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Privacy Rights in the Digital Age, 2nd Edition

Foreign Intelligence Surveillance Court

by Rachel Jorgensen

Identification: A court created with the enactment of the Foreign Intelligence Surveillance Act in 1978.

The power of the Foreign Intelligence Surveillance Court (FISC) emanates from chapter 36, “Foreign Intelligence Surveillance,” of chapter 50, War and National Defense, of the United States Code. The court is located in Washington, D.C. and is administered under the Federal Court system and is comprised of 11 federal district court judges who are appointed by the Chief Justice of the United States Supreme Court. The judges must represent at least seven of the federal court districts. The judges preside on the court on a rotating basis, with each rotation lasting one week. At least three of the judges must reside within 20 miles of Washington, D.C. The court holds jurisdiction over applications for electronic surveillance of foreign powers, or agents of foreign parties, in the United States.

The Court has purview over four categories of electronic surveillance. The first is wire or radio communication that targets “a particular, known United States person who is in the United States.” The second category is wire communications made to or from a person in the United States. The third category pertains to radio communications if both the sender and all intended recipients are in the United States. The fourth category includes electronic monitoring to obtain information that is not wire or radio communications.

Electronic communications have radically changed since 1978, which has had an impact on the Court’s ability to have jurisdiction over a wider array of modern communications, including email and internet-based voice and video communications. Additionally, in the aftermath of September 11, 2001, Congress passed the Patriot Act. Section 215 of the Patriot Act expanded the types of materials the government could collect to gather intelligence on terrorism. Under section 215 the government must show that “there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation . . . to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.”

Since 2001 the Court has interpreted section 215 as giving the government the right to conduct mass surveillance programs. Subsequently, the National Security Agency received authorization from the Court to conduct bulk collection of metadata from telephone calls in 2006. This metadata included time of the call, the call length, and the telephone numbers of the caller and the recipient. In 2011 the Court approved the collection of metadata on internet use. In neither instance did the Court approve the collection of content. However, the Court’s power to approve the mass collection of metadata on telephone and internet use came under sharp public scrutiny after Edward Snowden, a computer specialist contractor working for the National Security Agency, provided documentation of the government’s mass surveillance program to journalists Glen Greenwald, Laura Poitras, and Ewan MacAskill, who subsequently published articles in The Guardian and The Washington Post.

This reporting set off a backlash against the Court, with particular criticism of the Court’s lack of transparency and adversarial procedure. In turn, these criticisms have raised questions of the Court’s constitutionality, particularly under Article III and the Fourth Amendment. Article III stipulates that “judicial power shall extend …to controversies to which the United States shall be a party…”Many have argued that the movement to mass surveillance and bulk collection, by its very nature, lacks the requisite element of controversy, as the United States cannot have an adversarial relationship with the millions of people from whom metadata is being collected. The Fourth Amendment protects the people from unreasonable searches and seizures. The government has argued that foreign intelligence and the “incidental collection” of the metadata generated by non-target persons is not protected by the Fourth Amendment. Additionally, the Court has reasoned that the government’s surveillance falls under the “special needs” doctrine, which allows for warrantless searches under the theory that the substantial public interest inherent in preventing terrorist acts overcomes a person’s individual privacy rights.

The Court’s decisions are classified and, unlike standard judicial procedure, the United States Government is the only party allowed to argue and present evidence to the court. The hearing itself is also classified and not open to the public. However, passage of the USA Freedom Act (2015) did mandate some reform of the Court. Section 401 of the Act created a role for amici curiae– five individuals or organizations who will provide assistance with the Court’s consideration of novel or significant legal questions. Section 402 requires the Director of National Intelligence to “conduct a declassification review of each decision order, or opinion” issued by the Court. There is an appeals court, the Foreign Intelligence Court of Review, which is comprised of three Federal judges, also selected by the Chief Justice of the United States Supreme Court. These review hearings are also classified.

Further Reading

1 

Declan, Keara. Foreign Intelligence Surveillance Courts: Background, Issues, and Proposals. New York: Novinka, 2014.

2 

Donohue, Laura K. “Bulk Metadata Collection: Statutory and Constitutional Considerations.”Harvard Journal of Law and Public Policy 37 (Summer 2014), 757- 900.

3 

Privacy and Civil Liberties Oversight Board. Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT ACT and on the Operations of the Foreign Intelligence Surveillance Court. Washington, DC, 2015. https://www.pclob.gov/library/215-Report_on_the_Telephone_Records_Program.pdf

4 

U.S. Library of Congress, Congressional Research Service, Reform of the Foreign Intelligence Surveillance Courts: Procedural and Operational Changes, by Andrew Nolan and Richard M. Thompson II. R43362. 2014.

See also: Electronic surveillance; Foreign Intelligence Surveillance Act of 1978 (FISA) Greenwald, Glenn; National Security Agency (NSA); Poitras, Laura; Snowden, Edward Joseph

Citation Types

MLA 9th
Jorgensen, Rachel. "Foreign Intelligence Surveillance Court." 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_0102.
APA 7th
Jorgensen, R. (2019). Foreign Intelligence Surveillance Court. 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 Court." 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.