Foreign Intelligence Surveillance Act of 1978
| Foreign Intelligence Surveillance Act of 1978 | |
|---|---|
| Short Title | Foreign Intelligence Surveillance Act (FISA) |
| Official Text | Foreign Intelligence Surveillance Act of 1978 |
| Country/Jurisdiction | United States |
| State or Province | |
| Regulatory Bodies | |
| Date Enacted | 1978/10/25 |
| Scope of the Law | Individuals |
| Information | |
| Taxonomy | Aggregation, Decisional Interference, Disclosure, Exclusion, Insecurity, Surveillance |
| Strategies | |
The Foreign Intelligence Surveillance Act (FISA) provides the President to authorize electronic surveillance without a court order. The Act protects communication information from potential security threats and risks. Besides, no one shall furnish individuals' personal information without any given authorization.
Text of the law
SEC. 102. (a) (1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this title to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that— Surveillance
(A) the electronic surveillance is solely directed at— Communication
"Personal#list" contains a listed "#" character as part of the property label and has therefore been classified as invalid.
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 101(a) (1), (2),or(3);or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 101(a) (1), (2), or (3) ;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 101(h); and if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General's certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 108 (a).
(3) The Attorney General shall immediately transmit under seal to the court established under section 103(a) a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of Central Intelligence, and shall remain sealed unless—
(A) an application for a court order with respect to the surveillance is made under sections 101(h) (4) and 104; or
(B) the certification is necessary to determine the legality of the surveillance under section 106(f).
(4) With respect to electronic surveillance authorized by this subsection, the Attorney General may direct a specified communication common carrier to— Exclusion, Insecurity
(A) furnish all information, facilities, or technical assistance
necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier is providing its
customers; and
(B) maintain under security procedures approved by the Attorney General and the Director of Central Intelligence any records concerning the surveillance or the aid furnished which such carrier wishes to retain.
The Government shall compensate, at the prevailing rate, such carrier for furnishing such aid.
(b) Applications for a court order under this title are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under section 103, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 105, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information, except that the court shall not have jurisdiction to grant any order approving electronic surveillance directed solely as described in paragraph (1) (A) of subsection (a) unless such surveillance may involve the acquisition of communications of any United States person.
SEC. 103. Surveillance, Disclosure, Decisional Interference
(a) The Chief Justice of the United States shall publicly
designate seven district court judges from seven of the United States
judicial circuits who shall constitute a court which shall have jurisdiction to hear applications for and grant orders approving electronic
surveillance anywhere within the United States under the procedures
set forth in this Act, except that no judge designated under this subsection shall hear the same application for electronic surveillance
under this Act which has been denied previously by another judge designated under this subsection. If any judge so designated denies an
application for an order authorizing electronic surveillance under this
Act, such judge shall provide immediately for the record a written
statement of each reason for his decision and, on motion of the United
States, the record shall be transmitted, under seal, to the court of
review established in subsection (b).
(b) The Chief Justice shall publicly designate three judges, one of whom shall be publicly designated as the presiding judge, from the United States district courts or courts of appeals who together shall comprise a court of review which shall have jurisdiction to review the denial of any application made under this Act. If such court determines that the application was properly denied, the court shall immediately provide for the record a written statement of each reason for its decision and, on petition of the United States for a writ of certiorari, the record shall be transmitted under seal to the Supreme Court, which shall have jurisdiction to review such decision.
(c) Proceedings under this Act shall be conducted as expeditiously as possible. The record of proceedings under this Act, including applications made and orders granted, shall be maintained under security measures established by the Chief Justice in consultation with the Attorney General and the Director of Central Intelligence.
(d) Each judge designated under this section shall so serve for a maximum of seven years and shall not be eligible for redesignation, except that the judges first designated under subsection (a) shall be designated for terms of froin one to seven years so that one term expires each year, and that judges first designated under subsection (b) shall be designated for terms of three, five, and seven years.
