The Foreign Intelligence Surveillance Act
Growing out of the Watergate scandal when federal resources were used to spy on domestic political and activist groups, The Foreign Intelligence Surveillance Act (FISA) was introduced by Senator Ted Kennedy (D-MA) and signed into law by President Jimmy Carter in 1978. As its title suggests, the law was created to “provide judicial and congressional oversight of the government’s covert surveillance activities of foreign entities and individuals in the U.S., while maintaining the secrecy needed to protect national security.”
Soon after the 9/11 terrorist attacks in 2001, the George W. Bush Administration began a series of questionable secret surveillance practices, including warrantless domestic wiretapping. Major amendments to FISA were subsequently made to legitimize and empower some of these secret operations. FISA was transformed into massive warrantless surveillance programs shrouded in secrecy, and Chinese Americans are disproprotionately impacted.
The FISA Amendments Act of 2008
The FISA Amendments Act of 2008 was enacted in 2008. It added a new Title VII to FISA, authorizing targeting of non-U.S. persons outside the U.S.. Section 702 spells out additional limitations to such surveillance. It was specifically stated that the surveillance must be conducted in a manner consistent with the Fourth Amendment to the United States Constitution.
Reauthorization of the FISA Amendments Act in 2012
President Barack Obama reauthorized the FISA Amendments Act in 2012 for five years before Edward Snowden made astonishing disclosures in 2013 about how the government manipulates its power to conduct secret, warrantless mass surveillance programs on U.S. persons in violation of their constitutional rights. Some of the subsequently known problems such as “about communications,” “backdoor searches,” “parallel construction” and “reverse target” are described in the blog titled “One Asian American’s Perspective on the FISA Amendments Act and Section 702.”
Asian Americans Are Disproportionately Impacted
No person of Chinese origin was known to be part of the 9/11 or other terrorist attacks. Section 702 has always been claimed to be a vital tool to combat terrorism since 2008. However, soon after Section 702 became law, the Department of Justice (DOJ) and the Federal Bureau of Investigations (FBI) declared that economic espionage is a major security threat to the U.S. and started publicity campaigns with China as the major culprit.
In May 2017, the Committee of 100 presented a white paper, “Prosecuting ‘Chinese Spies’: An Empirical Analysis of the Economic Espionage Act” by legal scholar Andrew Kim of South Texas College of Law. Among other disturbing findings, the study showed an immediate spike in prosecutions against Asian Americans in 2008. A series of innocent naturalized Chinese Americans in private industry, federal government, and academia were accused of spying for China, but all of them were subsequently dismissed without an explanation, much less an apology, from the government.
Professor Xiaoxing Xi, former Interim Chair of the Physics Department at Temple University was also wrongfully prosecuted and eventually dismissed as an economic spy for China. He filed suit against FBI agent(s) for falsification of evidence and violations of his Fourth Amendment rights in May 2017, identifying FISA surveillance as a major contributing factor to the violations he faced. He was joined by his family and the American Civil Liberties Union
Despite the heroic efforts of individuals to defend themselves against all odds, they and their families have already suffered devastating damages in legal expense, emotional trauma, and overall reputation.
The Warrantless Surveillance Programs under FISA Present Serious Constitutional Issue
When the FISA Amendments Act was last due for reauthorization in 2012, little was known about the warrantless, mass surveillance programs because they were shrouded in secrecy. Today, we know that even the FISA court had sharply criticized in its written opinion (declassified in April 2017) that the government reporting efforts were lacking in “institutional candor” and represent “a very serious Fourth Amendment issue.” This same FISA court has approved more than 99.5% of the government’s requests since the enactment of FISA in 1978.
FISA and its amendments are not the only laws subject to misuse and abuse by the authorities in the name of national security. The magnitude of their adverse implication and impact has been difficult to assess due to the inherent secrecy and complexity.
With what little that has been made public, we know that protection for privacy and civil liberty has been grossly inadequate under FISA and its amendments. The government must not continue to use innocent, law-abiding Asian Americans as “collateral damage,” convenient scapegoats, or targets of racial profiling without accountability.
FISA Was Renewed for Six Years
President Trump signed the FISA Amendments Reauthorization Act of 2017 into law. The current authorization will expire in December 2023.
For More Information
Please visit APA FISA Watch to learn more about the actions undertaken by the APA Justice Task Force and concerned organizations regarding FISA renewal.