FISA Law & Investigations

• After the September 11 attack, the U.S. government has increased the methods used to gather intelligence about foreign operations that pose national security threats.
• The Foreign Intelligence Surveillance Act (“FISA”) is a U.S. federal law that was passed in 1978 to establish procedures for electronic or physical surveillance of individuals who pose national security threats.
• Since its enactment, FISA has underwent significant changes and amendments that have expanded its reach and the government’s surveillance techniques.
• The Foreign Intelligence Surveillance Court (“FISC”) is a special court that was established by FISA to handle the government’s requests for surveillance warrants.
• The Foreign Intelligence Surveillance Court of Review (“FISCR”) was also established by FISA with the objective of reviewing applications for electronic surveillance warrants that have been denied.
• Consider hiring an experienced team of defense attorneys who can advise you on the FISA investigative process.

Put our highly experienced team on your side

Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd

Former Department of Justice

Brian J. Kuester

Former U.S. Attorney
Former DA

John W. Sellers

Former Senior Trial Attorney
U.S. Department of Justice

Local Counsel

Joanne Fine DeLena

Former Assistant U.S. Attorney

Local Counsel

Joe Brown

Former U.S. Attorney & Former District Attorney

Local Trial & Defense Counsel

Amanda Marshall

Former U.S. Attorney

Local Counsel

Aaron L. Wiley

Former Federal Prosecutor

Local Counsel

Roger Bach

Former Special Agent (OIG)

Michael Koslow

Former Supervisory Special Agent (FBI)

Chris Quick

Former Special Agent (FBI & IRS-CI)

Ray Yuen

Former Supervisory Special Agent (FBI)

Experienced FISA Law and Investigations Defense Team

If you need advice regarding the FISA investigative process, get in contact with one of our defense attorneys.

Since FISA’s enactment in 1978, the law has significantly expanded in scope, which has increased the permissible surveillance options for the government.

Understandably, the broad reach of FISA and powers given to governmental agencies that have their warrant applications approved raise significant privacy concerns.

Having experienced counsel on your side to explain the complexities of FISA law is an important part of staying up-to-date on all regulatory amendments regarding the federal power to use surveillance warrants.

At Oberheiden, P.C., our team of FISA attorneys can explain FISA investigations, how it has changed, the extent to which it interferes with privacy laws, and how it affects American citizens.

Do not wait to get in touch with a qualified team of FISA law attorneys today.

Put Oberheiden, P.C. on your side to advise you on the FISA investigative process and FISA laws.

History of U.S. Surveillance

Introduction

Surveillance has always been an important issue for Americans due to the privacy concerns. However, the past two decades have seen significant transformations to the methods the United States uses to conduct surveillance.

After the 9/11 terrorist attacks, the U.S. government has ramped up the methods used to gather intelligence about secret foreign operations that pose a threat to the national security interests of the United States.

The Foreign Intelligence Surveillance Act (“FISA”) is a U.S. federal law that was passed in 1978. Since then, U.S. governmental surveillance methods have been criticized as highly intrusive to the personal lives of individuals. In fact, FISA has been described as one of the most controversial laws regarding surveillance.

Amendments and Additional Public Reaction

Since its enactment in 1978, FISA has underwent significant changes and amendments—most of which have expanded its reach.

For instance, following the 2001 terrorist attacks, the Patriot Act of 2001 made significant amendments to FISA. Further, the USA Freedom Act of 2015 made additional changes in the midst of the leaks by Edward Snowden.

The U.S. government contends that FISA is intended to protect the nation against threats to its national security; therefore, government surveillance is necessary under certain circumstances.

However, many individuals are worried that FISA has the potential to infringe on the personal and private lives of American citizens due to the government’s ability to monitor and collect multiple sources of information from Americans.

What is FISA?

FISA, or the Foreign Intelligence Surveillance Act, was passed in 1978 to establish a set of procedures for electronic or physical surveillance of individuals who pose potential national security threats. FISA also addresses the collection of intelligence information regarding suspected terrorism and espionage.

