The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and U.S. Foreign Intelligence Surveillance Court and U.S. Foreign Intelligence Surveillance Court of Review Decisions

The Foreign Intelligence Surveillance Act FISA, 50 U.S.C. 1801 et seq., as passed in 1978, provided a statutory framework for the use of electronic surveillance in the context of foreign intelligence gathering. In so doing, Congress sought to strike a delicate balance between national security interests and personal privacy rights. Subsequent legislation expanded federal laws dealing with foreign intelligence gathering to address physical searches, pen registers and trap and trace devices, and access to certain business records. The USA PATRIOT Act of 2001, P.L. 107-56, made significant changes to some of these provisions. On May 17, 2002, the U.S. Foreign Intelligence Surveillance Court FISC issued a memorandum opinion and order written by the then Presiding Judge of the court, and concurred in by all of the other judges then on the court. In its decision, the FISC considered a motion by the U.S. Department of Justice to vacate the minimization and wall procedures in all cases now or ever before the Court, including this Courts adoption of the Attorney Generals July 1995 intelligence sharing procedures, which are not consistent with new intelligence sharing procedures submitted for approval with this motion. The U.S. Foreign Intelligence Surveillance Court of Review reversed and remanded the FISC orders on November 18, 2002. This report will examine the detailed statutory structure provided by FISA and related provisions of E.O. 12333, and will discuss the decisions of the U.S. Foreign Intelligence Surveillance Court and the U.S. Foreign Intelligence Surveillance Court of Review.