § 1801(b)(1)(C) (2008).
P.L. 107-56, § 206, codified at 50 U.S.C. § 1805(c)(2)(B) (2008).
• Section 215 of the USA PATRIOT Act, which broadens the types of records and other tangible things that can be made accessible to the government under FISA.10 These amendments had been scheduled to expire on May 27, 2011.11 However, on the day before they were set to expire, the three provisions were extended for approximately four years, until June 1, 2015.12 Background FISA, enacted in 1978, provides a statutory framework which governs governmental authority to conduct, as part of an investigation to gather foreign intelligence information, electronic surveillance and other activities to which the Fourth Amendment warrant requirement would apply if they were conducted as part of a domestic criminal investigation.13 Its statutory requirements arguably provide a minimum standard that must be met before foreign intelligence searches or surveillance may be conducted by the government.14 Distinction Between FISA Court Orders and Warrants in Criminal Investigations The Fourth Amendment to the U.S. Constitution protects against “unreasonable searches and seizures.”15 In domestic criminal law investigations, it generally requires law enforcement officers to obtain a court-issued warrant before conducting a search.16 When the warrant Id. at § 215, codified at 50 U.S.C. §§ 1861-2 (2008).
The provisions were originally set to expire on December 31, 2005, but were extended multiple times until May 27,
2011. See Congress also modified the three amendments as part of the 2005 reauthorization act and various other measures. See, e.g., P.L. 109-160 (extension until February 3, 2006); USA PATRIOT Improvement and Reauthorization Act of 2005, P.L. 109-177 (extension until December 31, 2009); Department of Defense Appropriations Act, 2010, P.L. 111-118, § 1004 (2009) (extension until February 28, 2010); P.L. 111-141 (extension until February 28, 2011); P.L. 112-3 (extension until May 27, 2011).
P.L. 112-14 (extension until June 1, 2015).
The scope of activities governed by FISA relates to the scope of the Fourth Amendment warrant requirement insofar as the statute refers to the warrant requirement in its definitions. See 50 U.S.C. § 1801 (restricting the definition of electronic surveillance to instances “in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes”) (emphasis added).
But see CRS Report R40888, Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, by Elizabeth B. Bazan and Jennifer K. Elsea, at 29-33 (“While the congressional intent to cabin the President’s exercise of any inherent constitutional authority to engage in foreign intelligence electronic surveillance may be clear from the exclusivity provision in FISA and from the legislative history of the measure, some support may be drawn from the [Foreign Intelligence Surveillance] Court of Review’s decision in In re Sealed Case for the position that the President continues to have the power to authorize warrantless electronic surveillance to gather foreign intelligence outside the FISA framework”).
U.S. Const. amend. IV.
See Katz v. United States, 389 U.S. 347, 357 (1967) (“[S]earches conducted outside the judicial process without prior approval by judge or magistrate are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions.”).
requirement does not apply, government activity is generally subject to a “reasonableness” test under the Fourth Amendment.17 The extent to which the warrant requirement applies to the government’s collection of foreign intelligence is unclear. In a 1972 case, the Supreme Court invalidated warrantless electronic surveillance of domestic organizations on Fourth Amendment grounds, despite the government’s assertion of a national security rationale.18 However, it indicated that its conclusion might be different in a future case involving the electronic surveillance of foreign powers or their agents, within or outside the United States.19 In a 2002 case, the Foreign Intelligence Surveillance Court of Review upheld FISA, as amended by the USA PATRIOT Act, against a Fourth Amendment challenge.20 The court assumed, without deciding the question, that FISA court orders do not constitute warrants for purposes of the Fourth Amendment analysis. Relying on a general reasonableness analysis, it nonetheless upheld such orders, emphasizing both the privacy protections in the statutory framework and the governmental interest in preventing national security threats.21 Thus, although they apply to similar government activities, different standards govern FISA court orders and warrants issued by judges in criminal investigations. Search warrants in the general criminal law context must be justified by indicia of criminal conduct. In contrast, a substantial purpose of court orders obtained pursuant to FISA must be the collection of foreign intelligence information.22 Although both FISA orders and criminal warrants require impartial judicial review to determine whether probable cause exists, the propositions that must be supported by probable cause are substantially different in the two frameworks. In the case of a FISA court order, the FISC, in authorizing electronic surveillance or a physical search, must find probable cause to believe both (1) that the person targeted by the order is a foreign power or its agent, and (2) that the subject of the search (i.e., the telecommunications or place to be searched) is owned, possessed, or will be used by the target.23 Also called the “general balancing,” “general reasonableness,” or “totality-of-the circumstances” test, it requires a court to determine the constitutionality of a search or seizure “by assessing, on the one hand, the degree to which [a search or seizure] intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Samson v. California, 547 U.S. 843, 848 (2006).
U.S. v. U.S. District Court, 407 U.S. 297, 321-24 (1972) (also referred to as the Keith case, so named for the District Court judge who initially ordered disclosure of unlawful warrantless electronic surveillance to the defendants).
Id. at 321-22. See also In re Directives, 551 F.3d 1004 (U.S. Foreign Intell. Survellance Ct. Rev. 2008) (holding that the foreign intelligence surveillance of targets reasonably believed to be outside of the U.S. qualifies for the “special needs” exception to the warrant requirement); CRS Report R40888, Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, by Elizabeth B. Bazan and Jennifer K. Elsea, at 9discussing courts’ differing application of the Fourth Amendment to searches for the purpose of foreign intelligence collection).
In re Sealed Case, 310 F.3d 717 (Foreign Intell. Survellance Ct. Rev. 2002).
Id. at 738-46.
See, e.g., 50 U.S.C. § 1804(a)(7)(B) (2008). Prior to 2001, the statute had required that “the purpose” of a FISA warrant be foreign intelligence collection.
50 U.S.C. § 1805(a)(3) (2008) (electronic surveillance); Id. at § 1824(a)(3) (physical searches). In contrast, federal criminal search warrants require probable cause to believe that instrumentalities, evidence, or fruits of a crime will be found in the place to be searched. See Fed. R. Crim. P. 41(c). Criminal warrants authorizing electronic surveillance additionally require probable cause to believe that the target is engaged in criminal activities, that normal investigative techniques are insufficient, and that the facilities that are the subject of surveillance will be used by the target. 18 U.S.C. § 2518(3) (2008).