Foreign Intelligence Surveillance Act
The Foreign Intelligence Surveillance Act (FISA) was ratified in 1978 in the United States. The statute was a Congressional reaction to the disclosure throughout several Committee inquiries of preceding abuses of U.S. populaces’ privacy rights by some apparatuses of the United States government. Those abuses had transpired, according to the government, as part of its initiatives to counter supposed threats to national security. Undeniably, these threats occurred in and before 1978. Nonetheless, they affect the national security of the United States. Moreover, they are in the form of terrorism, primarily not only foreign but also domestic terrorism. Although FISA is not a lawfully functioning tool for combating internal terrorism, its electronic surveillance and physical exploration ability are legitimate and operative approaches for observing the actions of external powers and their agents operating within the United States. Certainly, the main purpose of such working activities is to impede terrorist acts and enhance Homeland security. According to the constitution of the United States, the President has the responsibility to uphold, defend, and preserve the constitution. In the twentieth century, restricted use of electronic surveillance to gather and examine intelligence information became a customary facet of the executive powers, essential to guard the nation. For instance, the recurrent use of wiretapping among other forms of electronic surveillance for these functions took shape. There have been several concerns, particularly related to privacy issues regarding FISA edicts. The Foreign Intelligence Surveillance Act has been significant in assisting the government’s ability to act effectively against terrorism and forms of crime, particularly cybercrimes that have enhanced homeland security. The authors emphasize the variations in the security policy and climax some of the anxieties about privacy. The debate over personal privacy and security is among the issues that have raised great concern. Indeed, the Foreign Intelligence Surveillance Act affects Homeland Security in various ways.
The motivation for the Foreign Intelligence Surveillance Act was the abuse of electronic surveillance, conspicuously committed by Richard Nixon and his administration. In 1954, the then U.S. Attorney General Herbert Brownell commanded the Federal Bureau of Investigation (FBI) to undertake secret, warrantless searches and seizures often. During the time, national law enforcement and intelligence gathering agents applied invasive electronic surveillance methods on persons and groups without considering the element of the right to privacy. Some of the victims of such investigations encompassed journalists, white house policy advisors, and antiwar protesters among other groups. As a reaction to these disclosures, the Senate established a Select Committee to investigate government undertakings in their intelligence activities to ascertain the proper response. Encouraged by the recommendations of the Supreme Court that Congress establish discrete ideas and measures for surveillance for intelligence, determinations, and surveillance for criminal inquiries, FISA was ratified in 1978 after a period of deliberation and negotiation.
Initially, the purpose for FISA was to create a firewall between external and domestic intelligence gathering (Osher, 2002). FISA established a clear discrepancy between investigative behavior in internal criminal and external intelligence investigations. Through the creation of this distinction, FISA served to safeguard the Fourth Amendment rights of U.S. people in criminal inquiries. It necessitated the need to establish a probable cause before a search warrant is issued. The provision also upheld citizen’s freedom from irrational search and seizure. Nonetheless, the Fourth Amendment protections do not have a full force under FISA in cases of foreign intelligence investigations. Law enforcement agencies could obtain court orders for wiretaps and searches with a much lower amount of evidence than necessary in a criminal investigation. Instead of the need to validate a possible cause of illegal activity, a FISA order could be dispensed upon asserting that the investigation aimed to collect foreign intelligence information. In the jurisdictive history of FISA, Congress-warranted warrantless searches by homeland security have been extremely neglected. Addressing such future exploitations, FISA established a multifaceted framework for conducting electronic surveillance. This structure was constricted to foreign powers and their agents mainly for the precise primary objective of acquiring intelligence information. Nevertheless, FISA balanced the fortification of Fourth Amendment freedoms of citizens with anxieties of national security by permitting the sufficient executive aptitude to involve in foreign intelligence surveillance. Under FISA, a surveillance authorization mostly needed the consent of the Attorney General and a Foreign Intelligence Surveillance Court (FISC). If the matter or person under investigation or surveillance was a U.S. national, then it was necessary for the warrant to contain a minimization design to guarantee that analytical procedures are involved in seizing information related to the investigation. Moreover, the use of collected evidence on a U.S national under FISA was enormously restricted in any other law enforcement investigations and could only be applied with the consent of the Attorney General (Jaeger et al., 2003). The FISC was intended to inhibit exploitations of power under FISA by authorizing the judicial regulation of intelligence activities in the United States.
