Introduction to Foreign Intelligence Surveillance Act (FISA)

The Foreign Intelligence Surveillance Act (FISA) was first passed in 1978 for the explicit purpose of allowing nonconsensual audio and video interceptions in support of United States counterintelligence investigations of foreign intelligence operations in the United States. Because of the additional security threat posed when going up against foreign intelligence services, the FISA provided for procedures somewhat different from procedures required for domestic electronic surveillance in criminal investigations. The law was subsequently amended to allow for pen register and trap-trace interceptions as well. Later, the authority to conduct covert physical investigative entries, the "sneak-and-peek" entries that have been recently mentioned in conjunction with the USA-PATRIOT Act.

Some terminology needs explaining.

• Nonconsensual audio and video interceptions refer to any audio or video captured during an investigation when none of the parties to the conversation or meeting have given their consent for the interception.
• A pen register is a device attached to a telephone line or a wireless telephone (cellular or GSM phone) circuit for the purpose of obtaining only the information generated by depressing the TouchTone (tm) keys.
• Trap-and-trace refers to the ability of the common carrier (telephone company) to identify the originating number of a party calling the number that has been "trapped". Caller-ID (tm) is an example of trap-and-trace, however Caller-ID can be blocked by one party, whereas common carrier trap-and-trace cannot.

Here are three reports of interest about FISA:

FISA provided by the Electronic Privacy Information Center

Foreign Intelligence Surveillance Act: Selected Legislation from the 108th Congress updated January 2005 by the Congressional Research Service

The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and Recent Judicial Decisions updated in September 2004 by the Congressional Research Service