Foreign Intelligence Surveillance Act of 1978

Citation: Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §§1861 et seq.

The Foreign Intelligence Surveillance Act of 1978 (FISA) governs the use of wiretapping to collect “foreign intelligence.” The eleven judges of a special court, whose members are assigned from the federal bench, may authorize surveillance upon applications approved by the Attorney General asserting probable cause to belief that the effort will yield foreign intelligence. FISA court surveillance orders are crafted to minimize the capture of conversations not related to foreign intelligence. Officers may share the results with law enforcement officials for the performance of their duties.

The Attorney General may authorize emergency surveillance for 72 hours while a FISA order is being secured. The President may authorize surveillance without a court order during time of war or for communications between or among foreign powers. If the government intends to use the results as evidence in judicial proceedings it must inform the parties to the intercepted conversations. Challenges to the legality of the surveillance may be considered ex parte upon petition of the Attorney General.

Unlawful surveillance is subject to criminal, civil, and administrative sanctions, and evidence illegally secured may be suppressed. FISA also empowered judges of the FISA court to issue physical search orders under limitations similar to FISA surveillance orders. In foreign intelligence cases, FISA likewise tracks the procedure used in criminal cases for the installation and use of pen register and trap and trace devices under court order. Finally, it called for FISA orders for the production of tangible items in foreign intelligence and international terrorism investigations.