Intelligence Law School - Course 1: Lesson 4.5.3 Subchapters of Title 50: Chapter 36: Foreign Intelligence Surveillance [HTML-Only]


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LESSON 4: STATUTORY LAW


4.5 Framework Statutes (U.S. Code Title 50, Chapter 36: Foreign Intelligence Surveillance)


4.5.3 Subchapters of Title 50: Chapter 36: Foreign Intelligence Surveillance


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4.5.3 Subchapters of Title 50: Chapter 36: Foreign Intelligence Surveillance

Most of the Foreign Intelligence Surveillance Act is codified, as amended, as Chapter 36 of Title 50 of the U.S. Code. Chapter 36 is divided into 7 subchapters—A through G:

Ø  A) Subchapter A: Electronic Surveillance: There’s Subchapter A: Electronic Surveillance.[1]

o   This contains the original FISA provisions establishing the Foreign Intelligence Surveillance Court and Foreign Intelligence Surveillance Court of Review.[2]

Ø  B) Subchapter B: Physical Searches: There’s Subchapter B on Physical Searches.[3]

o   Originally, FISA only authorized the issuance of court orders for electronic surveillance.

o   The FISA court’s power to issue court orders for physical searches for foreign intelligence purposes was added to FISA by Congress on October 14, 1994.[4]

o   Subchapter B contains the procedures for petitioning the court.[5]

Ø  C) Subchapter C: Pen Registers and Trap and Trace Devices for Foreign Intelligence and International Terrorism Investigations: Subchapter C deals with Pen Registers and Trap and Trace Devices for Foreign Intelligence and International Terrorism Investigations.[6]

Ø  D) Subchapter D: Access to Certain Business Records for Foreign Intelligence Purposes: Subchapter D sets out provisions giving investigators access to certain business records for foreign intelligence purposes.[7]

o   These business records provisions were added to the FISA framework statute in 1998, but they’ve been substantially modified since then by amendatory legislation.[8]

o   The title of this chapter is very misleading—“Access to Certain Business Records for Foreign Intelligence and International Terrorism Investigations,” doesn’t adequately describe the incredible scope of tangible items that can be seized by the government using the provisions in Subchapter D.[9]

o   It’s definitely not just business records they’re after with this new tool.

o   To give you an example, it allows the FBI to apply for an order demanding the production of things like:

§  Library Circulation Records,

§  Library patron lists,

§  Book sales records,

§  Book customer lists,

§  Firearms sales records,

§  Tax return records,

§  Educational records, or

§  Medical records.[10]

o   Some the more controversial changes to FISA made after 9/11 were only intended to remain in force for a limited number of years and were subject to sunset provisions where they would cease to have effect after a certain date, but investigations initiated before that date are exempt and allowed to proceed.[11]

Ø  E) Subchapter E: Reporting Requirement: Subchapter E contains the FISA’s reporting requirements.[12]

Ø  F) Subchapter F: Additional Procedures Regarding Certain Persons Outside the United States: Subchapter F is a special section dealing with so-called “Additional Procedures Regarding Certain Persons Outside the United States.”[13]

o   This contains the controversial provisions of the Protect America Act of 2007[14] that allowed—for a 6-month[15] period ending in 2008—the DNI or Attorney General to authorize warrantless spying on American citizens reasonably believed to be traveling abroad.[16]

§  This statute has since expired, but while it was in effect it effectively repealed the Fourth Amendment rights of Americans travelling overseas, and placed operations targeting them outside the rule of law while the Protect America Act was in effect.[17]

§  The constitutionality of the act was highly suspect,[18] but it wasn’t in force long enough for any person to have time to gain standing and bring a successful challenge.

§  The statute was designed so that any legal challenge to the program would be rendered moot when the act sunset six months after its passage.

§  This guaranteed that even if somebody did get standing to challenge the program, their case would have been guaranteed to be thrown out of court without a ruling.

·         [PAUSE FOR JOKE] Niccolo Machiavelli would have been impressed.

