What Is a FISA Court?
With NSA surveillance all over the news, you may be wondering: What is FISA?
The Foreign Intelligence Surveillance Act (FISA) regulates the government's conduct of intelligence surveillance inside the United States. The law generally requires the government to seek warrants before surveilling "agents of a foreign power" engaged in espionage or terrorism. In practice, it grants the government wide surveillance authority.
Below is a general overview about what FISA is and what the FISA court does.
What Is the Purpose of FISA?
FISA is aimed at regulating the collection of "foreign intelligence" information for U.S. counterintelligence efforts. "Counterintelligence efforts" refers to the U.S. government's goal to detect and prevent espionage, sabotage, terrorism, assassinations and other hostile intelligence activities by foreign governments, organizations or people.
Can FISA Be Used for Regular Criminal Investigations?
Yes, but when the goal of the surveillance goes from counterintelligence to law enforcement, the information collection is supposed to receive much stronger legal scrutiny due to privacy policy concerns.
Is There Really a Secret FISA Court?
Yes. FISA established a special court, now comprised of 11 rotating federal district court judges appointed by the Chief Justice for staggered terms. Though the judges must be from at least seven different circuits, one judge has to be from the D.C. Circuit.
The Foreign Intelligence Surveillance Court (FISC) is tasked with making sure the government doesn't abuse its surveillance powers and hears the warrant applications.
The individual judges review the Attorney General's applications for authorization. The government goes to the FISA court with a proposition. It tells the judge, for example, that the NSA wants to track the phone calls and emails of someone they say is vital to an international terrorism investigation, and then the judge approves or rejects the application, reports NPR.
Much like the Justice League, the FISC is shrouded in secrecy. The records and files of the cases are sealed and can't be revealed even to people whose prosecutions are based on evidence obtained under FISA warrants.
What Are Some Criticisms of the FISC?
One of the main criticisms of the court is its secretive nature. To get an idea of just how under wraps it is, the leaked document about the NSA asking to collect Verizon phone records was a FISA order, reports NPR. But the American public had no idea that order existed until ex-NSA contractor Edward Snowden leaked it to the public.
The other problem is that the proceedings are non-adversarial. The judges make their decisions based solely on the DOJ's presentations. With no one arguing against the government's proposition, civil liberties groups are concerned that the government always gets it way.
The numbers seem to support that conclusion. The court approved all of the government's 1,788 applications to conduct electronic surveillance last year, according to the DOJ's 2012 FISA Report to members of Congress. Judges didn't reject a single one.
Others, however, argue that the secrecy is necessary for national security and that the adversarial arrangement simply wouldn't work when dealing with such unique and time-sensitive matters, The New York Times reports.
Related Resources:
- President And Congress Extend FISA Wiretapping Act To 2017 [Updated] (NPR)
- NSA, FBI Surveillance: Legally Justified? (FindLaw's Blotter)
- NSA Warrantless Wiretapping Lawsuit's Dismissal Affirmed (FindLaw's Decided)
- NSA Scandal: More Thoughts and What's Next? (FindLaw's Technologist)