Foreign Intelligence Surveillance Act

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The Foreign Intelligence Surveillance Act ( FISA , German  Surveillance Act in the Foreign Intelligence ) is a from the United States Congress passed in 1978 law that the foreign intelligence and counterintelligence of the United States governs. Different standards are applied to the activities of the intelligence services outside the territory of the USA on the one hand and the surveillance of US citizens and foreigners resident on the territory of the United States on the other.

Legal position

According to the fourth Amendment of the Constitution of the United States are arrests, searches of persons and homes and the seizure of property only due by oath confirmed or affidavit probable cause ( reasonable suspicion permitted). This clause applies to nationals of the United States and to foreigners residing within the borders.

inland

FISA regulates the circumstances under which the Attorney General and his subordinate FBI can obtain a search warrant against persons suspected of spying on the United States for a foreign power against the United States. In 1978 it was originally only about electronic surveillance measures, in particular telephone surveillance and acoustic surveillance of living spaces , since 1994 the FISA has also regulated the search of homes and people.

For this purpose, the United States Foreign Intelligence Surveillance Court (FISC) was created with FISA , a court that meets exclusively to discuss FISA cases and has to order surveillance or searches. In the event of imminent danger , the FISC must be informed immediately and can subsequently approve the measure within one week.

foreign countries

The surveillance of telecommunications outside the US by the intelligence services does not require individual approval. States and international organizations, as well as their citizens and relatives, are put on a list once a year, which is drawn up by the FISC. All states except the Five Eyes are regularly on this list . The specific monitoring can be ordered by the Director of National Intelligence or the Attorney General for a period of up to one year, if it is reasonably assumed that the target person is abroad, even if he is an American citizen. Compliance with this rule is assured to the FISC, the declarations of 2009 became public. The secret service committees of both Houses of Congress ( Select Committee on Intelligence in the Senate and Permanent Select Committee on Intelligence in the House of Representatives ) must be reported on the lawful implementation .

interpretation

In 2013, the New York Times disclosed that the FISC, following the expansion of the law in 2008, in several secret decisions authorized the National Security Agency to save connection data without further requirements if the data collected can only be accessed in compliance with the formal requirements of the law he follows. It also interpreted the scope of the law broadly so that not only espionage and terrorism fall under FISA, but also the trafficking and distribution of material related to nuclear weapons and cyberattacks .

This broad interpretation relies on interpreting the word relevant to national security in a different way than previously defined in the criminal justice field by the United States Supreme Court . Accordingly, the complete databases can be requested so that they can be searched in individual cases.

history

The FISA and the FISC were created in 1978 in response to the investigation of the Church Committee , a committee of inquiry of the US Senate in the years 1975/76 into the partly illegal activities of the US secret services. The authorization to eavesdrop abroad initially only concerned foreign nationals. In 1994, FISA was expanded to include physical searches of rooms and people.

As part of the PATRIOT Act , FISA was amended in October 2001 under the impact of the terrorist attacks on September 11, 2001 . Since then, the law has not only covered cases in which counter-espionage is “the purpose” of the surveillance or search, but also those in which it is merely “a major purpose” of the measure. In late 2005, the New York Times revealed that, despite the softening and increased powers, the George W. Bush administration had systematically broken the law and wiretapped thousands of Americans' communications with the United States.

In 2007 the foreign policy clause in the Protect America Act was relaxed. In future, all persons - including Americans - could legally be wiretapped if it could be reasonably assumed that they were abroad. The federal government presented this as an adjustment to the changed possibilities of electronic communication: Foreigners and Americans abroad use e-mail accounts with US providers, international telephone calls and Internet connections are routed through the USA even if the start and end point is abroad communication between Americans and foreigners is indistinguishable in packet-switched networks . Civil rights groups considered the change to be a full release of surveillance. The law had a sunset clause and was automatically repealed in February 2008.

