Duhaime's Law Dictionary


FISA Order Definition:

(USA) A court order approving electronic surveillance or a search of a target suspected of acting on behalf of a foreign power or terrorist organization.

A search warrant issued on the application of the government of the United States for the physical search or electronic surveillance pursuant to the Foreign Intelligence Surveillance Act, now at Chapter 50 of the United States Code, an American law which came into force during the administration of Jimmy Carter (1978).

"FISA established a requirement of judicial approval before the government engages in an electronic surveillance (as well as physical searches) for foreign intelligence purposes. The act established the FISA Court, consisting of U.S. District Court judges designated by the chief justice of the U.S. Supreme Court. The court’s purpose is to review government applications for national security electronic monitoring and searches and authorize their use with appropriate limitations."1

The application for a FISA Order is often made by the Central Intelligence Agency (CIA) or the Federal Bureau of Investigation. The applicant must show probable cause that the target is acting for or on behalf of a foreign power (a foreign power is defined to include a group engaged in international terrorism). There need not be reference to a recognized terrorist organization. Two people can be a group engaged in international terrorism.2

 In the 2012 decision of the United States District Court in US v Alwan, Justice Thomas Russell wrote:

"To issue an order, a FISA judge must find that: 1) the application has been made by a federal officer and approved by the Attorney General; 2) on the basis of the facts submitted with the application, there is probable cause to believe that the target of the electronic surveillance or physical search is a foreign power or agent of a foreign power and that the facilities or places subject to the electronic surveillance, or the property or premises to be searched, is being used, or is about to be used, owned, or possessed by, or is in transit to or from a foreign power or an agent of a foreign power; 3) the proposed minimization procedures meet the definition of minimization procedures; 4) and the application filed contains all of the statements and certifications required by the electronic surveillance or physical search application statutes....

FISA Order sample situation

"In the case of electronic surveillance, a FISA order must specify: 1) the identity of the target; 2) the nature and location of the facilities at which the electronic surveillance will be directed; 3) the type of information sought to be acquired and the type of communications subject to the surveillance; 4) the means by which the electronic surveillance will be effected and whether physical entry will be used to effect the surveillance; and 4) the time period during which electronic surveillance is approved.

"For a physical search, a FISA order must specify: 1) the identity of the target; 2) the nature and location of the premises or property to be searched; 3) the type of information, material, or property to be seized, altered, or reproduced; 4) a statement of the manner in which the physical search is to be conducted and, if there is more than one physical search authorized, the authorized scope of each search and what minimization procedures apply to each; and 5) the period of time during which the physical searches are approved.

In 1984, in United States v. Duggan, Justice Kearse of the United States Court of Appeals, used these words to describe the Court order:

 

"A federal officer making application for a FISA order approving electronic surveillance must include in his application, inter alia, the identity, if known, or a description of the target of the electronic surveillance, ... a statement of the facts and circumstances relied upon by the applicant to justify his belief that ... the target of the electronic surveillance is a foreign power or an agent of a foreign power, ... and a certification by the Assistant to the President for National Security Affairs, or an executive branch designee of the President that, inter alia, the certifying official deems the information sought to be foreign intelligence information and that the purpose of the surveillance is to obtain foreign intelligence information, together with a statement of the basis for the certification that the information sought is the type of foreign intelligence information designated.

"When the target is a United States person, the government is required to minimize the acquisition and retention of non-publicly available information and to prohibit its dissemination, consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information, and the application must set out what minimization procedures are proposed....

"The FISA Judge is authorized to enter an order approving electronic surveillance if he finds, inter alia, that on the basis of the facts submitted by the applicant there is probable cause to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power (but) 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...."

 

One amendment allowed for roving wiretaps, which allowed the law enforcement agency to:

"...follow the target for purposes of surveillance rather than tie the surveillance to a particular facility and provider when the target’s actions may have the effect of thwarting that surveillance.3

REFERENCES:

  • NOTE 1: Bulzomi, Michael, Foreign Intelligence Surveillance Act - Before and After the USA PATRIOT Act, 72:6 FBI Law Enforcement Bulletin 25 (2003)
  • NOTE 2: Blum, Stephanie Cooper, Use It and Lose It: An Exploration of Unused Counterterrorism Laws and Implications for Future Counterterrorism Policies, 16 Lewis & Clark L. Rev. 677 (2012)
  • NOTE 3: Testimony of Alberto Gonzales and Robert Mueller, Attorney General of the United States, Director Federal Bureau of Investigation to the Select Committee on Intelligence, United States Senate, Washington, DC, on April 27, 2005. Retrieved foom the Internet on 14-FEB-2013 from http://www.fbi.gov/news/testimony/usa-patriot-act-amendments-to-foreign-intelligence-surveillance-act-authorities.
  • US v Alwan, 2012 (Case No. 1:11-CR-13-R, United States District Court, W.D. Kentucky, Bowling Green Division)
  • United States v. Duggan, 743 F. 2d 59 (1984)

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