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

摘要

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. In so doing, the Congress sought to strike a delicate balance between national security interests and personal privacy rights. 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 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (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, and the Intelligence Reform and Terrorism Prevention Act, P.L. 108-458. In addressing international terrorism or espionage, the same factual situation may be the focus of both criminal investigations and foreign intelligence collection efforts. Changes in FISA under these public laws are intended to facilitate information sharing between law enforcement and intelligence elements. In its Final Report, the 9/11 Commission noted that the removal of the pre-9/11 wall between intelligence and law enforcement has opened up new opportunities for cooperative action within the FBI.