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Privacy Rights in the Digital Age, 2nd Edition

Foreign Intelligence Surveillance Act of 1978

by Rachel Jorgensen

Identification: Foreign Intelligence Surveillance Act of 1978 (FISA), 92 Stat. 1783, 50 U.S.C. ch. 36. Enables the United States government to conduct electronic surveillance on foreign intelligence within the United States.

The Foreign Intelligence Surveillance Act of 1978 (FISA)was enacted after many decades of uncertainty and controversy regarding the constitutionality of electronic surveillance conducted by the Executive Branch. FISA has been significantly amended since its enactment by the Intelligence Authorization Acts of 1995 and 1998, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act) and the USA PATRIOT Additional Reauthorization Amendments Act (2006), as well as the Foreign Intelligence Surveillance Act Amendments Act of 2008, and by the FISA Sunsets Extension Act of 2011. In 2015 the USA Freedom Act was passed, amending procedures of surveillance outside of the United States.

The Foreign Surveillance Intelligence Act and the subsequent amendments codified the authorization procedures for electronic surveillance, physical searches, searches of records, and the use of pen registers and trap and trace devices. It established the Foreign Surveillance Intelligence Court, and the Foreign Surveillance Intelligence Court of Review, both of which have sole jurisdiction over activities conducted within FISA guidelines. Surveillance under FISA targets two general groups —foreign powers and agents of foreign powers. An agent of a foreign power can include United States citizens who knowingly participate in secret intelligence gathering for a foreign power that violates United States criminal statutes, as well as any United States citizen who knowingly participates in acts of sabotage or acts of terrorism for a foreign power. A foreign power is defined as any government outside of the United States. This includes a foreign government’s diplomat or representative or an employee of a foreign government, as well as any faction or entity that is acknowledged, directed, or controlled by a foreign government, or any group engaged in international terrorism or activities in preparation for international terrorism. A United States person, for purposes of FISA, is any citizen of the United States, an alien lawfully admitted for permanent residence, or a United States corporation.

Until the terrorist attacks of September 11, 2001, FISA was not the subject of much popular controversy. The primary intellectual debate concerning the powers given to the Executive Branch under FISA were centered on the distinction between surveillance done in furtherance of a criminal investigation and that done for national security. This distinction became to be known as “the wall.” The wall was codified in the separation of criminal and national security investigations into discrete groups in agencies such as the Federal Bureau of Investigations. After September 11, investigations were conducted into the investigation practices of the FBI in order to ascertain weaknesses in the collection and processing of intelligence on national security threats. This investigation highlighted the lack of communication, which was caused by the “wall,” which lead to failures to detect and address terrorist threats. The subsequent amendments made to FISA after the September 11 attacks attempted to address these failures.

Such amendments arose out of the USA PATRIOT Act, which expanded the ability of the government to conduct surveillance under FISA. Specifically, it relaxed the standard of showing that the government had to meet from “primary purpose” to “significant purpose.” With regard to business records, section 215 of the USA PATRIOT Act expanded the ability of the government to amass information by allowing the collection of all “tangible things,” as well as overriding the existing standard that required “specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.” The new standard under section 215 simply requires that these “tangible things” are being “sought for an authorized investigation…to protect against international terrorism or clandestine intelligence activities.”

The government’s use of the powers given to it under FISA, as amended by the USA PATRIOT Act, has spawned multiple controversies. One example of this is the PRISM program. PRISM is administered by the National Security Agency and governed by section 702 of FISA. Its existence was made public by Edward Snowden and journalists Ewan Macaskill, Glenn Greenwald, Laura Poitras, and Barton Gellman in 2013. Through PRISM the National Security Agency was able to tap directly into the systems of large internet companies and providers, including Google, Facebook, Skype, Apple, Youtube, and Yahoo. Through PRISM the NSA was able to collect data directly from the servers of these companies, including audio and video chats, photographs, emails, documents, and data logs that allowed analysts to track targets.

Multiple lawsuits have been brought against the NSA that challenge its activities and procedures. The NSA argues that all programs and actions are allowed under FISA. The United States Supreme Court has heard one case on the constitutionality of FISA, but the majority of adjudication of FISA-related questions has occurred in multiple Federal Circuit Courts and Federal Courts of Appeal. The overriding issue of these cases is the constitutionality of FISA with regard to the Government’s searching and seizure of various types of information owned and metadata generated by United States citizens. The Constitutional questions raised in these cases emanate from the Fourth Amendment’s requirement of a warrant supported by probable cause and particularity, as well as a defendant’s Sixth Amendment right to a public trial, confrontation of the witnesses against her, and assistance of counsel.

With regard to Fourth Amendment questions, Federal Circuit Courts have ruled that FISA strikes an appropriate balance between the Government’s need to insure national security and an individual’s constitutional rights and that a person’s Fourth Amendment rights are not violated by the information gathering procedures defined by FISA. In addition, the Circuit Courts have ruled that the probable cause requirement of the Fourth Amendment does not apply to international surveillance, as actions taken for national security are not analogous to criminal prosecutions. Lastly, the Fourth Amendment’s requirement for particularity, the courts have ruled that FISA’s requirement for a general description of the information being sought is sufficiently particular.

