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What's FISA? Here's what you need to known about the surveillance law making headlines


Washington loves acronyms, and these days, no acronym is talked about more than FISA, the surveillance law making headlines across the globe.

Between the House Intelligence Committee's Republican memo and the various Russia investigations, FISA has become a fixture in the news. Here's what you need to know about the Foreign Intelligence Surveillance Act, one of the most important bits of the "alphabet soup" that is the U.S. government:

It was signed by President Jimmy Carter in 1978

FISA was the result of several Congressional committee investigations into U.S. intelligence activities following President Richard Nixon's use of government officials to spy on political opponents. It was meant to provide oversight on the government's domestic surveillance activities.

How it works

Let's say you are an FBI agent who has reason to believe a U.S. person may be a spying for a foreign government or engaged in terrorism. In order to engage in surveillance on that person, you would need to get a warrant. To get that warrant, you would need to go to a secret court set up by the FISA laws.

The Foreign Intelligence Surveillance Court, or FISC, is where law enforcement agencies go to get the warrant they need to begin to perform electronic surveillance on a target. The court is made up of 11 justices selected by the Chief Justice of the Supreme Court who meet in secret to review their cases.

There are two ways law enforcement officials can get a warrant. In criminal cases, they have to prove that there is probable cause that the individual is or was engaged in some kind of criminal activity. In cases where electronic surveillance is required, the government is required to show that the individual may be spying for a foreign country or organization. The second threshold is comparatively less stringent and easier to meet than the first based on national security concerns. But that doesn't mean its a cakewalk.

Getting a warrant

Before you, as a hypothetical FBI agent can get that much-needed warrant, you need to go through a lengthy chain of command. After gathering evidence, you would need to write up an affidavit explaining your evidence and put together an application, You'd then need the OK and signature of the Special Agent in Charge of your field office, who would then send the materials over the FBI headquarters. The application then goes to FBI headquarters for approval.

But wait! There's more.

If HQ gives your application the ok, it will be sent off to the Department of Justice's National Security Division where it will be scrutinized by lawyers. If the lawyers sign off, only then will your application even be seen by FISC, which will then determine if it has met the requirements.

Now that you have a warrant...

Generally, you get 90 days to engage in surveillance on your target if they are a US person and 120 days if they are a non-US person.

It is generally believed that the FISC has approved an overwhelming majority of of FISA warrants, but that doesn't mean the court is just a "rubber stamp." It's specifically designed to be rigorous, as former FBI counterintelligence agent Asha Rangappa noted in a piece for Just Security.

"In short, the FISA warrant process is designed to protect against the very abuse of power that the President has accused his predecessor of exercising. You could even say that FISA applications go through an “extreme vetting” process before being granted – something that the Trump administration ought to support," wrote Rangappa in March.

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