ForeignIntelligence Surveillance Act
Althoughit is more applicable in the modern world, where threat ofinternational terrorism is eminent as a result of emergence ofterrorists groups around the world, foreign surveillance is not new.The Foreign Intelligent Surveillance Act was enacted and signed intolaw in 1978. The federal law outlines the procedures that guideelectronic and physical surveillance to collect intelligentinformation. The act also prescribes how the security systems in theUnited States should deal with security information collected fromforeign powers and their agents. The law became more relevant in therecent past especially after the September 11 attack which resultedinto several amendment of the act in order to enable it deal with theemerging challenges in the fight against international terrorism.Some of the most important provisions of the Foreign IntelligentSurveillance Act include electronic surveillance, physical searches,Foreign Intelligent Surveillance Act Courts, remedies for violation.The amendments of the act, which includes the lone wolf amendment andother recent amendments, are also important provisions of the ForeignIntelligent Surveillance Act1.
Theprovision of electronic surveillance consists of two main scenarios,with a court order and without a court order. According to theprovisions of the Foreign Intelligent Surveillance Act, the presidentof the United States, through the attorney general, can authorizeelectronic surveillance for a specified period of time withoutnecessarily requiring a court order. This provision is onlyrestricted to the gathering of foreign intelligence information. Thismeans that such surveillance should not involve communications withan individual within the United States. After an authorization by thepresident has been issued, the attorney general is expected to issuea certification outlining the conditions of the surveillance.However, the provision of warrantless surveillance is not allowed ifthe parties involved are international terrorism group, politicalorganizations and government entities in foreign countries. Engagingin warrantless electronic surveillance without the necessaryauthorization is a criminal offense. Alternatively, the ForeignIntelligent Surveillance Act provides for the option of seeking acourt order from the FISA Court in order to conduct electronicsurveillances. The court will analyze the probable cause and meritsof the surveillance. If the surveillance meets the minimumrequirements, the court will issue a surveillance court order. Thiselectronic surveillance provision of the Foreign IntelligentSurveillance Act is the most important section of the act2.
‘Physicalsearches’ is also provided for in the Foreign IntelligentSurveillance Act. It involves physically searching the premises,property and materials used or in possession of a foreign power.According to the act, the requirements as well as restrictions of theprovisions are identical to the electronic surveillance provisions.Another important provision of the act is the Foreign IntelligentSurveillance Act Court. The court was created by the act and isresponsible for all warrants requested related to the act. The courtis served by eleven judges and uses a non adversarial and ex partesystem in its proceedings. This means that the evidence considered inthe court is only presented by the department of justice. Theremedies of violation outline the criminal actions that can be takenagainst an individual as a result of violation of provisions in theact. There are several amendments on the Foreign IntelligentSurveillance Act. They includes the “lone wolf amendment” whichrelated to non Americans involved in international terrorism, “ThePatriotic Act of 2001”, “Terrorist Surveillance Act of 2006”,“Protect America Act of 2007” and “Foreign IntelligentSurveillance Act of 1978 Amendments Act of 2008”. The recentamendments of the act were sparked by increased threat ofinternational terrorism and the event after September 11 attack onAmerica. The amendments seek to ease the restrictions made by theact, add statutory authority to the executive, provide telecomsimmunity and allow emergency eavesdropping3.
Prosand cons of “The Patriotic Act of 2001”
Althoughconsidered as an independent law, “The Patriotic Act of 2001” isone of the provisions that had huge impacts on the ForeignIntelligence Surveillance Act of 1978. The acronym stands for“Unitingand StrengtheningAmericaby ProvidingAppropriateToolsRequiredto Interceptand ObstructTerrorismAct of 2001”.Whilethe provisions have brought a lot of positive changes, it hasreceived a lot of criticism. Some of the main aspects of the actinclude new federal laws to guide wiretapping, searches andsurveillance. The changes made on the Foreign IntelligenceSurveillance Act of 1978 by the act are some of the mostcontroversial provisions4.
Proponentsof the Patriot Act of 2001 have argued that in the wake of increasedinternational terrorism, there is a need to remove barriers thatdeter the American law enforcement agents from conductingsurveillance on suspected individuals and parties. The provision ofthe act ensures that the institution of surveillance is quick andeffective. Before the enactment of the act, surveillance and searchesof individual and agents within and outside the United States wasdifficult and required an executive order or court order5.These restrictions limited the collection of information and thespeed in which the federal agencies could deal with possible attacks.The patriot act of 2001 also incorporated laws that allowed thewiretapping technologies in the collection of foreign intelligence.Proponents of the act argue that this allows the use of new andmodern technologies in intelligence gathering. For example, theprovisions allow the gathering of intelligent information withoutalerting the suspected criminal. Also, by allowing the use of moderntechnologies the federal agencies can be able to intervene beforeterrorism attack are executed by monitoring the activities of foreignand domestic suspected organizations6.
However,there are some cons associated with the patriot act. Based onrational assessment, opponent of the act’s provisions have stronglyargued against the law. The sweeping powers of the federal agenciesto legally conduct surveillance both domestic and foreign are a majorthreat to privacy, a universal and fundamental human right. Theprovision that allows surveillance of suspected individuals andgroups is loose enough for the government to label any group aterrorist group in order to gather private information. This iscontrary to the provisions of the original Foreign IntelligenceSurveillance Act of 1978 which restricted surveillance and searches.The provisions also allows the law enforcement agencies rovingwiretapping. This provision allows the surveillance and collection ofsuspected individual and agencies wherever they go without seeking asurveillance warrant after change of location. It has also beenargued that the patriot act was a despite move after the September 11attack7.
Bazan,Elizabeth. The: A Brief Overview of SelectedIssues,CRS Report RL34279, December 14, 2007.
ElizabethB. Bazan. The: Overview and Modifications,ISBN 1604561513, Nova Publishers, 2008.
Gina,Marie Stevens. Privacy:an overview of federal statutes governing wiretapping and electroniceavesdropping,CRS report for Congress, 98-326. 2009.
Gouvin,Eric J. “Bringing Out the Big Guns: The USA PATRIOT Act, MoneyLaundering and the War on Terrorism”.BaylorLaw Review55 (2003): 955.
Wong,Kam C. “The making of the USA PATRIOT Act I: Legislative Processand Dynamics”. InternationalJournalof the Sociology of Law34.3 (2006): 179–219.
1 Elizabeth B. Bazan. The : Overview and Modifications, ISBN 1604561513, Nova Publishers, 2008.
2 Gina, Marie Stevens. Privacy: an overview of federal statutes governing wiretapping and electronic eavesdropping, CRS report for Congress, 98-326. 2009.
3 Elizabeth B. Bazan. The : Overview and Modifications, ISBN 1604561513, Nova Publishers, 2008.
4 Gouvin, Eric J. Bringing Out the Big Guns: The USA PATRIOT Act, Money Laundering and the War on Terrorism. Baylor Law Review 55 (2003): 955.
6 Wong, Kam C. The making of the USA PATRIOT Act I: Legislative Process and Dynamics. International Journal of the Sociology of Law 34.3 (2006): 179–219.
7 Wong, Kam C. The making of the USA PATRIOT Act I: Legislative Process and Dynamics. International Journal of the Sociology of Law 34.3 (2006): 179–219.