Updated April 11, 2024

Foreign Intelligence Surveillance Act (FISA): An Overview

Introduction In 2020, three provisions of FISA commonly associated
Congress enacted the Foreign Intelligence Surveillance Act with the Patriot Act lapsed. These provisions, which are
(FISA) in 1978. FISA provides a statutory framework for discussed in more detail below, are covered by a
government agencies to obtain authorization to gather grandfather provision which permits them to remain in
foreign intelligence by means of (1) electronic surveillance, effect with respect to investigations that existed before the
(2) physical searches, (3) pen registers and trap and trace sunset date.
(PR/TT) devices (which record or decode dialing, routing,
addressing, or signaling information), or (4) the production Foreign Intelligence Surveillance Courts
of certain business records. Agencies request authorization FISA established two specialized foreign intelligence courts
for such activities from the Foreign Intelligence to approve the use of FISA investigative authorities. The
Surveillance Court (FISC), a specialized court created by FISC has original jurisdiction over FISA applications, while
FISA to act as a neutral arbiter of agency requests for FISA the Foreign Intelligence Surveillance Court of Review
orders. (FISCR) may hear appeals from the FISC. The FISC is
composed of eleven federal judges, while the FISCR has
FISA’s History three, all designated by the Chief Justice of the U.S.
Following revelations regarding widespread privacy Supreme Court. While the FISC and FISCR normally hear
violations by the federal government during the Watergate ex-parte submissions by the government, the courts also
era, Congress enacted FISA to establish guidelines for have jurisdiction to hear challenges to FISA orders brought
government collection of foreign intelligence. FISA defines by communications providers or other third parties.
“[f]oreign intelligence information” as information relating Pursuant to the USA FREEDOM Act, the FISC and FISCR
to a foreign power or that generally concerns the ability of have also designated seven individuals as eligible to serve
the United States to protect against international terrorism as amici curiae.
or a potential attack by a foreign power or agent of a
foreign power. Though Congress initially limited FISA to Electronic Surveillance and Physical Search Orders
regulating government use of electronic surveillance, Titles I and III of FISA provide a framework by which
Congress subsequently amended FISA to regulate other government agencies may seek a FISA order from the FISC
intelligence-gathering practices, such as physical searches, authorizing electronic surveillance or physical searches for
the use of PR/TT devices, and compelled production of the purposes of collecting foreign intelligence. Before
certain types of business records. submitting an application for such an order to the FISC,
federal officials must first obtain approval from the
Shortly after the 9/11 terrorist attacks, Congress enacted the Attorney General (AG), Acting Attorney General, Deputy
USA PATRIOT Act (Patriot Act) to “provid[e] enhanced Attorney General, or if designated, the Assistant Attorney
investigative tools” to “assist in the prevention of future General for National Security.
terrorist activities and the preliminary acts and crimes
which further such activities.” In particular, Section 215 of Applications for electronic surveillance or physical search
the Patriot Act enlarged the scope of FISA’s business orders must include the following: (1) the applicant’s
records provision. Following information regarding identity; (2) information regarding the target’s identity if
National Security Agency bulk collection of telephone known; (3) why the target may be searched or surveilled;
metadata under Section 215 of the Patriot Act, Congress (4) a statement establishing a sufficient relationship
enacted the USA FREEDOM Act, which narrowed Section between the target and the search location; (5) a description
215 and FISA’s PR/TT authority and provided express of what will be searched or surveilled; (6) a description of
authority for the FISC to appoint amici curiae to the nature of the information sought or of the foreign
supplement its normally ex parte proceedings. intelligence sought; (7) proposed minimization procedures
(addressing the retention, use, and dissemination of
Other major changes to FISA include the FISA intercepted communications); (8) a discussion of how the
Amendments Act of 2008 (FAA), codified as Title VII of search or surveillance will be carried out; and (9) a
FISA. These amendments established procedures governing discussion of prior applications. If electronic surveillance is
the targeting—for intelligence-gathering purposes—of non- sought, applications must also discuss the duration of the
U.S. persons located abroad. They also established statutory surveillance.
and procedural protections regarding surveillance of U.S.
persons located outside the United States. Congress last The government must also include in its applications
reauthorized Title VII of FISA in early 2018. Title VII will written certifications from specified executive branch
sunset on April 19, 2024, absent congressional action. officials regarding the nature, purpose, and significance of
the information to be sought. For the FISC to issue a FISA

