FISA (Foreign Intelligence Surveillance Act): Overview

Written by Mike Boutwell

September 8, 2022


FISA: Foreign Intelligence Surveillance Act was a response by Congress against different threats to the national security of the US. It resulted from further investigations in response to several surveillance activities in the name of the country’s national security. This act, hence, was enacted in 1978. It is through FISA that a check on any foreign surveillance is done while keeping and maintaining the necessary secrecy, which further keeps a statement on any potential national threat. 

Origin of FISA:

Before 1978 there used to be many threats that already existed; however, they were not as prominent as the current threats. Before the enactment of this act, Higher-ups and other officials held the authority to conduct surveillance checks on US citizens even without warrants. However, in 1972, the Supreme Court decided to legalize warrantless surveillance after the famous ‘Keith’ case. Then, the court revisited giving foreign intelligence the right to conduct warrantless surveillance. Later, even more infamous cases such as the ‘Watergate scandal’ paved the way for Congress to take action to come up with standard guidelines that clearly described the intention and legitimacy of any electronic surveillance done for national security. Hence, this led to the development of FISA, which President Carter signed. 

Use of FISA:

There were only two circumstances under which electronic surveillance could be conducted in the US lawfully against foreign counterintelligence threats. These were:

  1. If FISC issues an order
  2. In any emergency 

FISA authority expansion:

Initially, in 1998, electronic as well as physical searches were expanded by Congress. It stated that the target of any such investigation should be foreign, and it should be focused on gathering any foreign information. However, in 1998, Congress further permitted it to use pen registers or trace devices to investigate foreign threats such as terrorism. 


It is prohibited by the FISA to do surveillance of any business records of a US person. There is further guidance that any information as such collection should be shared with other concerned authorities such as federal agencies or any other partners. Moreover, there are well-defined disclosure regulations and breaching those rules can lead to criminal hearings. There is also an amendment of the ‘agent of foreign power’ definition to the ‘lone wolf’ provision. Lone wolf means when a person who is not a citizen of the US is involved in international crimes such as terrorism. In such a case, under FISA, that individual is referred to as an agent of a foreign power. 

Ever since the enactment of FISA, there has been a very progressive change in the country’s development and success against the fight from foreign threats or any other targeted intelligence information gathering attack on the US by any other government. With several amendments made through time, FISA has had a historical impact on the fight against many criminal investigations, leading to better record keeping and prosecutions of such threats. 

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