Foreign Intelligence Surveillance Act (FISA) FISA

In the 1960s and early 1970s the FBI wiretapped civil rights leaders and antiwar activists, and the NSA collected copies of Americans' international telegrams, without warrants and in the name of national security. In 1972 the Supreme Court held in the Keith case that domestic security surveillance requires a warrant but left foreign intelligence open. After the Church Committee documented the abuses, Congress passed the Foreign Intelligence Surveillance Act, signed on October 25, 1978, which requires the government to get an order from the new Foreign Intelligence Surveillance Court before conducting electronic surveillance in the United States of a foreign power or its agent.

To surveil someone, the government must show probable cause that the target is a foreign power or an agent of one, and an American cannot be targeted solely for activity protected by the First Amendment. The law was expanded to cover physical searches in 1994 and business records in 1998. After the September 11 attacks, the USA PATRIOT Act allowed FISA to be used when foreign intelligence is a significant purpose rather than the primary purpose, easing coordination with criminal prosecutors. The President's secret warrantless surveillance program, revealed in December 2005, operated outside FISA until it was brought under the court in 2007, and the FISA Amendments Act of 2008 added Section 702 for collection on foreigners abroad.

Critics have long said the court approves nearly every application in one-sided proceedings, and a 2019 inspector general report found serious errors in FBI applications to surveil a former Trump campaign adviser, which led to new FBI procedures and further changes in 2024. The USA FREEDOM Act of 2015 added outside lawyers who can argue for privacy. Most of FISA is permanent, but Section 702 expires unless Congress renews it, and it lapsed on June 12, 2026. Supporters say the law balances security and liberty under judicial supervision, while critics on the left and right say its secrecy invites abuse.