Chapter 19 - Congressional Authority for National Security Surveillance Part I

2 Smith v. Maryland United States Supreme Court, 442 U.S. 735 (1979) What is a pen-register and why did the police use them? Are the customers of the phone company aware that this information was being collected by the phone company? How is a pen register different from a Katz wiretap? Why isn't the installation of the pen-register a search? What is the search?

3 United States v. Miller, 425 U.S. 435 (1976) Access to Bank Records ‘‘The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government.... This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.’’

4 Expectation of Privacy Why did the defendant not have an expectation of privacy? Why is the dissent concerned about basing the 4th amendment on reasonable expectations of privacy? Has the court adopted the dissent's view over time?

5 Subsequent Legislation What sort of warrant requirement did Congress enact? Is this like an administrative search? What does this standard about information provided to third parties tell us about social networking? Information other than conversations that come from Internet and cell phone use?

6 Background for FISA When was FISA passed? What abuses in the Church Report drove the passage of FISA? How about the concentration camp list?

7 United States v. Duggan, 743 F.2d 59 (1984) What organization were the defendants part of? What were they objecting to? Who does FISA apply to? Expanded later

FISA Definitions

9 What is a United States person? ''United States person'' to include a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101(a)(20) of title 8), [and] an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence.

10 What is the relevant definition of foreign intelligence? (1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against-... (B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or... (2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to- (A) the national defense or security of the United States; or (B) the conduct of the foreign affairs of the United States. Id. §1801(e).

11 What is the definition of international terrorism? 1) involve violent acts or acts dangerous to human life that... would be a criminal violation if committed within the jurisdiction of the United States or any State; (2) appear to be intended (A) to intimidate or coerce a civilian population; (B) to influence the policy of a government by intimidation or coercion; or (C) to affect the conduct of a government by assassination or kidnapping; and

12 Where must it occur? (3) occur totally outside the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum. How does this definition try to differentiate ordinary crime?

13 Are Defendants Agents of Ireland? What part of the definition of foreign power in FISA covers defendants? How does this expand the traditional notion of a foreign power as a state? How big does a group have to be to be a FISA foreign power?

14 FISA Warrants What must the government show to get a FISA warrant? What else must the government do if the target is a United States person? What must the judge find that there is probable cause to support?

15 What must the government do if the target is a United States person? When the target is a United States person, the government is required to minimize the acquisition and retention of nonpublicly available information and to prohibit its dissemination, consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information, id. §1801(h); and the application must set out what minimization procedures are proposed, id. §1804(a)(5).

16 Non-U.S. Persons What does this implicitly tell you about the review standard for non-US persons? How does this differ from the requirements for a criminal law warrant?

17 The Real Meaning of FISA Core question - Does FISA delineate 4th Amendment standards for foreign intelligence, or does FISA establish the standards for deciding that intelligence is outside the scope of the 4th amendment? What did Congress think it was doing?

18 The Holding What did the judge hold about the FISA balancing of 4th amendment protections and the need to do foreign intelligence? What about defendant's claims that foreign terrorism does not implicate US national security interests?

19 When is FISA Necessary? Given what we now know about the application of the constitution to foreigners outside of the US, if the judge finds that the intelligence is directed at foreigners outside the US, does the government need FISA at all? In that situation, what is the role of FISA? When is FISA necessary outside the US?

20 The FISA Court How is the FISA court selected? What is the FISA appeals court? Does the United States Supreme Court have jurisdiction over FISA appeals? Why was FISA amended to require the Attorney General personally to review and to justify in writing any decision not to approve an application for a FISA order? What is the problem with doing quality control on FISA requests?

21 Standard for Reviewing the FISA Judge How does the legislative history indicate that the appeals court should review the findings of the FISA judge? Does this look like classic agency deference, rather than the review of a criminal law warrant? What did the Senate report say about the overlap between foreign intelligence and criminal investigations?

22 The Primary Purpose versus Sole Purpose Doctrine What is the problem that the primary purpose doctrine addresses? When may the judge disclose supporting documents for the FISA warrant to the defense? The judge has the discretion to disclose portions of the documents, under appropriate protective procedures, only if he decides that such disclosure is ‘‘necessary to make an accurate determination of the legality of the surveillance.’’ 50 U.S.C. §1806(f). What is the standard for disclosing documents to the defense in the ordinary criminal proceedings?

23 FISA What types of electronic surveillance does FISA contemplate? _50_ html _50_ html Does FISA allow video surveillance?

24 Post 9/11 Changes How was the pen register language modified after 9/11 to include ? ‘‘dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, provided... that such information shall not include the contents of any communication.’’ What else might this allow the feds to collect? How might an automatic out of office message get you in trouble under this law?

25 Physical Searches How was FISA amended to include physical searches? Congress amended FISA to permit physical searches in the United States for the purpose of collecting ‘‘foreign intelligence information’’ of the ‘‘premises, property, information or material of a foreign power or agent of a foreign power.’ What are the limits on a physical search? Is there a notice provision for the target? Why are different procedures used than for criminal searches?

26 The Lone Wolf Provision What is the "lone wolf provision" - 50 U.S.C. §1801(b)(1)(C)? any person who engages in international terrorism or activities in preparation therefore What does the "lone wolf provision" do to the notion of an agency of a foreign power? Add in the transnational boundary provisions and how can you include the military base shooter?

27 FISA Expansion How was the basis for probable cause under FISA expanded in 2000? How does this broaden FISA? Why should this make you worry more about mistakes by NSA in reading your ? What does it mean for Jerry Adams? What is the emergency exception for FISA?