FISA Explained: The FISC, Section 702, and Oversight

The Foreign Intelligence Surveillance Act, known as FISA, is a 1978 federal law that sets the rules for how the U.S. government can wiretap, search, and gather intelligence on foreign powers and their agents operating inside the United States. Its core function is to route intelligence collection through a specialized federal court rather than leaving it to the sole discretion of the executive branch. The statute is codified at 50 U.S.C. Chapter 36 and has been amended repeatedly since it was enacted, most recently in April 2024.¹

What FISA Authorizes

The statute organizes the government’s intelligence-gathering powers into several distinct categories, each with its own procedural rules. The common thread is that the government generally has to go through a judicial process before collecting intelligence on people inside the country.

Electronic surveillance of wire, radio, and other communications when the target would normally have a reasonable expectation of privacy.²
Physical searches of property, including homes and offices, often conducted without the occupant’s knowledge.
Pen registers and trap-and-trace devices, which record dialing, routing, and addressing information but not the content of communications.
Business records, meaning financial, travel, and similar documents held by third parties, obtained through special court orders.

These authorities carry sharply different rules than criminal wiretaps. In a FISA proceeding, the government does not have to show a crime has been or is about to be committed. It has to show the target fits the statutory definition of a foreign power or its agent.

Who Can Be Targeted

FISA does not authorize surveillance of anyone with a foreign connection. It defines two permissible categories: foreign powers and agents of foreign powers.

A “foreign power” includes foreign governments and their components, factions of foreign nations, entities openly acknowledged as directed by a foreign state, groups engaged in international terrorism, and foreign-based political organizations.² An “agent of a foreign power” is someone who knowingly engages in spying, sabotage, or terrorism on behalf of one of those entities. For non-U.S. persons, the definition reaches more broadly and can cover anyone acting as an officer or employee of a foreign power.

The statute treats Americans and permanent residents differently. A “United States person” means a U.S. citizen, a lawfully admitted permanent resident, a U.S.-incorporated corporation, or an unincorporated association where a substantial number of members are citizens or permanent residents.² No U.S. person can be treated as a foreign power or its agent based solely on First Amendment-protected activity such as political speech, religious practice, or association with advocacy groups.³ That protection does not extend to non-U.S. persons abroad.

The Foreign Intelligence Surveillance Court

Traditional FISA surveillance requests go through the Foreign Intelligence Surveillance Court, commonly called the FISC. Eleven sitting federal district judges serve on the court, each designated by the Chief Justice of the United States for a single term of up to seven years, with staggered terms so only a few rotate on and off each year.⁴ The court originally had seven judges; the USA PATRIOT Act of 2001 expanded it to eleven.

FISC proceedings are classified and almost always one-sided: only government attorneys appear, and no lawyer represents the target. The USA FREEDOM Act of 2015 introduced one outside voice into that setup. The FISC must now appoint an independent amicus curiae whenever a case involves a novel or significant interpretation of the law, unless the court specifically finds such an appointment is unnecessary.⁵ Amici must hold security clearances and have expertise in areas like privacy, civil liberties, or communications technology.

If the FISC denies an application, the government can appeal to the Foreign Intelligence Surveillance Court of Review, a three-judge panel also designated by the Chief Justice.⁵

How a FISA Order Gets Approved

Applications start inside the executive branch before ever reaching a judge. A federal officer submits a written, sworn application to the FISC, but only after the Attorney General personally reviews and approves it.⁶

The application has to lay out why the government believes the target is a foreign power or its agent, and why the specific phone line, email account, or location being targeted is actually being used by that target. It must also describe minimization procedures, which are rules that limit the collection and retention of information about U.S. persons who are not the target and prevent their identities from being disseminated without good reason.²

A senior national security official then has to certify that the information being sought qualifies as foreign intelligence, that a significant purpose of the surveillance is to obtain foreign intelligence, and that the information cannot reasonably be gathered through normal investigative techniques.⁶ Officials authorized to sign this certification include the National Security Advisor, the Deputy Director of the FBI, and other executive officers appointed by the President and confirmed by the Senate. The FISC judge evaluates whether the application meets the statute and whether the surveillance complies with the Fourth Amendment.

