As recent public discussions regarding topics like surveillance and foreign influence demonstrate, every cleared professional should have a great handle on the Foreign Intelligence Surveillance Act (FISA)—what it is and why it matters. Thankfully, the Office of the Director of National Intelligence (ODNI) just released its public-facing paper “The FISA Amendment Act: Q&A,” 10 pages full of FISA-related details and data, a great primer for anyone who wants to begin discussions on FISA intelligently. Here are a few key points ODNI offers for consideration.
WHAT iS FISA?
FISA is not the Federation of International Soccer Associations any more than it’s some new-fangled deep state sanctioned law incrementally abrading civil liberties. FISA, or the Foreign Intelligence Surveillance Act, is a product of the late 70s, when Congress gave “the Executive Branch with a court-authorized process for conducting four specific types of electronic surveillance against foreign powers or their agents operating inside the United States.” Note—in 1978, FISA was about foreign agents inside the U.S. Three decades latter, Congress expanded FISA to respond to contemporary threats against the United States, including threats outside the US. That expansion is Title VII of FISA, which permits “additional procedures for targeting certain persons located outside the United States with surveillance.” Title VII is about terrorism, terrorists, and terrorist organization, and it’s about “collection of foreign intelligence information about the intentions and capabilities of spies, weapons proliferators and other foreign adversaries who threaten the United States…”
FISA IS FOREIGN
Just reading through the ODNI primer, FISA’s focus on foreign nationals becomes pretty quickly clear. Just look at the title—it’s the Foreign Intelligence Surveillance Act. In fact, in just the 10 pages of the ODNI paper, the word foreign pops nearly 70 times: “foreign intelligence surveillance activities,” “foreign intelligence information,” “foreign adversaries who threaten the United States,” “foreign power or an agent of a foreign power,” and so on. The 2008 Amendment to FISA is still about foreign persons representing a threat to the U.S., but it expands the reach of FISA to foreign persons in foreign places. The 1978 law put “foreign persons located outside the U.S. would be outside of FISA’s ambit.” The fact is, the Constitution provides no protections to foreign persons in foreign places.
CIVIL LIBERTY MATTERS
Contrary to some popular belief, FISA does not throw our Civil Liberties out the window for the sake of security. FISA is quite careful to require pretty extensive measures to protect the Civil Liberties of Americans—Americans inside and outside the United States. For instance, the Fourth Amendment still protects Americans, still protects Americans “anywhere in the world,” even if that particular American might lead to a foreign person on U.S. soil: “The government may not target someone located outside the United States for the purpose of targeting a particular, known person in this country or any U.S. person, regardless of location.” And when someone takes the FISA discussion to the nefarious bulk collection discussion, you can politely remind that FISA requires that “[t]he Government individually identifies or tasks each specific communications facility, such as a phone number or email address, based on an individualized assessment that it is used by a foreign intelligence target located abroad who communicates, possesses, or is likely to receive one of the categories of foreign intelligence information authorized for acquisition by the [Attorney General] and DNI.”
Mitt Romney famously said, “Corporations are people, too.” And when it comes to matters of law, corporations are treated like people. Just as FISA does not allow collection on US persons, neither does it permit collection on “U.S. corporations and unincorporated associations where a substantial number of members are U.S. persons.” On the other hand, if the corporation is a foreign corporation, then FISA can reach the entity.
All that’s just a start. There’s plenty more to learn, and ODNI’s “FISA Amendment Act: Q&A” is a great places to start.