What is the FISA court

USA: International surveillance powers expanded (FISA)

Dr. Axel Spies

US President Bush signed a "Protect America Act of 2007" on August 7, 2007, according to which US authorities have extended powers to intercept telephone and Internet traffic abroad.

Much of the world's telephone and Internet traffic goes through servers or network nodes in the United States. The new law contains a number of amendments to the "Foreign Intelligence Surveillance Act" (FISA), initially limited to 6 months, which also and especially have effects outside the USA. FISA is a post-Watergate law. It was established in 1978 to monitor wiretapping government adopted and concerns the interception of calls / Internet traffic abroad. The law is limited to counter-espionage and counter-terrorism. Wiretapping, e.g. for the purpose of uncovering violations of intellectual property rights, is not intended. After September 11, 2001 has been president Bush repeatedly ordered surveillance measures to bypass FISA with the argument that this authority was covered by his position as commander in chief of the armed forces. The revision of FISA comes under political pressure after the Republicans lost congressional elections last year and judicial pressure to allow interception of foreign traffic only according to the procedures provided for in FISA. FISA provides, among other things, that a special court that FISA Courtwho must approve surveillance measures, but not in a public meeting. The FISA Court consists of 11 federal judges who perform these tasks on a part-time basis. Obviously it's coming FISA Court but no longer follow the flood of wiretapping. In the last year alone he should FISA Court Over 2,000 applications from government have been given permission to listen. This is where the new law comes into play, stating that a prior court order is not required when intercepting foreign traffic. So far, some lower courts in the USA had seen this differently. The official justification of the U.S. government - in addition to "work overload" of the FISA Court - is that one does not want to give "foreign terrorists" legal protection against surveillance measures in the USA.

Foreign surveillance without a prior court order

Among other things, the law specifies the definition of "electronic surveillance", which falls under FISA. Usually this requires a court order to order electronic surveillance. A court order is not required for overseas surveillance if the authorities "reasonably" assume that the person being monitored is outside the United States ("reasonably believed to be located outside of the United States"). In this case, the law authorizes the executive, initially for one year, to intercept electronic communications (telephone calls, e-mails, etc.) without a court order. An insurance (certification) from an authorized government representative, such as the, is then sufficient Chiefs of the CIA. However, this requirement does not apply if there is imminent danger (Sec. 105 B (a)): in this case, the insurance about the necessity of wiretapping can be made up within 72 hours. However, the FISA Court after Sec. 105 C check whether the process for the selection of communication per se and the affidavit is incorrect ("reasonable procedures in place for determining that the acquisition of foreign intelligence information under this section concerns persons reasonably believed to be outside the United States" - Sec. 105 B (1) and 105 C). Besides, he has to Attorney General submit a report at recurring intervals. These powers based on the new law are initially limited to one year. It is controversial whether this authorization also intervenes when only one end of the "communication" (e.g. only the caller or only the person called) is outside the USA. The critics of the law believe that the new law will open the door to wiretapping of Americans without a judge when they are calling abroad. Others believe that it is necessary that both sender and recipient of the "communication" are abroad. According to research by the Washington Post, there are thousands of overseas surveillance.

Committed to support

The law allows that Director of National Intelligence (CIA) and the US Attorney General, Use third parties for information, network access and other support in order to carry out the surveillance of subjects located abroad. Such authorizations can be given to telecommunications providers, Internet service providers and others, who then have to support the security authorities of the executive with interception. The telecommunications provider (but not those ultimately affected by the wiretapping) can oppose the request for support FISA Court call. The new law provides that the government pays compensation for this. Their height, however, is not clearly specified. The law says rather succinctly that the compensation must be set "at the prevailing rate" (Sec. 105 B (f)). The law therefore does not grant automatic compensation, but requires an application from the party concerned and the submission of proof of costs.

Liability protection

The law stipulates that lawsuits against the party that enables wiretapping (telecommunications provider, Internet service provider) are excluded as long as the party complies with the orders of the government follows and provides information and services that are necessary for interception of electronic communications. However, this legal protection applies only to future government orders and only before the US courts. The law does not contain any provisions that grant the providers liability protection for wiretapping arrangements that have already been made, as some large telecommunications providers had unsuccessfully requested. In the USA there are currently some lawsuits pending against telecommunications providers, in which the legality of wiretapping, especially from the point of view of data protection, is on the test stand. The providers AT&T and Verizon For example, have been sued by state regulators and consumer protection groups on suspicion of U.S. government to have provided unlawful support during illegal wiretapping operations.

Negative reaction from the EU

The effects of FISA now have that European Parliament reached, where i.a. the Dutch MP In't Veld wants to initiate an investigation into whether the US rules are in line with European data protection. In particular, it is not clear where and for how long the data of Europeans that the US authorities collect on the basis of this law are stored. This could violate national data protection law in Europe. Obviously, the Europeans were not consulted in advance when the law was drafted. Presumably it will EU commission take a position on the effects of the new law - probably in connection with other cases of data transfers to the USA - e.g. the transmission of passenger data in air traffic. From a German point of view, reference should also be made to the overseas surveillance according to the TKÃœV by the German security authorities, which affects all operators with international network hubs in Germany. With international head-end monitoring, telecommunications are recorded that originate from an unknown TC connection and are intended for a foreign telephone number that is to be monitored (see Vein, MMR 1/2006, p. XV). There are close relationships and international mutual legal assistance agreements between the German and American security authorities. If the US authorities get access to the overseas surveillance, it is feared that they could also use it to intercept telephone traffic in the USA. At least one constitutional complaint is pending in Germany against the overseas surveillance. In addition, according to US law, nothing stands in the way of access to the traffic data to be kept by telecommunications providers in the course of data retention.

Source: US Press and US Senate Bill S. 1927; http://caselaw.lp.findlaw.com/casecode/uscodes/50/chapters/36/subchapters/i/toc.html (FISA) = United Stated Code Annotated 50 USCA § 1804.

RA Dr. Axel Spies, Bingham McCutchen, Washington DC.