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Criminal Resource Manual

1073. The Foreign Intelligence Surveillance Act (FISA) -- 50 U.S.C. 1809

Congress has enacted comprehensive legislation governing electronic surveillance. In 1968, Congress passed Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. In 1978, the Foreign Intelligence Surveillance Act of 1978 ("FISA"), 50 U.S.C. § 1801 et seq., was enacted. In 1986, Congress passed the Electronic Communications Privacy Act of 1986 ("1986 Act"), Public Law No. 99-508, which substantially revised Title III to provide coverage for the technological advances developed in the area of electronic communications since the passage of the original act. Minor amendments have since been made to the 1986 Act.

These statutes share several common characteristics. Both Title III and FISA prescribe authorization procedures which must be followed before electronic surveillance can be conducted. Compare 18 U.S.C. §§  2516 to 2517 with 50 U.S.C. §§ 1802 to 1805. These procedures include judicial approval of surveillance applications; minimization of interceptions by surveilling officials; and limitations on the use of intercepted information. Moreover, both statutes impose civil and criminal sanctions on unauthorized surveillance activities. Compare 18 U.S.C. §§  2511 (criminal penalties) and 2520 (civil sanctions) with 50 U.S.C. §§ 1809 (criminal penalties) and 1810 (civil sanctions). On the other hand, one court has distinguished between these regimes, holding that "FISA regulates both aural and visual electronic surveillance conducted for foreign intelligence purposes, and [Title III] regulates aural electronic surveillance conducted for domestic purposes." United States v. Koyomejian, 970 F.2d 536, 540 (9th Cir.) (en banc), cert. denied, 506 U.S. 1005 (1992).

[cited in USAM 9-60.400]