FISA had several impacts on the War on Terrorism, mainly regarding homeland security. The Congress’ endorsement of the USA PATRIOT Act, the Intelligence Authorization Act for Fiscal Year 2002, and the Intelligence Reform and Terrorism Prevention Act of 2004, enabled the government to effectively combat terrorism (Federal Bureau of Investigation, 2005). The modifications confined in the impact of the act on every submission made by the Department for electronic surveillance or physical search of supposed terrorists and have allowed the government to be swifter and more elastic in gathering acute intelligence information on supposed terrorists hence enhancing homeland security. The Intelligence Reform and Terrorism Prevention Act of 2004 adopts a “lone wolf” attribute, which exaggerates the picture a foreign power agent to absorb a non-United States citizen regarded to be on his/her own and who engage in global terrorism or other similar endeavors(Federal Bureau of Investigation, 2005).
FISA provisions have enabled the undertaking of Roving Wiretaps, which is significant in enhancing homeland security. In Section 206 of the USA PATRIOT Act, there is an extension of FISA aptitude to pursue a target with an objective of surveillance instead of tying the shadowing to a precise facility and provider when the target’s conduct may have an impact of preventing that surveillance (Liu, 2011). The law enforcement can still utilize roaming surveillance, which various federal courts consider lawful. Nonetheless, some arguments have been raised concerning this provision providing the FBI the freedom of choice to undertake surveillance of citizens who are not appropriate targets of court-sanctioned surveillance. Opponents of section 206 dispute that it allows intelligence detectives to perform “John Doe” roaming surveillance, which permits the FBI to monitor every phone line, portable communications devices, or Internet links that can be utilized by the suspect without determining his/her identity (Federal Bureau of Investigation, 2005). Consequently, they are worried that the FBI may infringe the communications confidentiality of blameless Americans. However, proponents of FISA argue that the government ensures that the name of the targets of such wiretaps provided by the or a portrayal of the target of the electronic surveillance to the FISA Court before obtaining the surveillance order. Thus, all roaming monitoring commands are attached to a particular target whereby the FISA Court is required to develop a probable reason to confirm the presence a foreign power or its agent (Federal Bureau of Investigation, 2005).
The FISA Court normally establishes that the actions of the targetof the submission may have an impact of frustrating an investigation, thereby necessitating scrutiny of the actions of a foreign power, which can be acknowledged or defined. It is also important to note that FISA has always necessitated the government to undertake every surveillance in line with correct minimization measures that constrict the government’s acquirement, holding, and dissemination of inappropriate communications of guiltless citizens. Both the Attorney General and the FISA Court are required to consent those minimization measures. Therefore, these provisions sufficiently safeguard against unjustified governmental invasions into the confidentiality of Americans. Section 207 of the USA PATRIOT Act protects the United States homeland security and guards the civil rights of the U.S. citizens via approved times for collecting FISA (Federal Bureau of Investigation, 2005). The provisions changed times for which electronic surveillance and physical searches are ratified. Therefore, instead of dedicating time to the procedures of recurrently repeating FISA applications in given cases that are considerable, the resources can be dedicated to other undercover activity along with undertaking proper oversight of intelligence gathering agencies.
Among the most expedient and least invasive investigative tools that are applied by intelligence and law enforcement investigators in Homeland security include pen registers and trap, and trace devices. Such devices store information regarding internal and external communications such as mobile numbers of the correspondent among some contacts that are associated with a radical snoop or suspect. However, the devises do not capture important details in communications such as the precise utterances in a phone dialogue. Subsequently, the Supreme Court has maintained that the Fourth Amendment does not protect the discretion interest in data obtained from phone conversations through a pen register (Federal Bureau of Investigation, 2005). However, information gathered through pen registers or trap, and trace tools can be exceptionally expedient in an inquiry. It provides important clues for detectives and may help them in constructing the evidence essential to acquire credible cause to support a content wiretap thus important in enhancing Homeland security.