·          

Ø  G) Subchapter G: Protection of Persons Assisting the Government: And finally, there’s Subchapter G: Protection of Persons Assisting the Government.[19]

o   This contains the telecom immunity that was part of the FISA Amendment Act of 2008.[20]

o   This retroactive immunity created quite a stir when it was being considered in Congress because it made it impossible for injured Americans to sue any of the telecommunications companies that broke the law[21] by assisting the NSA’s warrantless surveillance program, later dubbed the “Terrorist Surveillance Program” (TSP).[22]

o   Injured Americans targeted by the program can’t even bring a suit seeking declaratory or injunctive relief.

o   Under this statute, the Attorney General of the United States has the power to demand judges to dismiss any TSP-related cases.[23]

§  This is a pretty unusual provision for Congress to enact because of the separation of powers.

§  But it’s on the books, and codified as Subchapter G under Chapter 36 of Title 50 of the United States Code.

 

That’s it for the Foreign Intelligence Surveillance Act.

FISA is the main framework statute discussed in later courses on IntelligenceLaw.com.

 

Ø  Effect of Modern Technology and FISA Loopholes: There are countless incredible loopholes in FISA’s protections and new advancements in surveillance technology since FISA was passed over 30 years ago have exploited these gaps and rendered FISA virtually meaningless today.

Ø  Call for a New Framework Statute on Intelligence Activities: This is why many civil liberties advocates are fighting to get Congress to enact a comprehensive new framework statute governing domestic intelligence operations across the board to handle all of the things that have fallen through the cracks. 

Ø  Loophole-Ridden Definition of “Electronic Surveillance:” Because of the way “electronic surveillance” is defined, the government can get out of virtually all legal restrictions imposed on “electronic surveillance” simply by getting one person’s consent—even if that one person is their own agent.[24]

o   FISA’s definition of “electronic surveillance” covers 4 categories of activities.

o   3 of the 4 possible categories apply only to efforts involving “communications.”

o   These 3 of 4 categories are defined so that government spying is not considered to be “electronic surveillance” if the data being searched and seized by intelligence gathers wasn’t part of a “communication.”[25]

§  Remember that FISA was drafted back before the Internet, so when Congress thought about spying on Americans it was only thinking about spying on communications.

§  Since “electronic surveillance” is defined as techniques targeting “communictations” this means that cyber espionage by the NSA that involves searching and seizing the data stored on your computer is not even governed by FISA at all.

§  FISA governs only “electronic surveillance.”

§  “Electronic surveillance” is defined so it only includes methods targeting “communications.”

§  Non-communicated data stored on your laptop—including all of your files, your First Amendment work product, computer program data, images, EVERYTHING that makes up the bulk of your computer files—NONE OF IT is protected.

§  Communications data makes up virtually none of the space on your hard drive.

§  Because FISA’s definition of “electronic surveillance” was written back in 1978, none of the modern computer data you would assume would be protected is given any protection at all.

§  It exists in a legal vacuum where no statutory law applies to regulate what the NSA can search and seize.

o   That’s the definition of “electronic surveillance” itself!

o   A certain electronic spying method without consent is “electronic surveillance;”

o   That same electronic spying method with just one informant’s consent is no longer “electronic surveillance” anymore. 

o   This is significant because FISA’s restrictions—including the minimization procedures—apply only to “electronic surveillance”

o   Since the definition is not static and definite, but rather is malleable and subjective, creates a gigantic loophole in FISA where agencies can avoid compliance with the entire statute simply by figuring out ways to say that what they’re doing is not technically “electronic surveillance” as defined by FISA.

o   This could allow endless new types of warrantless surveillance that use high-tech methods that target “non-communicated” data or that arguably involve the “consent” of a third-party somewhere along the line.

o   The sneaky way “electronic surveillance” is defined under FISA provides perhaps the greatest hidden loophole in the rights of Americans citizens in U.S. intelligence law.

Ø  Warrantless Consent Cyber-Searches and Seizures: The definition of “electronic surveillance” is also defined so that the very same tactics are not even considered to be “electronic surveillance” anymore unless the government would need a warrant to perform the tactic, which means that if government agents are able to force a third-party into consenting to monitoring your  is able to get one party’s consent.[26]

 

Footnotes

[1] Subchapter A: Electronic Surveillance (50 U.S.C. §§ 1801-1812).