In July 2008, after long debates, Congress approved an amendment to FISA, in which the regulations from the previous year were adopted until 2012. In addition, illegally acting government agencies and employees, as well as the telecommunications companies that had given them free access to the network infrastructure, were granted subsequent indemnity . In addition, the destruction of legally prescribed logs was subsequently permitted and the period for subsequent approval in the event of danger in arrears was increased from 48 hours to one week. At the same time, Congress made it clear that communications by Americans abroad can only be monitored on the basis of a law and that the US President does not invoke any extended powers in the event of a state of war or a general immunity of the executive branch from interference by the judiciary ( executive privilege ) allowed to circumvent the requirements of the law. Another five-year extension took place at the end of 2012. [obsolete] The extension was delayed several months by Democratic Senator Ron Wyden from Oregon because he criticized the application of the law. He announced that the United States Foreign Intelligence Surveillance Court has classified the application of the law as unlawful in at least one procedure that has previously been classified as secret and is calling for stronger regulations to protect civil rights.

The FISA Amendment Act of 2008 goes back, among other things, to a suggestion from the NSA that reached the limits of the FISC process as part of the Stellar Wind program. The NSA argued that FISA should only ever protect the rights of US citizens, so it would be inappropriate for them to seek FISC authorization to monitor foreign targets that mostly communicate with foreigners. The background was that due to the dominance of American companies and service providers, foreign target persons often used services on US soil on the Internet. The 1975 FISA could not predict these conditions.

In late 2012 and early 2013, the Supreme Court of the United States repeatedly dismissed lawsuits against FISA as inadmissible because plaintiffs such as Amnesty International , Human Rights Watch and PEN USA could not prove that their communications were being monitored. The abstract danger was not enough for the court to conduct a legal review. The court relied on statements by the US Department of Justice, according to which, firstly, only foreign communications would be intercepted without court approval and, secondly, in a criminal case, the accused would be informed if evidence came from interception measures so that it could then be examined by the court. In the course of the global surveillance and espionage affair based on documents from Edward Snowden , it became known that both statements are incorrect. However, the Justice Department feels under no obligation to report this misinformation to the court.

literature

  • James Bamford : NSA. America's most secret intelligence agency. Orell Füssli, Zurich 1986, ISBN 3-280-01670-3 . (Translation of the English original edition The Puzzle Palace. Inside the National Security Agency. Penguin, London 1983, ISBN 0-14-023116-1 ). [Historical description of the legal basis from 1912 to 1981 and assessment based on practice]

Web links

Wikisource: en: Foreign Intelligence Surveillance Act of 1978  - Sources and full texts
Wikisource: en: Protect America Act of 2007  - Sources and full texts
Wikisource: en: FISA Amendments Act of 2008  - Sources and full texts

Individual evidence

  1. ↑ National Security Agency: Procedures Used by the NSA for Targeting Non-United-States Persons (PDF; 875 kB), June 2009
  2. ^ Washington Post: Court gave NSA broad leeway in surveillance, documents show , June 30, 2014
  3. ↑ National Security Agency: Minimization Procedures Used by the NSA in Connection with Acquisitions of Foreign Intelligence (PDF; 814 kB), June 2009
  4. ↑ Eric Lichtblau: In Secret, Court Vastly Broadens Powers of NSA , New York Times, July 6, 2013
  5. ^ Wall Street Journal: Secret Court's Redefinition of 'Relevant' Empowered Vast NSA Data-Gathering , July 8, 2013
  6. ↑ heise.de: US Congress extends eavesdropping law for another five years , January 2, 2013
  7. ↑ Washington Post: House votes to renew controversial surveillance law , September 13, 2012
  8. ^ National Security Agency, Office of the Inspector General: Review of the President's Surveillance Program (PSP) - Working Draft , March 24, 2009, p. 46f.
  9. ↑ SCOTUS: Clapper vs. Amnesty International (PDF; 253 kB), No. 11-1025. February 26, 2013
  10. ↑ Trevor Timm: Everyone should know just how much the government song to defend the NSA . In: The Guardian, May 17, 2014