According to Boykin, (2015), through section 215 of the USA PATRIOT, the Act permits the investigative agents to obtain an order from the FISA Court demanding the creation of any tangible materials, for instance, business records among other materials that are pertinent to a continuing approved national security investigation. In this regard, the United States such a provision cannot be grounded exclusively upon actions safeguarded by the First Amendment of the Constitution. This provision has only been applied only to demand the issuance of driver’s license, public housing, room hire, and credit card records besides the suspect’s data, for instance, names, addresses and contact numbers retrieved through court-sanctioned pen register devices. In the same manner, a prosecutor in an unlawful case may deliver a jury for an item pertinent to his investigation. Such is the case with FISA Court that can issue an order demanding the production of records or items, which are significant in an investigation to safeguard against global terrorism or concealed homeland intelligence activities. The FISA Court needs to endorse the application of section 215 in obtaining business documents before the government delivers a directive to a beneficiary allowed (Federal Bureau of Investigation, 2005). In most instances, Section 215 has been disparaged since it does not exempt libraries and booksellers. The lack of such an exclusion is consistent with criminal undercover practice. Prosecutors have always been in a position to access records from libraries and bookstores through imposing judges’ orders. Libraries and booksellers should not be safe places for terrorists and other criminal perpetrators that endanger homeland security. Most spies have been using public library computers to conduct researchers that are aimed at advancing their undercover activities and interconnect with their accomplices. Nonetheless, anxieties that section 215 permits the government to aim at citizens because of the records they read or websites they visit are erroneous. The provision forbids the government from investigating a US citizen grounded exclusively upon safeguarded First Amendment action. The Department of Homeland Security has clarified that the government may pursue, and a court of law may oblige, only the scrutiny of records that touch on national security inquiry similar to standards that apply to grand jury orders in criminal cases.
FISA had a direct impact on homeland security through The Wall (Sales, 2009). Before the USA PATRIOT Act, submissions for commands permitting electronic surveillance or physical searches under FISA had to incorporate a warranty from a high-placed Executive Branch official. Such was to affirm that the purpose of the surveillance or search was aimed at collecting intelligence information. As inferred by the courts and the Justice Department, this obligation implied that the key objective information gathering was to attain foreign intelligence information instead of proof of a crime. In the preceding years, the fundamental explanation and application of the primary purpose standard sharply constricted the harmonization and information sharing between intelligence and law enforcement agencies. Since the courts appraised the government’s objective for applying FISA at through inspecting the scope and degree of such harmonization, the more coordination that transpired.
In the 1980s, the nation operated under several unwritten guidelines that restricted, to some extent, evidence sharing between intelligence and law enforcement agencies. Nonetheless, things changed in the 1990s when official procedures that were more transparent divided law enforcement and intelligence investigations hence constricting information sharing between intelligence and law enforcement personnel that the law obligated. The endorsement of these measures was inspired in part by the anxiety that the use of FISA establishments would not be permitted to endure in specific inquiries if illegal prosecution began to overwhelm intelligence collecting as an investigation’s fundamental objective. The measures were aimed at allowing an extent of collaboration and information sharing between public prosecutors and intelligence officers. This would take place at the same time guaranteeing that the FBI would be in a position to enhance FISA handling and later utilize it in a criminal prosecution. It is anticipated that coordination as well as communication between the intelligence and the law enforcement groups will be limited in operations compared to what is currently allowed (Federal Bureau of Investigation, 2005). Sections 218 and 504 of the USA PATRIOT Act, nonetheless, assisted in addressing this wall through splitting intelligence and law enforcement personnel in enhancing homeland security (Doyle, 2005). They expunged the supposed constitutional obstruction to more vigorous information sharing between intelligence and law enforcement workforces. They also offered the essential motivation for the exclusion of the official directorial limitations in addition to the casual cultural limitations on information sharing.