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 Foreign Intelligence Surveillance Act (FISA): An Overview

order, the government must show probable cause that the Intelligence (DNI) must jointly certify that they authorize
target of the surveillance is a foreign power or an agent of a any such targeting, and the FISC must approve any program
foreign power, and that the target is using, or is about to under Section 702 before its implementation. If time does
use, the facilities or places at which the search or not permit submitting the requisite certification to the FISC
surveillance is directed. The FISC may approve such an before authorization, the AG and DNI must submit their
application if the above requirements are met and it certification to the FISC within seven days of the
determines that probable cause exists to believe that the commencement of the surveillance.
target of the order is an agent of a foreign power.
The FAA also added Sections 703 and 704 of FISA, which
PR/TT Orders regulate other aspects of foreign intelligence collection.
Title IV of FISA provides procedures for the government to Section 703 grants jurisdiction to the FISC to “review an
apply to the FISC for orders authorizing the installation of application and to enter an order approving the targeting of
PR/TT devices to obtain foreign intelligence information. a United States person reasonably believed to be located
Additionally, if the information sought concerns a U.S. outside the United States to acquire foreign intelligence
person, then a PR/TT device may only be used for information.” Section 704 mandates that, subject to certain
counterterrorism or counterintelligence. A PR/TT exceptions, the government must obtain a FISA order to
application must include (1) the identity of the federal target a U.S. person located abroad when the government
officer seeking to use a PR/TT device; (2) the applicant’s also would have had to obtain a warrant to conduct
certification that the information likely to be obtained is domestic surveillance of that person.
foreign intelligence information; and (3) a specific selection
term to be used as the basis of the PR/TT device. Unlike Expired Provisions
electronic surveillance or physical search orders, the FISC As discussed in more detail in CRS Report R40138, Origins
is not required to evaluate PR/TT applications under a and Impact of the Foreign Intelligence Surveillance Act
probable cause standard, and instead may approve an order (FISA) Provisions That Expired on March 15, 2020, by
after determining that it includes the required components. Edward C. Liu, three provisions of FISA lapsed in 2020.

Business Record Orders The first, Section 206 of the Patriot Act, amended FISA to
Title V of FISA establishes procedures for the government permit “roving wiretaps.” Specifically, if the surveillance
to apply for an order compelling certain businesses to target is taking actions that “may have the effect of
release records in their possession in connection with a thwarting” surveillance (such as using disposable cell
foreign intelligence or counterterrorism investigation by the phone numbers or email addresses), the government could
FBI. The only types of businesses covered are common use a single FISA order to conduct surveillance on new
carriers, public accommodation facilities, storage facilities, phone numbers or email addresses used by the target
and vehicle rental facilities. An application for these without needing to apply to the FISC for a new order.
records must include specific and articulable facts giving
reason to believe that the entity to whom the records pertain The second expired provision, Section 215 of the Patriot
is an agent of a foreign power. Businesses that receive a Act, enlarged the scope of business records that the
FISA business records order are not permitted to disclose government could request to include “any tangible thing.”
the receipt of such order to any other person except as Section 215 also eased the standard that an applicant must
necessary to produce the required documents. meet to obtain a FISA order compelling the production of
“tangible thing[s].” As a result, an applicant for a FISA
FISA Amendments of 2008 order needed only to provide “a statement of facts showing
Title VII of FISA, added by the FAA, establishes additional that there are reasonable grounds to believe that the tangible
procedures to acquire foreign intelligence information things sought are relevant to” a foreign intelligence,
regarding persons who are believed to be outside of the international terrorism, or espionage investigation.
United States. These provisions affect both U.S. persons as
well as non-U.S. persons, and are the only temporary The final expired provision, Section 6001(a) of the
provisions of FISA, scheduled to sunset on April 19, 2024. Intelligence Reform and Terrorism Prevention Act
(IRTPA), also known as the “lone wolf” provision,
The FAA added Section 702 of FISA, which establishes permitted surveillance of non-U.S. persons who are shown
procedures to collect foreign intelligence when to be engaged in international terrorism, but without
communications travel through the United States’ requiring evidence linking those persons to an identifiable
communications infrastructure. Under Section 702, the foreign power or terrorist organization.
government may compel electronic communications service
providers for a period of up to one year to assist in targeting Edward C. Liu, Legislative Attorney
non-U.S. persons reasonably believed to be located outside
the United States. The AG and the Director of National IF11451

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 Foreign Intelligence Surveillance Act (FISA): An Overview

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