Intelligence Law School - Course 1: Lesson 4.5.2 The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. §§ 1801-1885c) [HTML-Only]


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LESSON 4: STATUTORY LAW


4.5 Framework Statutes (U.S. Code Title 50, Chapter 36: Foreign Intelligence Surveillance)


4.5.2 The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. §§ 1801-1885c)


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Annotated Lecture Transcript

4.5.2 The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. §§ 1801-1885c)

The most important framework statute in U.S. intelligence law context is the Foreign Intelligence Surveillance Act of 1978 (FISA).[1]

The bulk of this important intelligence law statute is codified as Chapter 36 of Title 50 of the U.S. Code.

It sets out the manner in which government agencies may engage in electronic surveillance for foreign intelligence purposes within the United States.

 

Ø  The Foreign Intelligence Surveillance Court: FISA also established a new special court and mandatory procedures that government investigators must use in order to obtain a warrant to conduct foreign intelligence surveillance on targets in the United States.

Ø  Criminal Penalties: FISA also provides substantial criminal penalties for non-compliance—up to 5 years in prison and a $10,000 fine per violation.[2]

Ø  Beyond Electronic Surveillance: FISA provides the basic operating requirements for federal investigators and intelligence professionals seeking to perform electronic surveillance in the United States.

Ø  It was originally passed in 1978, but has been modified numerous times since then by amendatory statutes passed by Congress.

Ø  The USA PATRIOT Act, for example, amended some of FISA’s provisions.

o   Framework statutes like FISA are rare, often landmark pieces of legislation that define the legal framework governing an important area of Executive Branch operations, often aimed at curbing abusive use of discretionary authority through funneling the exercise of that power through proper procedures.

o   You often hear about different statutes being passed which affect intelligence operations in some way, but such statutes almost always just modify parts of existing framework statutes.

o   The USA PATRIOT Act, for example, didn’t create a new regulatory framework, but rather just modified existing frameworks by adding powers and reducing safeguards against government overreaching.

o   There is no USA PATRIOT Act chapter in the U.S. Code.

o   There is, however, a Foreign Intelligence Surveillance Act chapter in the Code—it’s Chapter 36 of Title 50.

o   When it comes to foreign intelligence surveillance, FISA established the fundamental statutory framework that all future statutes governing foreign intelligence surveillance will simply modify.

 

Footnotes

[1] See generally David Alan Jordan, Decrypting the Fourth Amendment: Warrantless NSA Surveillance and the Enhanced Expectation of Privacy Provided by Encrypted Voice over Internet Protocol, 47 B.C. L. Rev. 505 (2006) (discussing FISA and the legal framework governing NSA signals intelligence operations).

[2] Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1809(c)(“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.”).

 


© 2012 David Alan Jordan. All rights reserved.