Currently, electronic surveillance is among the best approaches the United States has instigated to safeguard homeland security against foreign powers and groups pursuing to perpetrate harm on the nation. Nonetheless, the use of these approaches does not go without triggering debate concerning the negative implications they bear, particularly on the issue of privacy. Electronic surveillance of foreign intelligence has probably saved many innocent lives of citizens through the inhibition of possible acts of belligerence towards the United States homeland security. There are many advantages to the actions approved under the Foreign Intelligence Surveillance Act (FISA) relating to an electronic investigation, despite the pitfalls. By analyzing both the advantages and side effects of electronic surveillance, it is important that a clear understanding of the efficiency of FISA be analyzed as in the current report. Citizen’s feeling of being protected in their country is a critical element for the development and progression of that nation. The United States has been in a position to offer this service. Because of the events leading up to the frightening assaults that were perpetrated on September 11, 2001, and subsequent attacks, the United States’ government started to enact certain laws and guidelines that safeguard the safety of its citizens. From the Foreign Intelligence Surveillance Act (FISA) of 1978, the government has tried, and for the most part thrived, in ensuring homeland security safety. In ensuring that there is a balance between intelligence gathering to defend the safety of the nation and respecting privacy, the Congress has established provisos in FISA, which purpose to harmonize the incompatible objectives of confidentiality and security. The Foreign Intelligence Surveillance Act is a United States centralized decree that sketches and describes the measures for the surveillance and gathering of physical and electronic intelligence in the United States of America. Like any other search and seizure operation, the surveying agencies are mandated to seek authorization from a court arbiter to proceed with the spying. In this regard, FISA has created an own court by which it attains its permits for surveillance. The Foreign Intelligence Surveillance Court was established under FISA for the control of all surveillance licenses by federal police agencies. FISA has ensured a harmonized coordination between Intelligence Community and law enforcement through the effective exchange of information that was not possible before and make good use of the available tools, equipment, and avenues to protect the nation against terrorism. Nonetheless, there is a need for continuous caution against terrorists aiming to interfere with homeland security of the nation. Therefore, allowing the USA PATRIOT Act requirements to would have done a great disadvantage to homeland ability to counter such attacks. FISA has played a significant role in making some changes in the act that has enabled the nation to fight against terrorism. This Act has a demonstrated record of achievement in guarding the American citizens and these provisions ought to be modified from time to match the changing nature of terrorist and other criminal perpetrators.
Boykin, S. A. (2015). The Foreign Intelligence Surveillance Act and the Separation of Powers. UALR L. Rev., 38, 33.
Jaeger, P. T., Bertot, J. C., & McClure, C. R. (2003). The impact of the USA Patriot Act on collection and analysis of personal information under the Foreign Intelligence Surveillance Act. Government Information Quarterly, 20(3), 295-314.
Liu, E. C. (2011). Amendments to the Foreign Intelligence Surveillance Act (FISA) Extended Until June 1, 2015. Congressional Research Service. Washington, DC: June, 16.
Osher, S.A. (2002). Privacy, computers and the Patriot Act: The Fourth Amendment isn’t dead, but no one will insure it. Florida Law Review, 54, 521-542. p. 532.
Sales, N. A. (2009). Mending walls: Information sharing after the USA PATRIOT Act. Tex. L. Rev., 88, 1795.
Federal Bureau of Investigation (FBI, 2005). Select Committee on Intelligence United States Senate. Washington, DC. Retrieved from: https://archives.fbi.gov/archives/news/testimony/usa-patriot-act-amendments-to-foreign-intelligence-surveillance-act-authorities
Doyle, C. (2005, June). USA PATRIOT Act sunset: provisions that expire on December 31, 2005. LIBRARY OF CONGRESS WASHINGTON DC CONGRESSIONAL RESEARCH SERVICE.