Class #6: Electronic Surveillance: The Demise of “The Wall” · 2014-09-26 · Government...
Transcript of Class #6: Electronic Surveillance: The Demise of “The Wall” · 2014-09-26 · Government...
Class #6: Electronic Surveillance: The
Demise of “The Wall”
Professor Emily BermanThursday, September 11, 2014
Thursday, September 11, 2014
Wrap up the mechanics of FISA
“The Wall”
• Its genesis – the aftermath of Truong & FISA
• Its drawbacks – e.g., Moussaoui
• Its eventual demise – In re Sealed Case
2
Government applies to the FISC for a
surveillance order. The application must
show:
• Probable cause that the target is, and
that the targeted facilities are used by, a
foreign power or agent of foreign
power.
• The information being sought is FII.
• Attorney General’s approval.
• Minimization procedures are in place. 3
Targeting rules
• USPs can only be AFPs if they “may” be
engaging in unlawful activities, such as
unlawful clandestine intelligence
gathering on behalf of a FP.
• USPs may not be targeted “solely” on
the basis of First-Amendment-
protected activity.
• Non-USPs may be targets merely by
working for a foreign government.4
What about the defendant in Keith, who was
accused of bombing a CIA office?
He is not a FP or an AFP.
Section 1801(b)(1)(c) permits targeting of
someone who “engages in international
terrorism” (a/k/a the “lone wolf provision).”
(593). Does he meet that definition?
Applies only to non-USPs.
What if he was not a USP?
Only if his actions meet the definition of
“international terrorism” in § 1801(c).5
50 U.S.C. § 1801(e) (584 n.7):
• “[I]nformation that relates to, and if
concerning a United States person is
necessary to, the ability of the United States
to protect against” attack, sabotage or
international terrorism, espionage
• “[I]nformation with respect to a foreign
power” that relates to, and if concerning a
United States person is necessary to, the
national defense or foreign affairs of the US6
Minimization procedures:
• Can be undertaken at three points in time:
acquisition, retention, dissemination.
• Effort to segregate, and prevent from
being used & disseminated, certain info.
50 U.S.C. § 1801(h):
• FII need not be minimized.
• Only “nonpublicly available information
concerning unconsenting USPs” must be
minimized. 7
50 USC §1801(f) defines electronic surveillance
as the acquisition of any –
1) wire (fiber-optics) or radio (satellite)
communication to/from an intentionally
targeted USP in the US;
2) wire communication to/from any person in the
US, if such acquisition occurs in the US;
3) radio communication, if the sender & all
recipients are in the US; or
4) Installation of a surveillance device in the US
for information . . . That would require a warrant
for law enforcement purposes. 8
1978 FISA (50 U.S.C. § 1804): Required
the government to certify that “the
purpose” of the surveillance was to
obtain foreign intelligence information.
Truong, 1982, 4th Circuit: No warrant is
required when (1) the target of
surveillance is a foreign power or its
agent & (2) the primary purpose of the
search/surveillance is to collect foreign
intelligence. 9
1978 FISA (50 U.S.C. § 1804): Required
the government to certify that “the
purpose” of the surveillance was to
obtain foreign intelligence information.
2001 PATRIOT Act: Amended 50 U.S.C. §
1804 to require that “a significant
purpose” of the surveillance is to obtain
foreign intelligence information.
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Facts:
• Government sought orders to reflect the
change enacted by the PATRIOT Act by
dismantling The Wall.
• FISA judges initially resisted the change.
• Government then filed the first appeal of a
FISC decision since FISA passed in 1978.
11
Holding (604): “So long as the government
entertains a realistic option of dealing with
the [foreign] agent other than through
criminal prosecution, it satisfies the
‘significant purpose’ test.”
Impermissible uses of FISA
• The government’s “sole objective” may not
be to obtain evidence of criminal conduct.
• The government’s “primary objective” may
not be to prosecute “a non-FI crime.”12
50 USC §1801(f) defines electronic surveillance
as the acquisition of any –
1) wire or radio communication to/from an
intentionally targeted USP in the US;
2) wire (fiber-optics) communication to/from any
person in the US, if such acquisition occurs in
the United States;
3) radio (satellite) communication, if the sender
& all recipients are in the US; or
4) Installation of a surveillance device in the US
for information . . . That would require a warrant
for law enforcement purposes. 13
Technological changes + 1% doctrine = TSP:
Post-9/11 the government fears that
members of AQ are communicating with
people in the US, plotting more attacks.
Imagine that the government wants the NSA
to tap OBL’s phone and record all of his
international calls, including calls to or
from USPs in the US.
Permissible under FISA?14