SEC. 104. (a) Each application for an order approving electronic surveillance under this title shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under section 103. Each application shall require the approval of the Attorney based upon his finding that it satisfies the criteria and requirements of such application as set forth in this title. It shall include—
(1) the identity of the Federal officer making the application;
(2) the authority conferred on the Attorney General by the President of the United States and the approval of the Attorney General to make the application;
(3) the identity, if known, or a description of the target of the electronic surveillance;
(4) a statement of the facts and circumstances relied upon by the applicant to justify his belief that—
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;
(5) a statement of the proposed minimization procedures;
(6) a detailed description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance;
(7) a certification or certifications by the Assistant to the President for National Security Affairs or an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate—•
(A) that the certifying official deems the information sought to be foreign intelligence information;
(B) that the purpose of the surveillance is to obtain foreign intelligence information;
(C) that such information cannot reasonably be obtained by normal investigative techniques;
(D) that designates the type of foreign intelligence information being sought according to the categories described in section 101 (e); and
(E) including a statement of the basis for the certification that—
(i) the information sought is the type of foreign intelligence information designated; and
(ii) such information cannot reasonably be obtained by normal investigative techniques;
(8) a statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance:
(9) a statement of the facts concerning all previous applications that have been made to any judge under this title involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application; Aggregation
(10) a statement of the period of time for which the electronic
surveillance is required to be maintained, and if the nature of the
intelligence gathering is such that the approval of the use of
electronic surveillance under this title should not automatically
terminate when the described type of information has first been
obtained, a description of facts supporting the belief that
additional information of the same type will be obtained
thereafter; and
(11) whenever more than one electronic, mechanical or other surveillance device is to be used with respect to a particular proposed electronic surveillance, the coverage of the devices involved and what minimization procedures apply to information acquired by each device.
(b) Whenever the target of the electronic surveillance is a foreign power, as defined in section 101(a) (1), (2), or (3), and each of the facilities or places at which the surveillance is directed is owned, leased, or exclusively used by that foreign power, the application need not contain the information required by paragraphs (6), (7) (E), (8), and (11) of subsection (a), but shall state whether physical entry is required to effect the surveillance and shall contain such information about the surveillance techniques and communications or other information concerning United States persons likely to be obtained as may be necessary to assess the proposed minimization procedures.
(c) The Attorney General may require any other affidavit or certification from any other officer in connection with the application. (d) The judge may require the applicant to furnish such other information as may be necessary to make the determinations required by section 105.
SEC. 105. (a) Upon an application made pursuant to section 104, the judge shall enter an ex parte order as requested or as modified approving the electronic surveillance if he finds that—
(1) the President has authorized the Attorney General to approve applications for electronic surveillance for foreign intelligence information;
(2) the application has been made by a Federal officer and approved by the Attorney General;
(3) on the basis of the facts submitted by the applicant there is probable cause to believe that—
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided; That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;
(4) the proposed minimization procedures meet the definition of minimization procedures under section 101(h); and
(5) the application which has been filed contains all statements and certifications required by section 104 and, if the target is a United States person, the certification or certifications are not clearly erroneous on the basis of the statement made under section 104(a) (7) (E) and any other information furnished under section 104(d).
(b) An order approving an electronic surveillance under this section shall—
(1) specify—
(A) the identity, if known, or a description of the target of the electronic surveillance;
(B) the nature and location of each of the facilities or places at which the electronic surveillance will be directed;
(C) the type of information sought to be acquired and the type of communications or activities to be subjected to the surveillance;
(D) the means by which the electronic surveillance will be effected and whether physical entry will be used to effect the surveillance;
(E) the period of time during which the electronic surveillance is approved; and
(F) whenever more than one electronic, mechanical, or other surveillance device is to be used under the order, the authorized coverage of the devices involved and what minimization procedures shall apply to information subject to acquisition by each device; and
(2) direct—
(A) that the minimization procedures be followed;
(B) that, upon the request of the applicant, a specified communication or other common carrier, landlord, custodian, or other specified person furnish the applicant forthwith all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier, landlord, custodian, or other person is providing that target of electronic surveillance;
(C) that such carrier, landlord, custodian, or other person maintain under security procedures approved by the Attorney General and the Director of Central Intelligence any records concerning the surveillance or the aid furnished that such person wishes to retain; and
(D) that the applicant compensate, at the prevailing rate, such carrier, landlord, custodian, or other person for furnishing such aid.
(c) Whenever the target of the electronic surveillance is a foreign power, as defined in section 101(a) (1), (2), or (3), and each of the facilities or places at which the surveillance is directed is owned, leased, or exclusively used by that foreign power, the order need not contain the information required by subparagraphs (C), (D), and (F) of subsection (b)(1), but shall generally describe the information sought, the communications or activities to be subjected to the surveillance, and the type of electronic surveillance involved, including whether physical entry is required,
(d) (1) An order issued under this section may approve an electronic surveillance for the period necessary to achieve its purpose, or for ninety days, whichever is less, except that an order under this section shall approve an electronic surveillance targeted against a foreign power, as defined in section 101(a) (1), (2), or (3), for the period specified in the application or for one year, whichever is less.
(2) Extensions of an order issued under this title may be granted on the same basis as an original order upon an application for an extension and new findings made in the same manner as required for an original order, except that an extension of an order under this Act for a surveillance targeted against a foreign power, as defined in section 101(a) (5) or (6), or against a foreign power as defined in section 101(a) (4) that is not a United States person, may be for a period not to exceed one year if the judge finds probable cause to believe that no communication of any individual United States person will be acquired during the period.