[2] See Elizabeth B. Bazan, Congressional Research Serv., The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and U.S. Foreign Intelligence Surveillance Court and U.S. Foreign Intelligence Surveillance Court of Review Decisions (2007), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30465_2-15-2007.pdf (“FISA establishes two special courts, the U.S. Foreign Intelligence Surveillance Court (FISC) and the U.S. Foreign Intelligence Surveillance Court of Review (Court of Review), comprised of federal judges to address applications for court orders authorizing such electronic surveillance, physical searches, installation and use of pen registers and trap and trace devices, and production of tangible things. Under 50 U.S.C. § 1803(a), the Chief Justice of the United States must publicly designate eleven U.S. district court judges from seven of the United States judicial circuits, of whom no fewer than three must reside within 20 miles of the District of Columbia. These eleven judges constitute the U.S. Foreign Intelligence Surveillance Court (FISC), which has jurisdiction over applications for and orders approving electronic surveillance, physical searches, pen registers or trap and trace devices or orders for production of tangible things anywhere within the United States under FISA. If an application for electronic surveillance or a physical search under this Act is denied by one judge of this court, it may not then be considered by another judge on the court. If a judge denies such an application, he or she must immediately provide a written statement for the record of the reason(s) for this decision. The Chief Justice also publicly designates the three U.S. district court or U.S. court of appeals judges who together make up the U.S. Foreign Intelligence Surveillance Court of Review (Court of Review). This court has jurisdiction to review any denial of an order under FISA. If the United States appeals an FISC denial of an application, the record from the FISC must be transmitted under seal to the Court of Review established. If the Court of Review determines that an application was properly denied, again a written statement of the reason(s) for the court’s decision must be provided for the record. The United States may petition for a writ of certiorari to the United States Supreme Court for review of that decision. All proceedings under FISA must be conducted expeditiously, and the record of all proceedings including applications and orders granted, must be maintained under security measures established by the Chief Justice in consultation with the Attorney General and the Director of National Intelligence. Three FISC judges who reside within 20 miles of the District of Columbia, or, if all of such judges are unavailable, other judges of the FISC designated by the presiding judge of such court, comprise a petition review pool which has jurisdiction to review petitions filed pursuant to 50 U.S.C. § 1861(f)(1) challenging production orders and non-disclosure orders. The judges of the FISC and the Court of Review serve for seven year terms and may not be redesignated. The FISC and the Court of Review may establish rules and procedures, and may take such actions, as are reasonably necessary to administer their responsibilities under FISA.”) (internal footnotes omitted).

[3] Subchapter B: Physical Searches (50 U.S.C. §§ 1821-1829).

[4] Act Oct. 14, 1994, Pub. L. No. 103-359, Title VIII, § 807(c), 108 Stat. 3453; see also Elizabeth B. Bazan, Congressional Research Serv., The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and U.S. Foreign Intelligence Surveillance Court and U.S. Foreign Intelligence Surveillance Court of Review Decisions (2007), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30465_2-15-2007.pdf (“Physical searches for foreign intelligence purposes are addressed in 50 U.S.C. § 1821 et seq. While tailored for physical searches, the provisions in many respects follow a pattern similar to that created for electronic surveillance. The definitions from 50 U.S.C. § 1801 for the terms “foreign power,” “agent of a foreign power,” “international terrorism,” “sabotage,” “foreign intelligence information,” “Attorney General,” “United States person,” “United States,” “person,” and “State” also apply to foreign intelligence physical searches except where specifically provided otherwise. Minimization procedures also apply to physical searches for foreign intelligence purposes. Those defined under 50 U.S.C. § 1821(4) are tailored to such physical searches and, like those applicable to electronic surveillance under 50 U.S.C. § 1801(h), these procedures are designed to minimize acquisition and retention, and to prohibit dissemination, of nonpublicly available information concerning unconsenting U.S. persons, consistent with the needs of the United States to obtain, produce and disseminate foreign intelligence.”) (internal footnotes omitted).

