It's a popular meme on Republican sites to question whether FISA applied to the NSA wire taps, known to have occurred at ATT, Verizon, and other telcos. There's been quite a lot of dissembling on the subject coming from the RNC and its organs.

So, to clear this up, here are the basic facts everybody should know about it:

1) Q: What does FISA law apply to, and what does it require?

A: FISA requires that all domestic electronic surveillance require a warrant from a FISA court. Electronic surveillance is defined broadly, clearly as a catch all, and it certainly applies to all phone calls, emails, wired or wireless, and electronic communication. Surveillance is also defined broadly, as a catch all, referring to any mechanical, electronic, or other surveillance device.

FISA definition of electronic surveillance

(f) “Electronic surveillance” means—

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or

(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

2) Q: What was ATT and Verizon doing, did it require a FISA warrant, and was it illegal?

A: The best information we have is from the Electronic Frontier Foundation (EFF) a watchdog group and legal foundation. The EFF is prosecuting a case against ATT based on public information and a whistle-blower account of ATT's unwarranted wire tapping practices on behalf of the NSA.

EFF on NSA Spying

In 2005, Americans learned that the President authorized the National Security Agency (NSA) to wiretap phone and email communications involving United States persons within the U.S. without obtaining a warrant or court order pursuant to the Foreign Intelligence Surveillance Act of 1978 (FISA). FISA prohibits unauthorized electronic surveillance. Shortly afterwards Americans also learned that the major telecoms participated in warrantless surveillance surveillance, handing over billions of their customers private communications and communications records. EFF later developed specific, undisputed whistleblower evidence demonstrating AT&T's direct participation in the warrantless surveillance by diverting its customer communications to the NSA.

EFF believes the warrantless surveillance violates the Fourth Amendment, FISA, the Wiretap Act, and most likely the Electronic Communications Privacy Act. Moreover, it is neither authorized nor justified by the Constitutional power of the executive.

EFF filed the first case against a telecom arising from the warrantless surveillance, called Hepting v. AT&T. This page collects information about the Hepting case, as well as about the nearly 40 legal cases that have arisen from the warrantless surveillance currently pending in the Northern District of California courts.

In summary, yes FISA clearly states that all domestic electronic surveillance requires a FISA warrant.

ATT, Verizon, and others are known to have proceeded with electronic surveillance of billions of emails and phone calls via the installation of special hardware, on behalf of the NSA.

The NSA did not obtain FISA warrants for the electronic surveillance.

T-Mobile is one company known to have refused and demanded a FISA warrant. Verizon claims to have ceased since the scandal became public.

The electronic surveillance done by the NSA, and participating companies such as ATT and Verizon is illegal.