Another argument that has been brought to challenge the Constitutionality of FISA is the issue of standing. A person must have “standing” to be able to bring a case against the Government in Federal Court. Standing is defined by Article III, section 2 of the Constitution. It states: “The judicial power shall extend to all cases, in law and equity, arising under the Constitution, the laws of the United States…to controversies to which the United States shall be a party…”Between 2009 and 2013 the question of standing, as it relates to Government actions performed under authority of FISA, was adjudicated in Federal court. In 2009 the district court for the Southern District of New York ruled in Amnesty International United States. v John McConnell, 646 F. Supp. 2d 633, that the plaintiffs did not have standing because they could not show that they had been surveilled under FISA; i.e., there case lacked a “controversy.” Amnesty International appealed this decision to the United States Court of Appeals for the Second District and it was heard under Amnesty International USA v Clapper, 638 F.3d 118 (2011). The Second District reversed the Southern District’s decision and remanded the case. The Second District reasoned that the plaintiffs have shown injuries in fact; i.e., controversies, under the “established rules of standing, the plaintiffs here have alleged that they reasonably anticipate direct injury…because they engage in legitimate professional activities that make it reasonably likely that their privacy will be invaded and their conversations overheard.” In turn, the defendants petitioned the United States Supreme Court for writ of certiorari. This writ was granted in 2012 and the Court heard the case as Amnesty International United States v Clapper, 133 S. Ct. 1138(2013).

The Court reversed the ruling of the Second District in a 5-4 decision. Justice Alito authored the majority opinion, stating that the respondents do not have standing under Article III of the Constitution for the following reasons: 1) that potential injury is insufficient to be an injury in fact; 2) that an “objectively reasonable likelihood” that the respondents’ communications with foreign contacts will be monitored by the Government acting within its powers under §1881a is insufficient; 3) that ongoing injuries due to the increased cost and burden of insuring privacy of the respondents’ communications from potential surveillance under §1881a is insufficient; 4) the respondents’ arguments that their definition of injury and standing are supported by adjudication in prior Supreme Court decisions is incorrect. With this ruling, the Supreme Court restricted the argument for standing to any party who is a stated target of surveillance or a party who can demonstrate an in fact injury due to government actions under FISA.

In June, 2015 the USA Freedom Act was approved by Congress. This Act modified many sections of the USA PATRIOT Act. It limits some of the bulk collection programs performed by the National Security Agency, including the collection of telecommunications metadata of citizens by United States intelligence agencies. It also declassifies FISA Court opinions that contain significant legal analysis, or, if declassification is not possible it requires a summary of the Court’s decision. The Freedom Act implemented the requirement of an amicus curiae panel to represent the public’s interest in cases of new or significant legal questions. Additionally, it extends section 215 of the Patriot Act to 2019. In 2017, FISA was reauthorized until 2023 through the FISA Reauthorization Act.

Further Reading

1 

Atkin, Michelle Louise. Balancing Liberty and Security: An Ethical Study of U.S. Foreign Intelligence Surveillance, 2001-2009. Security and Professional Intelligence Education Series. Lanham, MD: Rowman & Littlefield Publishers, 2013.

2 

Doyle, Charles. Terrorism: Section by Section Analysis of the USA PATRIOT Act. Congressional Research Service Report for Congress. Washington, D.C.: Library of Congress, 2001.

3 

Harper, Nick. “FISA’s Fuzzy Line between Domestic and International Terrorism” The University of Chicago Law Review 81, no. 3 (Summer 2014): 1123-1164.

4 

Korjus, Markus. The Foreign Intelligence Surveillance Act. Intelligence and Counterintelligence Studies Series. New York: Nova Science Publishers, 2013.

5 

Posner, Steve C. Privacy Law and the USA PATRIOT Act. LexisNexis, 2015.

6 

Richards, Neil M. “The Dangers of Surveillance” Harvard Law Review 126, no. 7 (May 2013): 1934-1965.

See also: Electronic surveillance; Foreign Intelligence Surveillance Court (FISC); Fourth Amendment to the U.S. Constitution; Greenwald, Glenn; Metadata; National Security Agency (NSA); Poitras, Laura; PRISM; Search warrants; September 11; Snowden, Edward Joseph; Supreme Court of the United States; Terrorism and privacy; USA FREEDOM Act; USA PATRIOT Act

Citation Types

MLA 9th
Jorgensen, Rachel. "Foreign Intelligence Surveillance Act Of 1978." Privacy Rights in the Digital Age, 2nd Edition, edited by Jane E. Kirtley & Michael Shally-Jensen, Salem Press, 2019. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA2e_0101.
APA 7th
Jorgensen, R. (2019). Foreign Intelligence Surveillance Act of 1978. In J. E. Kirtley & M. Shally-Jensen (Eds.), Privacy Rights in the Digital Age, 2nd Edition. Salem Press. online.salempress.com.
CMOS 17th
Jorgensen, Rachel. "Foreign Intelligence Surveillance Act Of 1978." Edited by Jane E. Kirtley & Michael Shally-Jensen. Privacy Rights in the Digital Age, 2nd Edition. Hackensack: Salem Press, 2019. Accessed May 30, 2026. online.salempress.com.