[5] See Elizabeth B. Bazan, Congressional Research Serv., The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and U.S. Foreign Intelligence Surveillance Court and U.S. Foreign Intelligence Surveillance Court of Review Decisions (2007), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30465_2-15-2007.pdf (“The requirements for application for an order for a physical search under FISA are included in 50 U.S.C. § 1823. While tailored to a physical search, the requirements strongly parallel those applicable to electronic surveillance under 50 U.S.C. § 1804(a)(1)-(9). Like Section 1804(a)(7)(B) with respect to required certifications for an application for electronic surveillance under FISA, Section 1823(a)(7)(B) was amended by P.L. 107-56, Section 218, to require that the Assistant to the President for National Security Affairs or designated Executive Branch official certify, among other things, that a significant purpose (rather than “that the purpose”) of the physical search is to obtain foreign intelligence information. Section 1823(d) also parallels Section 1804(e) (dealing with requirements for some applications for electronic surveillance under FISA), in that, if requested in writing by the Director of the FBI, the Secretary of Defense, the Secretary of State, or the Director of National Intelligence, the Attorney General must personally review an application for a FISA physical search if the target is one described by Section 1801(b)(2). 50 U.S.C. § 1801(b)(2) deals with targets who knowingly engage in clandestine intelligence gathering activities involving or possibly involving violations of federal criminal laws by or on behalf of a foreign power; targets who, at the direction of an intelligence service or network of a foreign power, engage in other clandestine intelligence activities involving or potentially involving federal crimes by or on behalf of a foreign power; targets who knowingly engage in sabotage or international terrorism, activities in preparation for sabotage or international terrorism, or activities on behalf of a foreign power; targets who knowingly aid, abet, or conspire with anyone to engage in any of the previously listed categories of activities; or targets who knowingly enter the United States under false identification by or on behalf or a foreign power or who assume a false identity on behalf of a foreign power while present in the United States.  Should the Attorney General, after reviewing an application, decide not to approve it, he must provide written notice of his determination to the official requesting the review of the application, setting forth any modifications needed for the Attorney General to approve it. The official so notified must supervise the making of the suggested modifications if the official deems them warranted. Unless the Attorney General or the official involved is disabled or otherwise unable to carry out his or her respective responsibilities under Section 1823, those responsibilities are non-delegable.”) (internal footnotes omitted).

[6] Subchapter C: Pen Registers and Trap and Trace Devices for Foreign Intelligence Purposes (50 U.S.C. §§ 1841-1846).

[7] Subchapter D: Access to Certain Business Records for Foreign Intelligence Purposes  is codified as 50 U.S.C. §§ 1861-1863. It allows the FBI Director or his designee to make an application for an order requiring the production of any tangible item. 50 U.S.C. § 1861(a) (2010) (“Application for order; conduct of investigation generally. (1) Subject to paragraph (3), the Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.”).

[8] See Pub. L. No. 107-56; Pub. L. No. 107-108; Pub. L. No. 109-177; and Pub. L. No. 109-178.

[9] See Elizabeth B. Bazan, Congressional Research Serv., The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and U.S. Foreign Intelligence Surveillance Court and U.S. Foreign Intelligence Surveillance Court of Review Decisions (2007), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30465_2-15-2007.pdf (“Added in 1998, Title V of FISA, 50 U.S.C. § 1861 et seq., was substantially changed by P.L. 107-56, and modified further by P.L. 107-108, P.L. 109-177, and P.L. 109-178. Although denominated “access to certain business records for foreign intelligence and international terrorism investigations,” the reach of Section 1861, as amended by the USA PATRIOT Act, P.L. 107-108, P.L. 109-177, and P.L. 109-178, is now substantially broader than business records alone.”).

[10] See 50 U.S.C. § 1861(a)(3) (2010) ("In the case of an application for an order requiring the production of library circulation records, library patron lists, book sales records, book customer lists, firearms sales records, tax return records, educational records, or medical records containing information that would identify a person, the Director of the Federal Bureau of Investigation may delegate the authority to make such application to either the Deputy Director of the Federal Bureau of Investigation or the Executive Assistant Director for National Security (or any successor position). The Deputy Director or the Executive Assistant Director may not further delegate such authority.").

