Foreign Intelligence Surveillance Act

When signed into law in 1978, the Foreign Intelligence Surveillance Act (FISA) was seen as a way to impose limits on what, in the immediate aftermath of the Watergate scandal, was the largely unchecked ability of the federal government to spy on its own citizens. And yet in the early years of the 21st century, in the wake of the terrorist attacks of September 11, 2001, FISA would be expanded and used to surveil the activities of millions of Americans without their knowledge.

The law, in its multiple iterations, serves as a fulcrum between the privacy expectations of citizens and the national security interests of the federal government.

Spying practices in the 20th century

As the United States emerged from World War II and entered the Cold War, Pres. Harry Truman determined that it was necessary to monitor communications U.S. citizens were having with foreign entities, and Project Shamrock was born. Its intent was simple—and arguably benign: to copy and read telegrams between Americans and international groups to look for potential conspiracies. The program ran from 1947 to the mid-1970s, and during that time as many as 150,000 telegrams a month were being read.

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The late 1960s saw the creation by the National Security Agency (NSA) of Project Minaret, an offshoot of Shamrock that was focused on thousands of Americans who had been identified by the federal government as opponents of the Vietnam War, among other perceived transgressions. Some of those whose communications were monitored by the NSA without a warrant were Martin Luther King, Jr., Muhammad Ali, and, in a bit of irony, U.S. Sen. Frank Church, who would chair the committee that would lead to the creation of FISA.

The creation of FISA

FISA was born out of the work of what became known as the Church Committee in 1975 and 1976. More officially known as the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, the group of senators conducted a meticulous and bipartisan investigation into intelligence practices conducted by the U.S. government. The work of the Church Committee was seen as necessary in the wake of the Watergate scandal that led to the resignation of Pres. Richard Nixon. In addition to the surveillance of the likes of King, Ali, Church, and other politicians and journalists, the intelligence community’s activities included:

• electronic surveillance that included communications of U.S. citizens, without warrants
• assassination plots against foreign leaders conducted by the Central Intelligence Agency
• programs that led to the opening of mail of U.S. citizens by the CIA and Federal Bureau of Investigation
• surreptitious drug testing of government workers by the CIA
• reading communications between citizens and foreign groups in the style of Project Shamrock

The committee’s goal was deceptively simple: ensure that U.S. intelligence activities aligned with U.S. law and kept the country safe. In the end the Church Committee produced a report some 2,700 pages in length that was critical of the actions of both Democratic and Republican administrations, bringing to light the operations of Shamrock and Minaret as well as other covert domestic operations including MK-ULTRA and COINTELPRO. It also offered up solutions, including creating a congressional intelligence oversight committee, establishing guidelines for actions taken by the president and attorney general, and ultimately drafting what would become FISA. In addition, Pres. Gerald Ford signed an executive order banning foreign assassinations, and the current 10-year term for the FBI director was established. Of his committee’s work, Church said on Meet the Press in 1975:

“Now, why is this investigation important? I’ll tell you why…I know the capacity that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision so that we never cross over that abyss. That is the abyss from which there is no return.”

When Pres. Jimmy Carter signed FISA into law in 1978, he said he hoped the law would be successful in balancing “adequate intelligence to guarantee our Nation’s security on the one hand, and the preservation of basic human rights on the other.”

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How 9/11 changed FISA

One of the core principles of FISA was the use of governmental checks and balances to avoid a replication of the irregularities the Church Committee documented. To that end FISA courts were created to which the intelligence community would make its case for needed warrants, with congressional committees offering additional oversight.

And yet, like so many things in American life, much about FISA changed after the attacks of September 11, 2001. In the wake of the intelligence failures that led to the worst terrorist attack on U.S. soil and fueled by a need to protect the homeland from further attacks, the government powers outlined in FISA were significantly expanded. Congress quickly passed the USA PATRIOT Act, which significantly but temporarily expanded the search and surveillance powers of the FBI, and Pres. George W. Bush implemented the Terror Surveillance Program. In 2005 it was revealed that as part of that program, the U.S. government was listening in to communications involving Americans who were thought to be communicating with overseas terrorists. In other words, a Project Shamrock for the 21st century.

In 2008 Congress passed an expansion of FISA that included what would become the highly controversial Section 702 provisions. Section 702 allowed the government to sweep up communications of foreign nationals without first seeking a warrant to do so. The controversy arose when it became clear that the communications of Americans were part of “incidental collection.” That is, if a foreign national’s communications are seized and those communications happen to be with a U.S. citizen, then the citizen’s communications are “incidentally collected.” To further complicate matters, the FISA court system, meant to serve as a check on executive power, served more as a rubber stamp. In 2011, of the more than 1,500 warrant requests that came before the court, none were denied.

The Snowden backlash

The controversy over unchecked government surveillance exploded in 2013 when Edward Snowden, a former contractor at the National Security Agency, leaked documents to The Guardian and The Washington Post that included a court order that compelled telecommunications company Verizon to turn over metadata (such as numbers dialed and duration of calls) for millions of its subscribers. Snowden also disclosed the existence of PRISM, a data-mining program that reportedly gave the NSA and the FBI as well as British intelligence agencies “direct access” to the servers of Internet giants including Google, Facebook, Microsoft, and Apple.

While barriers were in place to seemingly limit the collection of data on U.S. citizens, the reality was that neither the FISA courts nor the executive branch were offering much oversight. The potential for the use of FISA powers for political purposes became a lightning rod when it was revealed that in October 2016 FISA warrants were issued to monitor the communications of Carter Page, a foreign policy adviser to then-presidential candidate Donald Trump, who was accused of having ties to the Russians. A government investigation ultimately determined the wiretapping of Page was unjustified, documenting significant errors committed by the FBI.

The potential for abuse uncovered in the revelations of Snowden and subsequently the Page investigation led to the passage in 2024 of the Reforming Intelligence and Securing America Act, which enacted some changes to Section 702 including requiring it to be regularly reauthorized by Congress and imposing stricter rules on the FISA courts. But half a century after Carter enacted FISA, the dilemma of how to ensure national security and preserve privacy rights endures.