Although FISA was initially limited to government use of electronic surveillance, subsequent amendments have broadened the law to regulate other intelligence-gathering methods, including physical searches, pen register and trap and trace (PR/TT) devices, and compelling the production of certain types of business records.
The bill was cosponsored by nine Senators: Birch Bayh, James O. Eastland, Jake Garn, Walter Huddleston, Daniel Inouye, Charles Mathias, John L. McClellan, Gaylord Nelson, and Strom Thurmond.
These investigations were led separately by Sam Ervin and Frank Church in 1978 as a response to President Richard Nixon's usage of federal resources, including law enforcement agencies, to spy on political and activist groups.
The act was created to provide judicial and congressional oversight of the government's covert surveillance activities of foreign entities and individuals in the United States, while maintaining the secrecy needed to protect national security.FISA came into public prominence in December 2005 following an article in The New York Times that described a program of warrantless domestic wiretapping ordered by the Bush administration and carried out by the National Security Agency since 2002;[7] a subsequent Bloomberg article suggested this may have already begun by June 2000.
The President may authorize, through the Attorney General, electronic surveillance without a court order for the period of one year, provided that it is only to acquire foreign intelligence information,[14] that it is solely directed at communications or property controlled exclusively by foreign powers,[15] that there is no substantial likelihood that it will acquire the contents of any communication to which a United States person is a party, and that it be conducted only in accordance with defined minimization procedures.
[18] The sections of FISA authorizing electronic surveillance and physical searches without a court order specifically exclude their application to groups engaged in international terrorism.
"Minimization procedures" limit the collection of information concerning United States persons by protecting their identities and requiring a court order to retain the communications for longer than 72 hours.
The USA Freedom Act (Section 402), however, requires the government to declassify and publicly release "to the greatest extent practicable" each order, decision and opinion of the court if it contains a "significant construction or interpretation of law.
In the 2020 case, United States v. Moalin, the Ninth Circuit Court of Appeals ruled that the federal government violated FISA, and possibly the Fourth Amendment of the U.S. Constitution, when it collected the telephony metadata of millions of Americans.
In both cases, the statute creates an affirmative defense for law enforcement personnel acting within their official duties and pursuant to a valid court order.
In this case, the court found that the domestic organization was not a "foreign power or their agent", and "absent exigent circumstances, all warrantless electronic surveillance is unreasonable and therefore unconstitutional."
[42] John R. Schmidt, associate attorney general (1994–1997) in the Justice Department under President Bill Clinton, expressed a need for programmatic approval of technology-enabled surveillance programs.
In a September 10, 2007 address at a symposium on modernizing FISA held at Georgetown University Law Center's National Security Center, Kenneth L. Wainstein, Assistant Attorney General for National Security, argued against the current six-month sunset provision in the Protect America Act of 2007, saying that the broadened surveillance powers the act provides for should be made permanent.
[58] Speaking at National Security Agency headquarters in Fort Meade, Maryland on September 19, 2007, President George W. Bush urged Congress to make the provisions of the Protect America Act permanent.
Some in the legal community have questioned the constitutionality of any legislation that would retroactively immunize telecommunications firms alleged to have cooperated with the government from civil liability for having potentially violated their customers' privacy rights.
[61] In an article appearing in the January/February 2008 issue of the Institute of Electrical and Electronics Engineers journal of Security and Privacy, noted technology experts from academia and the computing industry found significant flaws in the technical implementation of the Protect America Act which they said created serious security risks, including the danger that such a surveillance system could be exploited by unauthorized users, criminally misused by trusted insiders, or abused by the government.
House Democrats said that as long as the administration withholds requested documents explaining the basis for the program that they cannot consider immunity for firms alleged to have facilitated it.
[63] On October 10, 2007, comments on the White House South Lawn, President Bush said he would not sign any bill that did not provide retroactive immunity for telecommunications corporations.
[64] On October 18, 2007, the House Democratic leadership put off a vote on the proposed legislation by the full chamber to avoid consideration of a Republican measure that made specific references to Osama bin Laden.
At the same time, the Senate Intelligence Committee reportedly reached a compromise with the White House on a different proposal that would give telephone carriers legal immunity for any role they played in the National Security Agency's domestic eavesdropping program approved by President Bush after the Sept. 11 terrorist attacks.
[66][needs update] On the same day, the House of Representatives voted 227–189 to approve a Democratic bill that would expand court oversight of government surveillance inside the United States while denying immunity to telecom companies.
[71] The amendments added a new Title VII to the Act, which was slated to expire at the end of 2012 pending reauthorization;[72] Congress subsequently extended the provision to December 31, 2017.
First proposed in response to the disclosures of NSA contractor Edward Snowden, which revealed mass surveillance undertaken by the agency, the USA Freedom Act was intended by its sponsors to provide a "balanced approach" to intelligence gathering.
[78] The law restored and modified several provisions of the Patriot Act, overhauled the NSA, and required the U.S. government to undergo standard court procedures in order to gather data regarding suspicious activities.
[83][84] Beginning in late 2016, the government initiate efforts to persuade Congress to extend the surveillance authority in Title VII of the Act, which, pursuant to the 2008 and 2012 amendments, was slated to expire on December 31, 2017.
[98][99] The January 2018 law also made unauthorized removal and retention of classified information of the United States government a felony crime punishable by five years imprisonment and/or a fine.
[12][102] Several lawmakers, particularly among House Republicans, have called for any reauthorization to be contingent on several reforms,[103] including limiting the scope of who can be investigated, requiring a warrant for surveillance in all instances, and restricting the amount of time collected data can be stored.
The cuts follow a series of reforms the FBI made in the summer of 2021 to limit database searches for information about Americans who correspond with foreigners under surveillance.
[105][106] On April 10, 2024, Donald Trump urged Congress to "kill FISA" based on claims of FBI surveillance during his 2016 presidential campaign, leading libertarian Republicans to join progressive Democrats in opposing Section 702's reauthorization on privacy-related grounds.
[107] After Congress rejected various privacy-related amendments to minimize the gap in Section 702 authorization, the Senate approved the bill by a 60–34 vote with bipartisan support, and President Joe Biden signed the two-year reauthorization on April 20, 2024.