(3) At or before the end of the period of time for which electronic surveillance is approved by an order or an extension, the judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.
(e) Notwithstanding any other provision of this title, when the Attorney General reasonably determines that—
(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and
(2) the factual basis for issuance of an order under this title to approve such surveillance exists;
Emergency order, he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 103 is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this title is made to that judge as soon as practicable, but not more than twenty-four hours after the Attorney General authorizes such surveillance. If the Attorney General authorizes such emergency employment of electronic surveillance, he shall require that the minimization procedures required by this title for the issuance of a judicial order be followed. I n the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of twenty-four hours from the time of authorization by the Attorney Denial of General, whichever is earliest. In the event that such application for application. approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such surveillance shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any Review. person. A denial of the application made under this subsection may be reviewed as provided in section 103. Testing of (f) Notwithstanding any other provision of this title, officers, electronic employees, or agents of the United States are authorized in the normal equipment. course of their official duties to conduct electronic surveillance not targeted against the communications of any particular person or persons, under procedures approved by the Attorney General, solely to—
(1) test the capability of electronic equipment, if—
(A) it is not reasonable to obtain the consent of the persons incidentally subjected to the surveillance;
(B) the test is limited in extent and duration to that necessary to determine the capability of the equipment;
(C) the contents of any communication acquired are retained and used only for the purpose of determining the capability of the equipment, are disclosed only to test personnel, and are destroyed before or immediately upon completion of the test; and: Termination.
(D) Provided, That the test may exceed ninety days only with the prior approval of the Attorney General;
(2) determine the existence and capability of electronic surveillance equipment being used by persons not authorized to conduct electronic surveillance, if—
(A) it is not reasonable to obtain the consent of persons incidentally subjected to the surveillance;
(B) such electronic surveillance is limited in extent and duration to that necessary to determine the existence and capability of such equipment; and
(C) any information acquired by such surveillance is used only to enforce chapter 119 of title 18, United States Code, or section 605 of the Communications Act of 1934, or to protect information from unauthorized surveillance; or
(3) train intelligence personnel in the use of electronic surveillance equipment, if—
(A) it is not reasonable to—
(i) obtain the consent of the persons incidentally subjected to the surveillance;
(ii) train persons in the course of surveillances otherwise authorized by this title; or
(iii) train persons in the use of such equipment without engaging in electronic surveillance;
(B) such electronic surveillance is limited in extent and duration to that necessary to train the personnel in the use of the equipment; and
(C) no contents of any communication acquired are retained or disseminated for any purpose, but are destroyed as soon as reasonably possible.
(g) Certifications made by the Attorney General pursuant to section 102(a) and applications made and orders granted under this title shall be retained for a period of at least ten years from the date of the certification or application.
SEC. 106. (a) Information acquired from an electronic surveillance conducted pursuant to this title concerning any United States person may be used and disclosed by Federal officers and employees without the consent of the United States person only in accordance with the minimization procedures required by this title. No otherwise privileged communication obtained in accordance with, or in violation of, the provisions of this title shall lose its privileged character. No information acquired from an electronic surveillance pursuant to this title may be used or disclosed by Federal officers or employees except for lawful purposes.
(b) No information acquired pursuant to this title shall be disclosed for law enforcement purposes unless such disclosure is accompanied by a statement that such information, or any information derived therefrom, may only be used in a criminal proceeding with the advance authorization of the Attorney General. Disclosure
(c) Whenever the Government intends to enter into evidence or
otlierwise use or disclose in any trial, hearing, or other proceeding in
or before any court, department, officer, agency, regulatory body, or
other authority of the United States, against an aggrieved person, any
information obtained or derived from an electronic surveillance of
that aggrieved person pursuant to the authority of this title, the Government shall, prior to the trial, hearing, or other proceeding or at a
reasonable time prior to an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the
court or other autliority in which the information is to be disclosed or
used that the Government intends to so disclose or so use such
information.
(d) Whenever any State or political subdivision thereof intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of a State or a political subdivision thereof, against an aggrieved person any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this title, the State or political subdivision thereof shall notify the aggrieved person, the court or other authority in which the information is to be disclosed or used, and the Attorney General that the State or political subdivision thereof intends to so disclose or so use such information.
(e) Any person against whom evidence obtained or derived from an electronic surveillance to which he is an aggrieved person is to be, or has been, introduced or otherwise used or disclosed in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the evidence obtained or derived from such electronic surveillance on the grounds that:—
(1) the information was unlawfully acquired; or
(2) the surveillance was not made in conformity with an oi"der of authorization or approval.
