United States Foreign Intelligence Surveillance Court facts for kids

Quick facts for kids United States Foreign Intelligence Surveillance Court
(F.I.S.C.)
Location	E. Barrett Prettyman U.S. Courthouse (Washington, D.C.)
Appeals to	United States Foreign Intelligence Surveillance Court of Review
Established	October 25, 1978
Authority	Article III court
Created by	Foreign Intelligence Surveillance Act 50 U.S.C. §§ 1803–1805
Composition method	Chief Justice appointment
Judges	11
Judge term length	7 years
Presiding Judge	Anthony Trenga

The United States Foreign Intelligence Surveillance Court (FISC), also called the FISA Court, is a U.S. federal court established under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants against foreign spies inside the United States by federal law enforcement and intelligence agencies.

FISA was created by the U.S. Congress based on the recommendations of the Senate's Church Committee, which was convened in 1975 to investigate illicit activities and civil rights abuses by the federal intelligence community. Pursuant to the law, the FISC reviews requests to conduct physical and electronic surveillance within the U.S. concerning "foreign intelligence information" between "foreign powers" and "agents of foreign powers" suspected of espionage or terrorism; such requests are made most often by the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI).

From its opening in 1978 until 2009, the court was housed on the sixth floor of the Robert F. Kennedy Department of Justice Building; since 2009, it has been relocated to the E. Barrett Prettyman United States Courthouse in Washington, D.C.

Warrants

Each application for one of these surveillance warrants (called a FISA warrant) is made before an individual judge of the court. The court may allow third parties to submit briefs as amici curiae. When the U.S. Attorney General determines that an emergency exists, the Attorney General may authorize the emergency employment of electronic surveillance before obtaining the necessary authorization from the FISC, if the Attorney General or their designee notifies a judge of the court at the time of authorization and applies for a warrant as soon as practicable but not more than seven days after authorization of such surveillance, as required by 50 U.S.C. § 1805.

If an application is denied by one judge of the court, the federal government is not allowed to make the same application to a different judge of the court but may appeal to the United States Foreign Intelligence Surveillance Court of Review. Such appeals are rare: the first appeal from the FISC to the Court of Review was made in 2002 (In re Sealed Case No. 02-001), 24 years after the founding of the court.

FISA warrant requests are rarely denied. During the 25 years from 1979 to 2004, 18,742 warrants were granted, while only four were rejected. Fewer than 200 requests had to be modified before being accepted, almost all of them in 2003 and 2004. The four rejected requests were all from 2003, and all four were partially granted after being submitted for reconsideration by the government. Of the requests that had to be modified, few were before the year 2000. During the next eight years, from 2004 to 2012, there were over 15,100 additional warrants granted, and another seven being rejected. Over the entire 33-year period, the FISA court granted 33,942 warrants, with only 12 denials – a rejection rate of 0.03 percent of the total requests. This does not include the number of warrants that were modified by the FISA court.

Notes:

On May 17, 2002, the court rebuffed Attorney General John Ashcroft, releasing an opinion that alleged that the FBI and Justice Department officials had "supplied erroneous information to the court" in more than 75 applications for search warrants and wiretaps, including one signed by FBI Director Louis J. Freeh. Whether this rejection was related to the court starting to require modification of significantly more requests in 2003 is unknown.

On December 16, 2005, The New York Times reported that the Bush administration had been conducting surveillance against U.S. citizens without specific approval from the FISA court for each case since 2002. On December 20, 2005, Judge James Robertson resigned his position with the court, apparently in protest of the secret surveillance, and later, in the wake of the Snowden leaks of 2013, criticized the court-sanctioned expansion of the scope of government surveillance and its being allowed to craft a secret body of law. The government's apparent circumvention of the court started prior to the increase in court-ordered modifications to warrant requests.

In 2011, the Obama administration secretly won permission from the Foreign Intelligence Surveillance Court to reverse restrictions on the National Security Agency's use of intercepted phone calls and e-mails, permitting the agency to search deliberately for Americans' communications in its massive databases. The searches take place under a surveillance program Congress authorized in 2008, under Section 702 of the Foreign Intelligence Surveillance Amendment Act (Section 1881a et seq in FISA). Under that law, the target must be a foreigner "reasonably believed" to be outside the United States, and the court must approve the targeting procedures in an order good for one year. But a warrant for each target would thus no longer be required. That means that communications with Americans could be picked up without a court first determining that there is probable cause that the people they were talking to were terrorists, spies or "foreign powers". The FISC also extended the length of time that the NSA is allowed to retain intercepted U.S. communications from five years to six years with an extension possible for foreign intelligence or counterintelligence purposes. Both measures were done without public debate or any specific authority from Congress.

Secrecy

Because of the sensitive nature of its business, the court is a "secret court" – its hearings are closed to the public. While records of the proceedings are kept, they also are unavailable to the public, although copies of some records with classified information redacted have been made public. Due to the classified nature of its proceedings, usually only attorneys licensed to practice in front of the US government are permitted to appear before the court. Because of the nature of the matters heard before it, court hearings may need to take place at any time of day or night, weekdays or weekends; thus, at least one judge must be "on call" at all times to hear evidence and decide whether or not to issue a warrant.

A heavily redacted version of a 2008 appeal by Yahoo! of an order issued with respect to NSA's PRISM program had been published for the edification of other potential appellants. The identity of the appellant was declassified in June 2013.

Composition

When the court was founded, it was composed of seven federal district judges appointed by the Chief Justice of the United States, each serving a seven-year term, with one judge being appointed each year. In 2001, the USA PATRIOT Act expanded the court from seven to eleven judges, and required that at least three of the Court's judges live within twenty miles (32 km) of the District of Columbia. No judge may be appointed to this court more than once, and no judge may be appointed to both the Court of Review and the FISA court.

Chief Justice John Roberts has appointed all of the current judges.

Membership

(as of 19 May  2024 (2024 -05-19)^[update])

Former members

Note that the start dates of service for some judges conflict among sources.

Seat succession

See also

• Commission nationale de contrôle des interceptions de sécurité
• In re: Sealed Case No. 02-001
• NSA call database
• NSA warrantless surveillance (2001–07)
• Operation CHAOS