The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and Recent Judicial Decisions

The Foreign Intelligence Surveillance Act, 50 U.S.C. 1801 et seq., FISA as passed in 1978, provided a statutory framework for the use of electronic surveillance in the context of foreign intelligence gathering. 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. Further amendments were included in the Intelligence Authorization Act for Fiscal Year 2002, P.L. 107-108, and the Homeland Security Act of 2002, P.L. 107-296. In addressing international terrorism or espionage, the same factual situation may be the focus of both criminal investigations and foreign intelligence collection efforts. The changes in FISA under these public laws facilitate information sharing between law enforcement and intelligence elements. In its Final Report, the 911 Commission noted that the removal of the pre-911 wall between intelligence and law enforcement has opened up new opportunities for cooperative action within the FBI. 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. In the 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. The FISC granted the Departments motion, but modified part of the proposed minimization procedures. This report will examine the detailed statutory structure provided by FISA and related provisions of E.O. 12333. In addition, it will discuss the decisions of the U.S. FISC and the U.S. Foreign Intelligence Surveillance Court of Review.