Such a motion shall be made before the trial, hearing, or other proceeding unless there was no opportunity to make such a motion or the person was not aware of the grounds of the motion. (f) Whenever a court or other authority is notified pursuant to subsection (c) or (d), or whenever a motion is made pursuant to subsection (e), or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this Act, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority, shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.
(g) If the United States district court pursuant to subsection (f) determines that the surveillance was not lawfully authorized or conducted, it shall, in accordance with the requirements of law, suppress the evidence which was unlawfully obtained or derived from electronic surveillance of the aggrieved person or otherwise grant the motion of the aggrieved person. If the court determines tha t the surveillance was lawfully authorized and conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.
(h) Orders granting motions or requests under subsection (g), decisions under this section that electronic surveillance was not lawfully authorized or conducted, and orders of the United States district court requiring review or granting disclosure of applications, orders, or other materials relating to a surveillance shall be final orders and binding upon all courts of the United States and the several States except a United States court of appeals and the Supreme Court.
(i) In circumstances involving the unintentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States, such contents shall be destroyed upon recognition, unless the Attorney General determines that the contents indicate a threat of death or serious bodily harm to any person.
(j) If an emergency employment of electronic surveillance is authorized under section 105(e) and a subsequent order approving the surveillance is not obtained, the judge shall cause to be served on any United States person named in the application and on such other United States persons subject to electronic surveillance as the judge may determine in his discretion it is in the interest of justice to serve, notice of—
(1) the fact of the application;
(2) the period of the surveillance; and
(3) the fact that during the period information was or was not obtained.
On an ex parte showing of good cause to the judge the serving of the notice required by this subsection may be postponed or suspended for a period not to exceed ninety days. Thereafter, on a further ex parte showing of good cause, the court shall forego ordering the serving of the notice required under this subsection.
SEC. 109.
(a) OFFENSE.—A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute. Disclosure
(b) DEFENSE,—It is a defense to a prosecution under subsection (a)
that the defendant was a law enforcement or investigative officer
engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or
court order of a court of competent jurisdiction.
(c) PENALTY..—An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
(d) JURISDICTION.-—There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.
SEC. 201. Chapter 119 of title 18, United States Code, is amended as follows:
18 use 2511. (a) Section 2511(2) (a) (ii) is amended to read as follows:
"(ii) Notwithstanding any other law, communication common carriers, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire or oral communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if the common carrier, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with—
"(A ) a court order directing such assistance signed by the authorizing judge, or
"(B) a certification in writing by a person specified in section 2518(7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required, setting forth the period of time during which the provision of the information, facilities, or technical assistance is authorized and specifying the information, facilities, or technical assistance required. No communication common carrier, officer, employee, or agent thereof, or landlord, custodian, or other specified person shall disclose the existence of any interception or surveillance or the device used to accomplish the interception or surveillance with respect to which the person has been furnished an order or cei'tification under this subparagraph, except as may otherwise be required b}'^ legal process and then only after prior notification to the Attorney General or to the principal prosecuting attorney of a State or any political subdivision of a State, as may be appropriate. Any violation of this subparagraph by a communication common carrier or an officer, employee, or agent thereof, shall render the carrier liable for the civil damages provided for in section 2520. No cause of action shall lie in any court against any communication common carrier, its officers, employees, or agents, landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the terms of an order or certification under this subparagraph.".
(b) Section 2511(2) is amended by adding at the end thereof the following new provisions:
"(e ) Notwithstanding any other provision of this title or section 605 or 606 of the Communications Act of 1934, it shall not be unlawful for an officer, employee, or agent of the United States in the normal course of his official duty to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, as authorized by that Act.
"(f) Nothing contained in this chapter, or section 605 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications by a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire and oral communications may be conducted.".
(c) Section 2511 (3) is repealed.
(d) Section 2518(1) is amended by inserting "under this chapter" after "communication".
(e) Section 2518(4) is amended by inserting "under this chapter" after both appearances of "wire or oral communication".
(f) Section 2518(9) is amended by striking out "intercepted" and inserting "intercepted pursuant to this chapter" after "communication".
(g) Section 2518(10) is amended by striking out "intercepted" and inserting "intercepted pursuant to this chapter" after the first appearance of "communication".
(h) Section 2519(3) is amended by inserting "pursuant to this chapter" after "wire or oral communications" and after "granted or denied".
Disclaimer: The text of this law may not be the most recent version. We make no warranties or representations about the accuracy, completeness, or adequacy of the information contained on this site. Please check official sources.
} } }