Foreign Intelligence Surveillance Act

Background

Following the disclosure of domestic intelligence abuses by President Richard M. Nixon in the political scandal known as Watergate, the U.S. Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities was established; it became known as the Church Committee because of its chairman, Senator Frank Church (D–ID). The Church Committee concluded, among other things, that the body of law regarding electronic surveillance was “somewhat uncertain.” For example, the Fourth Amendment to the U.S. Constitution that protects against warrantless search and seizure was addressed as it applies to electronic surveillance in a 1928 U.S. Supreme Court case, Olmstead v. United States. The Court ruled that Fourth Amendment protection only applied to tangible things and not intangibles such as a conversation.

However, in its 1967 decision in Katz v. United States, the Supreme Court reversed this decision. Although the Katz decision held that a search warrant is required for electronic surveillance even to capture conversations without physical intrusion, the ruling recognized the president's constitutional authority to authorize warrantless surveillance and “did not extend [the requirement] to cases involving national security.” Title III of the 1968 Omnibus Crime Control and Safe Streets Act regulates surveillance wiretaps in criminal investigations. The Church Committee expressed concern that Title III was not clear about a national security exception to warrant requirements for electronic surveillance.

In United States v. United States District Court (1972), known as the Keith case, the Supreme Court narrowed its earlier position on warrantless electronic surveillance, writing that, to satisfy the Fourth Amendment, “prior judicial approval is required for the type of domestic security surveillance involved in this case.” However, the Court expressed no opinion as to “the scope of the President's surveillance power with respect to activities of foreign powers, within or without this country.” Subsequent rulings further narrowed the scope of warrantless surveillance and drew a brighter line between surveillance warrants in domestic and foreign security intelligence. Nevertheless, there was little statue law supporting the federal courts. Therefore, subsequent to the Senate Watergate Report and the Church Committee Reports (the Church Committee reported on a variety of matters), the U.S. Congress passed, and President Jimmy Carter signed, FISA.

The Foreign Intelligence Surveillance Court

FISA established its own federal court, the Foreign Intelligence Surveillance Court (FISC), to review applications for surveillance warrants. The FISA application need only state facts supporting probable cause that the target of the intercept (or search) is “a foreign power, or an agent of a foreign power, and that the facilities to be monitored or searched are being used, or are about to be used, by a foreign power, or an agent of a foreign power, and to certify that a significant purpose of the surveillance is to obtain foreign intelligence information.” Applications for a FISA warrant are [Page 214]reviewed by the FISC, which can be represented by a single judge, and a decision is made whether or not to authorize electronic surveillance or a search.

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