In 1978 Congress enacted and President Carter signed into law the Foreign Intelligence Surveillance Act of 1978 [FISA]. The Act established the exclusive means by which foreign intelligence surveillance within the United States could be conducted. It was a completion of the statutory schemata governing domestic electronic eavesdropping created via Title III of the Omnibus Crime Control Act of 1968 [hereinafter Title III]. Congress enacted the FISA to clarify and delineate the proper interface between the dictates of the fourth amendment and foreign intelligence eavesdropping within the country. It was a legislative response to a void in this area of the law.
Since enactment, the post-Watergate atmosphere which spawned impetus for FISA has given way to a mood more receptive to intelligence agencies and their activities. Further, since the statute provides for mandatory periodic Congressional scrutiny of its implementation and ramifications, it is important to review and analyze this Act.
This note will explore the constitutional background of the executive practice of conducting warrantless electronic foreign intelligence surveillance, and the legislative history of the Act. It will then examine the more important provisions of the statute, while concurrently comparing these to comparable terms of Title III . Constitutional issues or problems raised by the Act and its provisions will then be discussed. Finally, possible amendments to the Act will be explored.
Kim L. Kelley,
The Foreign Intelligence Surveillance Act of 1978,
13 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol13/iss3/2