Intelligence Law Glossary - Electronic Surveillance [HTML-Only]


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Electronic Surveillance

Statutory Law

*50 U.S.C. § 1801 (f) (Title 50—Chapter 36: Foreign Intelligence Surveillance—Subchapter A: 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, United States Code;
      (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.

*NOTE: The Protect America Act of 2007 temporarily removed application of this definition to any surveillance of persons located overseas. This even included electronic surveillance of U.S. persons.

  • The Protect America Act, P.L. 110-55 was signed into law on August 5, 2007. Many of the provisions were set to expire in 6-months, and were extended briefly for an additional 15 days before expiring on February 16, 2008. See Pub. L. No. 110-182 (extending effectiveness of the Protect America Act for 15 days beyond the original sunset date).
  • This statute inserted a clarification into FISA’s definitions redefining “electronic surveillance” so as not to be interpreted as applying to any surveillance conducted on persons reasonably believed to be located abroad. See FISA § 105(A), 50 U.S.C. § 1805a (2007) (“Nothing in the definition of electronic surveillance under section 101(f) [50 U.S.C. § 1801(f)] shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.”). This provision sunset on February 16, 2008, subject to saving provisions that validated orders approved during the statute’s short lifespan. The provision was repealed on July 10, 2008 by the FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436.
  • The Protect America Act of 2007 gave the AG and DNI the power to order communications service providers, custodians, or other persons (including any officer, employee, agent, or other specified person of such service provider, custodian, or other person) who has access to communications, either as they are transmitted or while they are stored, or equipment that is being or may be used to transmit or store such communications.” See FISA § 105(B), 50 U.S.C. § 1805b (2007). This provision sunset on February 16, 2008, subject to saving provisions that validated orders approved during the statute’s short lifespan. The provision was repealed on July 10, 2008 by the FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436.
  • FISA Section 105B, codified at 50 U.S.C. § 1805b (2007), contained the now repealed procedures that were in effect during the 6-month U.S. citizen intelligence collection extravaganza.
  • The Protect America Act of 2007’s modifications in FISA § 105B, codified at 50 U.S.C. § 1805b (a) (2007), was repealed by the FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436.
  • For secondary analysis of the Protect America Act of 2007, see Elizabeth B. Bazan, Congressional Research Serv., P.L. 110-55, the Protect America Act of 2007: Modifications to the Foreign Intelligence Surveillance Act (2007), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL34143_8-23-2007.pdf.

Administrative Law

Executive Order 12333, United States Intelligence Activities, § 3.5(c) (2010)

Electronic surveillance means acquisition of a nonpublic communication by electronic means without the consent of a person who is a party to an electronic communication or, in the case of a non-electronic communication, without the consent of a person who is visibly present at the place of communication, but not including the use of radio direction-finding equipment solely to determine the location of a transmitter.

Department of Defense Regulation 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, § DL1.1.9 (Dec. 1982): Electronic Surveillance

Acquisition of a nonpublic communication by electronic means without the consent of a person who is a party to an electronic communication or, in the case of a nonelectronic communication, without the consent of a person who is visibly present at the place of communication, but not including the use of radio direction finding equipment solely to determine the location of a transmitter. (Electronic surveillance within the United States is subject to the definitions in the Foreign Intelligence Surveillance Act of 1978 (reference (b)).)