It was originally limited to electronic wiretapping but was amended in the early 1990s to cover physical entry surveillances and then again in the late 1990s to allow for pen and trap order—which allow the government to obtain certain metadata such as email addresses, phone numbers of calls, and other electronic information relating to telephone lines.

Overall, FISA establishes a system for foreign surveillance. Specifically, while the wiretap statute describes the methods used for typical law enforcement surveillances, FISA describes the procedures that the government uses to gather foreign intelligence in order to protect U.S. national security.

The standard under FISA requires a finding of probable cause that the target of the proposed surveillance is a foreign agent of a foreign power or a foreign power itself.

A foreign power or agent of a foreign power can be a target even if that individual is not alleged to have violated any criminal legislations.

If, however, the target of the proposed surveillance is a U.S. person, the standard requires a finding of probable cause that the U.S. person’s conduct involves criminal activity that violates criminal legislation.

What Is the Foreign Intelligence Surveillance Court?

The Foreign Intelligence Surveillance Court (“FISC”) is a special court that was established by FISA. It is composed of federal district court judges who are each appointed by the Chief Justice of the U.S. Supreme Court for staggered terms.

The objective of FISC is to handle the government’s requests for surveillance warrants with respect to foreign agents of foreign powers or foreign powers as well as spies in the United States.

Within the government, it is the Federal Bureau of Investigation (“FBI”) and the National Security Agency (“NSA”) that most often make these surveillance requests to the court.

The court’s operations are carried out with a high degree of secrecy. The FISC is regarded as a secret court due to the classified nature of its proceedings. As a result, the hearings are closed to the public.

What is the Foreign Intelligence Surveillance Court of Review?

The Foreign Intelligence Surveillance Court of Review (“FISCR”) was also established by FISA in 1978. FISCR is a U.S. federal court with the objective of reviewing applications for electronic surveillance warrants that have been denied.

Under FISA, FISC decisions can be appealed to a panel of judges on the FISCR. Granted electronic surveillance warrants, however, cannot be appealed.

The requests for review of denied surveillance warrants can only be made by the government, though briefs may be submitted by other parties as amici curiae.

Similar to the operations and proceedings of the FISC, those of the FISCR are confidential and classified and therefore not open to the public. The reason for such secrecy is due to the sensitive nature of the case and the fact that the government is the only party who appears before the FISC and the FISCR.

The Application for a FISA Surveillance Warrant

When the government applies for a FISA surveillance warrant, its application is heard before one of the judges on the FISC. That one judge then decides whether to approve or deny the government’s application for a FISA surveillance warrant.

If the judge denies the government’s application, the government may appeal to the FISCR. The government is not allowed, however, to submit their application to another judge on the FISC.

The appeal process is very rare. The first appeal occurred in 2002. The reason why appeals rarely occur is because the FISC seldom denies a FISA warrant application by the government.

Sometimes, the Attorney General of the United States makes the determination that there is an emergency situation at hand and, therefore, authorizes the electronic surveillance immediately prior to receiving the authorization from the FISC. In such cases, the Attorney General must still notify a judge on the FISC and apply for the warrant.

Once the FISA warrant application is approved, the government can begin its surveillance operations. As a part of its investigation, the government could utilize electronic surveillance, physical surveillance and searches, or other investigative surveillance methods.

Need Advice Regarding FISA Law and Investigations?

FISA laws and FISA investigations raise significant privacy concerns for American citizens and American businesses.

The FISA legislation continues to undergo significant changes and amendments that broaden the scope and extent of the statute.

It is therefore important to be aware of upcoming changes to the FISA application process and the use of surveillance laws in the United States.

If you need advice regarding the FISA surveillance process, you need the advice of a skilled attorney right away.

At Oberheiden, P.C., our attorneys are trained to stay abreast of foreign surveillance laws and explain to our clients how it can affect them.

Call us today at 888-680-1745 or contact our office for a free consultation to advise you on FISA law and investigations.