Section 702: A Different Track for Foreigners Abroad

Section 702, added by the FISA Amendments Act of 2008, works very differently. Instead of individual court orders for each target, the Attorney General and the Director of National Intelligence jointly authorize a program of collection for up to one year at a time. They submit annual certifications to the FISC describing the categories of foreign intelligence to be collected and the targeting and minimization procedures the intelligence community will follow.⁷ Once the FISC approves the package, the government can issue directives compelling electronic communication service providers to assist with collection.⁸

Section 702 can only be used to target non-U.S. persons reasonably believed to be located outside the United States.⁹ It cannot be used to target Americans or anyone on U.S. soil. In practice, communications of U.S. persons still get swept up incidentally when they are on the other end of a call or email with a foreign target, and minimization rules govern how agencies then handle that data.

Section 702 is not permanent and requires periodic reauthorization. The Reforming Intelligence and Securing America Act (RISAA), signed into law on April 20, 2024, extends it through April 20, 2026.¹⁰ The 2024 law also tightened FBI query rules: agents now need prior supervisory or attorney approval to run queries using U.S. person identifiers, politically sensitive queries such as those targeting elected officials require sign-off from the FBI Deputy Director, and political appointees are barred from the approval chain for those sensitive queries.¹¹

FISA Evidence in Criminal Cases

Information gathered through FISA sometimes shows up in criminal prosecutions. When the government plans to use FISA-derived evidence against someone at trial or in a hearing, it must notify both the defendant and the court beforehand.¹² The defendant can then move to suppress the evidence on grounds that it was unlawfully acquired or that the surveillance departed from the authorizing court order. Challenges are difficult in practice because the underlying FISC applications and orders stay classified.

Penalties for Misuse

Officials who conduct electronic surveillance outside FISA’s boundaries face criminal exposure. Intentionally engaging in unauthorized surveillance under color of law, or disclosing or using information obtained from it, can bring imprisonment of up to 10 years, a fine, or both.¹³ The 10-year maximum is double the original five-year cap, raised by the 2024 reauthorization law. That law also imposed mandatory consequences for government employees who commit intentional misconduct in FISC proceedings, including suspension without pay or removal.¹¹

Someone who has been subjected to unlawful electronic surveillance can also sue. A U.S. person who wins is entitled to actual damages or statutory damages of at least $1,000 per day of the violation (with a $10,000 floor), whichever is greater. Punitive damages, attorney’s fees, and litigation costs are available as well.¹⁴ Foreign powers and their agents cannot bring these claims; the civil remedy is reserved for people who should not have been surveilled in the first place.

Oversight

Multiple bodies share responsibility for watching how FISA is used. The FISC reviews compliance incidents reported by the intelligence community, the Attorney General reports to Congress on surveillance activities, and the Office of the Director of National Intelligence publishes an annual statistical transparency report covering the number of FISA orders, Section 702 targets, and related data.¹⁵ The 2024 reauthorization also allows specified congressional leaders to attend FISC proceedings and designate cleared staff to attend on their behalf.¹¹ Compliance errors identified by the intelligence community must be reported to both the FISC and Congress,⁹ and past reports have surfaced a pattern of FBI queries on U.S. person data without adequate justification, which drove the tighter query rules enacted in 2024.

1
Office of the Law Revision Counsel. 50 USC Chapter 36 – Foreign Intelligence Surveillance
2
Office of the Law Revision Counsel. 50 USC 1801 – Definitions
3
Office of the Law Revision Counsel. 50 USC 1805 – Issuance of Order
4
Foreign Intelligence Surveillance Court. About the Foreign Intelligence Surveillance Court
5
Office of the Law Revision Counsel. 50 USC 1803 – Designation of Judges
6
Office of the Law Revision Counsel. 50 USC 1804 – Applications for Court Orders
7
Office of the Law Revision Counsel. 50 USC 1881a – Procedures for Targeting Certain Persons Outside the United States Other Than United States Persons
8
Office of the Director of National Intelligence. Section 702 Basics Infographic
9
Intelligence.gov. FISA Section 702
10
Congress.gov. FISA Section 702 and the 2024 Reforming Intelligence and Securing America Act
11
Congress.gov. HR 7888 – Reforming Intelligence and Securing America Act
12
Office of the Law Revision Counsel. 50 USC 1806 – Use of Information
13
Office of the Law Revision Counsel. 50 USC 1809 – Criminal Sanctions
14
Office of the Law Revision Counsel. 50 USC 1810 – Civil Liability
15
Office of the Director of National Intelligence. ODNI Releases 13th Annual Intelligence Community Transparency Report