107-108 ; the Homeland Security Act of 2002, P.L. In the 109 th Congress, two measures, the USA PATRIOT Improvement and Reauthorization Act of 2005, P.L. 109-177 , and the USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006, P.L. 109-178 , made significant changes to FISA. On August 22, 2002, the unclassified opinion was released to the public by Senator Leahy, Senator Grassley and Senator Specter. The FISC's May 17 th memorandum opinion and order were not appealed directly. This report will provide background on the Foreign Intelligence Surveillance Act, discuss its statutory framework, and review these two decisions. As the provisions of E.O. § 1801 et seq. This measure seeks to strike a balance between national security needs in the context of foreign intelligence gathering and privacy rights. Creation of the U.S. Foreign Intelligence Surveillance Court and the U.S. Foreign Intelligence Court of Review

FISA establishes two special courts, the U.S. Foreign Intelligence Surveillance Court (FISC) and the U.S. Foreign Intelligence Surveillance Court of Review (Court of Review), comprised of federal judges to address applications for court orders authorizing such electronic surveillance, physical searches, installation and use of pen registers and trap and trace devices, and production of tangible things. Section 1804(a) sets out what must be included in the application:
(1) the identity of the Federal officer making the application;
(2) the authority conferred on the Attorney General by the President of the United States and the approval of the Attorney General to make the application;
(3) the identity, if known, or a description of the specific target of the electronic surveillance;
(4) a statement of the facts and circumstances relied upon by the applicant to justify his belief that—
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;
(5) a statement of the proposed minimization procedures;
(6) a detailed description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance;
(7) a certification or certifications by the Assistant to the President for National Security Affairs or an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate —
(A) that the certifying official deems the information sought to be foreign intelligence information;
(B) that a significant purpose of the surveillance is to obtain foreign intelligence information;
(C) that such information cannot reasonably be obtained by normal investigative techniques;
(D) that designates the type of foreign intelligence information being sought according to the categories described in 1801(e) of this title; and
(E) including a statement of the basis for the certification that—
(i) the information sought is the type of foreign intelligence information designated; and
(ii) such information cannot reasonably be obtained by normal investigative techniques;
(8) a statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance;
(9) a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application;
(10) a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the intelligence gathering is such that the approval of the use of electronic surveillance under this subchapter should not automatically terminate when the described type of information has first been obtained, a description of facts supporting the belief that additional information of the same type will be obtained thereafter; and
(11) whenever more that one electronic, mechanical or other surveillance device is to be used with respect to a particular proposed electronic surveillance, the coverage of the devices involved and what minimization procedures apply to information acquired by each device. 2338 , the Intelligence Authorization Act for Fiscal Year 2002 (which became P.L. 107-56 , and modified further by P.L. Although denominated "access to certain business records for foreign intelligence and international terrorism investigations," the reach of Section 1861, as amended by the USA PATRIOT Act, P.L. 108-458 , the Intelligence Reform and Terrorism Prevention Act of 2004, created additional semiannual reporting requirements under FISA. Published Decisions of the FISC and the U.S. Foreign Intelligence Surveillance Court of Review

		The FISC Decision

			Summary

In its May 17, 2002, decision, the FISC considered a government motion for the court "to vacate the minimization and 'wall' procedures in all cases now or ever before the Court, including this Court's adoption of the Attorney General's July 1995 intelligence sharing procedures, which are not consistent with new intelligence sharing procedures submitted for approval with this motion." In a memorandum and order written by the then Presiding Judge, U.S. District Court Judge Royce Lamberth, issued on the last day of his tenure on the FISC, and concurred in by all of the judges then sitting on the FISC, the FISC granted the Department of Justice (DOJ) motion with significant modifications to section II.B. In its first decision ever, the Court of Review, in a lengthy per curiam opinion issued on November 18, 2002, reversed and remanded the FISC orders. 107-296 , amended FISA, 50 U.S.C.
The Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1801 et seq., as passed in 1978, provided a statutory framework for the use of electronic surveillance in the context of foreign intelligence gathering. In so doing, Congress sought to strike a delicate balance between national security interests and personal privacy rights. Subsequent legislation expanded federal laws dealing with foreign intelligence gathering to address physical searches, pen registers and trap and trace devices, and access to certain business records. The USA PATRIOT Act of 2001, P.L. 107-56, made significant changes to some of these provisions. Further amendments were included in the Intelligence Authorization Act for Fiscal Year 2002, P.L. 107-108, and the Homeland Security Act of 2002, P.L. 107-296, the Intelligence Reform and Terrorism Prevention Act, P.L. 108-458, the USA PATRIOT Improvement and Reauthorization Act of 2005, P.L. 109-177, and the USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006, P.L. 109-178. In addressing international terrorism or espionage, the same factual situation may be the focus of both criminal investigations and foreign intelligence collection efforts. Some of the changes in FISA under these public laws are intended, in part, to facilitate information sharing between law enforcement and intelligence elements. In its Final Report, the 9/11 Commission noted that the removal of the pre-9/11 "wall" between intelligence and law enforcement "has opened up new opportunities for cooperative action within the FBI."
On May 17, 2002, the U.S. Foreign Intelligence Surveillance Court (FISC) issued a memorandum opinion and order written by the then Presiding Judge of the court, and concurred in by all of the other judges then on the court. The unclassified opinion and order were provided to the Senate Judiciary Committee in response to a letter from Senator Leahy, Senator Grassley, and Senator Specter, who released them to the public on August 22, 2002. In its decision, the FISC considered a motion by the U.S. Department of Justice "to vacate the minimization and 'wall' procedures in all cases now or ever before the Court, including this Court's adoption of the Attorney General's July 1995 intelligence sharing procedures, which are not consistent with new intelligence sharing procedures submitted for approval with this motion." The FISC granted the Department's motion, but modified part of what it saw as proposed minimization procedures. This decision was not appealed directly, but the Department of Justice did seek review of an FISC order granting as modified an application for electronic surveillance of an agent of a foreign power and for an FISC order renewing that surveillance, both subject to restrictions based on the May 17 memorandum opinion and order by the FISC. The U.S. Foreign Intelligence Surveillance Court of Review reversed and remanded the FISC orders on November 18, 2002. This report will examine the detailed statutory structure provided by FISA and related provisions of E.O. 12333, and will discuss the decisions of the U.S. Foreign Intelligence Surveillance Court and the U.S. Foreign Intelligence Surveillance Court of Review. It will be updated as subsequent changes require.