The Revamped FISA: Striking a Better Balance Between the Government's Need to Protect Itself and the 4th Amendment
The investigations of the 9/11 terrorist attacks highlighted a series of lapses in intelligence-sharing within the federal government regarding terrorist operations. One area closely examined by Congress,' the judiciary, and many legal and political commentators is the appropriate scope of intelligence collection within the United States "concerning foreign threats to the nation's security" ("foreign intelligence"). Domestic intelligence collection is a particularly complex sphere of national security as gathering intelligence on American soil requires balancing the privacy rights of individuals guaranteed by the Fourth Amendment against the nation's need to protect itself.
The Foreign Intelligence Surveillance Act of 1978 ("FISA") governs the conduct of electronic surveillance and physical searches carried out for foreign intelligence purposes within the United States. FISA establishes procedures for collecting foreign intelligence information, which are parallel to, and independent of, the conventional law enforcement channels used to secure judicial approval for searches and electronic surveillance. Under FISA, federal investigators submit applications for foreign intelligence surveillance to a secret court that exists for the sole purpose of reviewing government requests to gather information pursuant to the statute.
Prior to 2002, the courts (including the FISA court) only authorized searches and/or surveillance under FISA where collecting foreign intelligence information was the "primary purpose" of the investigation. This primary purpose test was intended to facilitate the collection of foreign intelligence and limit the use of FISA as an end-run around obtaining a normal search warrant. Enforcing the primary purpose test required courts to discern whether an investigation was conducted primarily for intelligence collection or for law enforcement purposes. Repeated judicial inquiries into the motives behind FISA investigations eventually led the Justice Department to establish formal procedures for handling FISA information to ensure that such investigations were not being used to pursue criminal targets."