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Jurisdiction of Federal Law and FISA
FISA is an example of a federal law that was enacted in 1978 and has passed through a number of amendments, ever since the terror attacks of September 11. Through the enactment of FISA, it is the intention of the congress people to effectively provide an oversight on the foreign intelligence surveillance activities.
This is while ensuring that the intelligence activities are highly secret, which is an essential element of a foreign intelligence program that can help to mitigate the various threats to the national security of the country. The oversight provided by the congress is judicial and congressional. Basing on these facts, one of the main jurisdictions of FISA is to regulate the manner which foreign intelligence is collected by American agents.
To efficiently achieve this objective, FISA created a court called FISC. This is a foreign intelligence court that has the responsibility of issuing out any foreign surveillance warrants to intelligence agencies or law enforcement organizations. The following are some of the major jurisdictions of the FISA law:
- Allows for the electronic surveillance activities by intelligence agencies.
- It also allows for physical searches.
- It allows intelligence community to use pen registers for purposes of collecting intelligence.
- It provides a legal protection for the intelligence community to have an access and look at the business records of foreigners who are under the intelligence surveillance.
Finally, it is possible to denote that FISA is a federal law, and its jurisdiction is on activities of the intelligence agencies, that are engaged in collecting foreign intelligence. It provides ways and processes that the intelligence agencies should use, when they are in the process of collecting and gathering intelligence.
Main provisions of FISA and how it works
One of the major provisions of FISA is the fact that it allows the use of electronic methods for purposes of carrying out surveillance activities. This is contained in FISA Subchapter 1 of the law. To use electronic methods for purposes of engaging in surveillance activities, the department of justice must ask for a permit from the surveillance court (FISC). However, if the target of the intelligence activity is an American citizen, more stringent measures are required before a permit is issued out by the court.
While seeking a warrant for electronic surveillance, the intelligence agency must prove that there is a probability that the target is an agent of a foreign power, and the reason for initiating the surveillance is to get foreign intelligence information.
This is a provision contained in 50 U.S.C. § 1804. Note that, while seeking a warrant from FISC, the intelligence agency do not have to demonstrate that it is imminent that the person intends to commit a crime.
Moreover, the President has the power of waiving this requirement, but for a limited period of time such as 1 year. However, these will only be possible if the intelligence community believes that the intelligent agencies will not obtain information that is belonging to a US citizen. This is contained under provisions 50 U.S.C. § 1802.
Another major provision of the FISA law is contained in subchapter II. Under this chapter, the intelligence agencies are allowed to carry out a physical search on the premises and facilities that are used by an agent of a foreign power. This will also require a permit from the FISC court. On this note, for the court to provide a warrant, that authorizes the physical search of the premises, the intelligence agency must prove the following:
- The person being targeted for the search is an agent of a foreign country.
- The premises that the intelligence community wants to search has some intelligence information.
- The building that intelligence officers want to search was used or is owned by the foreign agents.
Moreover, just like in the electronic surveillance procedure, the American President has the power to order a physical search without the authorization of the FISC. The limited period is 1 year. However, there must be proof that the information obtained will not be one that belongs to a US citizen.
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Subchapter III of the FISA law that allows for the use of a pen register and the trap and trace devices to collect intelligence information is a major provision of the act. To get a warrant for the use of these devices, the Attorney General must make an application, and provide proof that the information obtained may help in preventing a terror related activity. These devices can also be used for purposes of tracking other types of electronic communication.
Finally, allowing the intelligence community to have an access to the business records of their target is another major provision of FISA, contained in Subchapter IV of the act.
Whether constitutional rights of individuals are properly balanced
The constitutional rights of Americans are properly balanced against the activities of the government to protect the country from intelligence threats. When talking about intelligence surveillance programs and whether they balance the constitutional rights of Americans, there is a need of looking at two constitutional provisions.
These provisions are the 1st and the 4th Amendments. For instance, the 4th Amendment of the constitution protects the privacy of the citizens of America. This amendment protects Americans from unreasonable search and seizure. However, Americans will loss this right if there is a probable cause that they are engaged in prohibited activities.
Moreover, the 1st Amendment prohibits the passage of laws aimed at frustrating the freedom of speech, and this includes the privacy of a person. It is an obvious fact that surveillance laws normally lead to the breach of an individual, but this is mitigated by the establishment of the special courts such as FISC.
These courts play an oversight role, to ensure that the due process is followed when intelligence agencies use surveillance methods to collect data. For instance, before using surveillance methods on a target, a warrant must be issued by the court, and the intelligence agencies must prove a probable cause, before the warrant is issued. Through this method, the court is able to protect the constitutional rights of people.
- Bazan, Elizabeth B. “The Foreign Intelligence Surveillance Act: An Overview of Selected Issues.” LIBRARY OF CONGRESS WASHINGTON DC CONGRESSIONAL RESEARCH SERVICE, 2008.
- FISA. PUBLIC LAW 95-511 October 25, 1978
- McAdams III, James G. “Foreign Intelligence Surveillance Act (FISA): An Overview.”