What Are FISA Warrants?

There's been a lot of media coverage recently regarding FISA warrants and the FISA Court. What are these, and why should they be of interest to Americans?

The acronym FISA refers to the Foreign Intelligence Surveillance Act of 1978. That law established the FISA Court and laid out rules for surveillance of people suspected of spying on our country or of terrorism-related activities against the U.S.

The court is comprised of 11 federal judges chosen by the U.S. Supreme Court chief justice for seven-year terms. The court meets secretly to review requests by the federal government (generally approved by the U.S. attorney general) for these FISA warrants.

What Can a FISA Warrant Be Used to Do?

Only a "foreign power or an agent of a foreign power" can be subject to a FISA warrant. American citizens can be suspected of being foreign agents if there's evidence they're working on behalf of another country against U.S. interests.

Actions taken under the warrants often involve electronic surveillance (such as wiretapping), but can include other investigative techniques such as searches. These are conducted by U.S. intelligence and federal law enforcement agencies within the U.S. A FISA warrant is good for no more than 12 months.

In its 40-year history, FISA Court judges have rarely denied requests for warrants. There is an appeals process if the judge to whom the request is presented denies it.

Can Those Who Aren't Foreign Agents Get Caught Up in a FISA Investigation?

The FISA Court has rules in place to minimize the risk of innocent people being surveilled. No targeted surveillance is allowed unless there's evidence that a foreign power or agent is involved is espionage or terrorism. There also has to be evidence that the phone number, email address or facility under surveillance is being used for one of these purposes.

The government is only allowed to collect "bulk information" that's relevant to the investigation. However, U.S. citizens who aren't agents of a foreign power could end up being caught on wiretaps or other surveillance.

People who find themselves under investigation by the U.S. government or charged with a crime based on information gathered via a FISA warrant should seek guidance immediately from a criminal defense attorney experienced with these cases.