What the heck is FISA anyway?

There’s been a lot of talk about FISA recently. Unfortunately, much of it is wrong. It’s not surprising. FISA is a complicated statute implemented via a labyrinth of procedures by multiple federal agencies. And the vast majority of this work is classified. Between the now-declassified unmasking requests of General Flynn, surveillance of former Russian Ambassador Kislyak’s phone calls, lapsed intelligence authorities, and President Trump’s Tuesday night veto tweet, it’s no wonder media pundits, legal commentators, and politicians are struggling to keep it all straight.

There aren’t enough hours in the day to individually respond to each inaccuracy. So instead I offer this primer on FISA and how it works.

What is FISA?

FISA is the Foreign Intelligence Surveillance Act of 1978. It sets forth the procedures for how the government collects foreign intelligence inside the United States. FISA provides a variety of intelligence-gathering tools, including what many refer to as “surveillance,” which is a fancy term for monitoring telephone calls or emails of court-approved targets. Targets of this surveillance are foreign powers or their agents (more on this below).  

FISA also authorizes physical searches, business records collection, and the use of pen register/trap and trace devices. All of this is overseen by the Foreign Intelligence Surveillance Court (FISC), by Congress, by the Privacy and Civil Liberties Oversight Board (PCLOB), and subject to executive branch reviews and audits.

What is the FISC?

The FISC is the court to which the government applies for permission to conduct surveillance of a foreign power or its agents in the US, or to use one of the other tools. Yes, the FISC is a “secret” court in that its proceedings are classified. It has to be. Spying doesn’t happen out in the open. If it did, we’d call it something else. But here’s the thing. Every time a criminal court approves a wiretap or a search warrant, it also does so in “secret.” It does so to prevent suspected criminals from destroying evidence, tampering with witnesses, or absconding. It also does so to protect the identities and reputations of suspects that are not ultimately charged with a crime. The same is also true for intelligence collection, unless FISA data is declassified (which is different than leaked).

The FISC is a singular court that sits in Washington, D.C. It is comprised of 11 federal district court judges appointed by the Chief Justice of the United States to serve staggered 7 year terms. These judges serve in federal districts around the country and travel to D.C. periodically to rule on FISA applications.

Can FISA be used to spy on Americans?

Yes! This is without a doubt the most misunderstood purpose of FISA. FISA was enacted with a specific purpose – to establish statutory rules for foreign intelligence collection on people inside the US, including Americans. FISA authorizes surveillance of foreign powers or their agents. Americans can most certainly be foreign agents. Our history is replete with instances of Americans siding with our adversaries (Benedict Arnold, anyone?), spying against their own country (Aldrich Ames, Robert Hanssen), or aligning with terrorist organizations (Anwar al-Awlaki, Nidal Hasan, the Tsarnaev brothers, Syed Farook and Tashfeen Malik).

But isn’t using FISA to spy on Americans unconstitutional?

No. In 1972, the US Supreme Court held that so-called domestic security surveillance required a warrant. But the Court declined to address the warrant clause’s application to surveillance of foreign powers and their agents. Since then, federal courts and the FISC have recognized a foreign intelligence exception to the warrant requirement. But this surveillance must still satisfy the 4th Amendment’s reasonableness requirement.   

That’s where FISA comes in. FISA requires the government to obtain FISC approval to surveil people inside the United States and to do so, it must show probable cause that the person is an agent of a foreign power. If the target is a foreign national employed by a foreign government (i.e. former Russian Ambassador Kislyak) or spying on the US in the US, the probable cause threshold is satisfied. If the target is a U.S. person, the government must go further and show probable cause that she is engaging in criminal behavior on behalf of a foreign government or terrorist organization.

Proponents of repealing FISA altogether may want to think twice as it would potentially eliminate the role of any court and Congress from the executive branch’s foreign intelligence collection in the US.

Can Americans’ communications be collected even if they aren’t the target?

Yes. This appears to be how the phone call(s) between Kislyak and Flynn were obtained. The FBI was reportedly surveilling Kislyak via FISA, and Flynn’s conversation(s) with him were incidentally collected. To be clear, incidental collection is not accidental collection. It is by design. Just as it takes two to tango, it also takes two (or more) to communicate. So when the government is targeting one person, it also collects the communications of the people that person is talking to.

Under “minimization” procedures, the government is required to “mask” (redact) the identity of Americans whose communications are incidentally collected. The US person’s identity can be unmasked either by the surveilling agency or upon request of certain high-ranking government officials if it’s deemed necessary to understand the foreign intelligence collected. But even an unmasked identity is still classified and, in the case of General Flynn, was illegally leaked to the media.

So what is Congress voting on this week?

The House is poised to vote tonight on FISA reauthorization legislation returned by the Senate with an amendment. Both President Trump and Attorney General Barr have publicly opposed the bill, although for arguably different reasons. Three amendments to FISA are temporary and were allowed to expire by Congress back on March 15th. The most controversial of these is known by its PATRIOT Act moniker – Section 215 – and governs how the government acquires certain business records and houses the now defunct NSA telephony metadata program approved in 2015. The other two – the “lone wolf” definition and roving authority – are housed within FISA’s surveillance provision, but otherwise that portion of the law is permanent.

The reauthorization does include several changes intended to address concerns with the Russia collusion investigation and how the Carter Page surveillance orders were obtained. President Trump seems to be ready to veto because he does not think these reforms go far enough. His attorney general, however, is opposed to additional changes made by the Senate (expanding the role of FISC amicus curiae) and an amendment proposed by Reps. Lofgren and Davidson to prohibit the use of Section 215 to acquire US persons’ Internet browsing data. Due to mounting opposition from both congressional Democrats and Republicans, that amendment was ultimately not made in order. But passage of the bill remains in jeopardy.

If the House concurs in the bill without further amendment, the ball is in President Trump’s court to veto it. If he does, it’s back to the drawing board for Congress as they do not have the votes to override his veto.