[11] Subchapter D contains some of the provisions that were scheduled to sunset on Dec. 31, 2009. See Act March 9, 2006, Pub. L. No. 109-177, Title I, § 102(b)(1), 120 Stat. 195 (stating “Effective December 31, 2009, the Foreign Intelligence Surveillance Act of 1978 is amended so that sections 501, 502, and 105(c)(2) [50 U.S.C. §§ 1861, 1862, and 1805(c)(2)] read as they read on October 25, 2001.”); see also Elizabeth B. Bazan, Congressional Research Serv., The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and U.S. Foreign Intelligence Surveillance Court and U.S. Foreign Intelligence Surveillance Court of Review Decisions (2007), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30465_2-15-2007.pdf (“Section 224 of the USA PATRIOT Act set a sunset for many of the provisions in P.L. 107-56 of December 31, 2005, including all of the FISA amendments except that in Section 208 of P.L. 107-56, which increased the number of FISC judges from 7 to 11. Section 224 was repealed by the USA PATRIOT Improvement and Reauthorization Act of 2005, P.L. 109-177, Subsection 102(a). Subsection 102(b) of P.L. 109-177 provided that Sections 105(c)(2) of FISA, 50 U.S.C. § 1805(c)(2) (dealing with multipoint or roving wiretaps under FISA), 501 of FISA, 50 U.S.C. § 1861 (dealing with production of any tangible thing under FISA), and 502 of FISA, 50 U.S.C. § 1862 (dealing with congressional oversight of such production under FISA) will sunset on December 31, 2009. However, Subsection 102(b) of P.L. 109-177 excepts from the application of the sunset provision any particular foreign intelligence investigations that began before December 31, 2009, or any criminal offenses or potential offenses which began or occurred before December 31, 2009. As to those particular investigations or offenses, applicable provisions would continue in effect after December 31, 2009.”).

[12] Subchapter E: Reporting Requirement (50 U.S.C. § 1871).

[13] Subchapter F: Additional Procedures Regarding Certain Persons Outside the United States (50 U.S.C. §§ 1881-1881g).

[14] The Protect America Act, P.L. 110-55; see also 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 (“On August 5, 2007, P.L. 110-55, the Protect America Act of 2007, was signed into law by President Bush, after having been passed by the Senate on August 3 and the House of Representatives on August 4. The measure, introduced by Senator McConnell as S. 1927 on August 1, makes a number of additions and modifications to the Foreign Intelligence Surveillance Act of 1978 (FISA), as amended, 50 U.S.C. §§ 1801 et seq., adds additional reporting requirements, and sunsets in 180 days. This report describes the provisions of P.L. 110-55, discusses its possible impact on and parallels to existing law, and summarizes the legislative activity with respect to S. 1927, H.R. 3356, and S. 2011. The Foreign Intelligence Surveillance Act of 1978 was enacted in response both to the Committee to Study Government Operations with Respect to Intelligence Activities (Church Committee) revelations with regard to past abuses of electronic surveillance for national security purposes and to the somewhat uncertain state of the law on the subject. In creating a statutory framework for the use of electronic surveillance to obtain foreign intelligence information, the Congress sought to strike a balance between national security interests and civil liberties. Critical to an understanding of the FISA structure are its definitions of terms such as “electronic surveillance” and “foreign intelligence information.” P.L. 110-55 limits the construction of the term “electronic surveillance” so that it does not cover surveillance directed at a person reasonably believed to be located outside the United States. It also creates a mechanism for acquisition, without a court order under a certification by the Director of National Intelligence (DNI) and the Attorney General, of foreign intelligence information concerning a person reasonably believed to be outside the United States. The Protect America Act provides for review by the Foreign Intelligence Surveillance Court (FISC) of the procedures by which the DNI and the Attorney General determine that such acquisitions do not constitute electronic surveillance. In addition, P.L. 110-55 authorizes the Attorney General and the DNI to direct a person with access to the communications involved to furnish aid to the government to facilitate such acquisitions, and provides a means by which the legality of such a directive may be reviewed by the FISC petition review pool. A decision by a judge of the FISC petition review pool may be appealed to the Foreign Intelligence Surveillance Court of Review, and review by the U.S. Supreme Court may be sought by petition for writ of certiorari.”).

[15] 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).

[16] The Protect America Act of 2007 inserted a clarification into FISA 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. Section 105B contained the now repealed procedures that were in effect during the 6-month U.S. citizen intelligence collection extravaganza. FISA § 105B, 50 U.S.C. § 1805b (a) (2007), repealed by FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436 (“Notwithstanding any other law, the Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States if the Director of National Intelligence and the Attorney General determine, based on the information provided to them, that—(1) there are reasonable procedures in place for determining that the acquisition of foreign intelligence information under this section concerns persons reasonably believed to be located outside the United States, and such procedures will be subject to review of the Court pursuant to section 105C of this Act [50 U.S.C. § 1805c]; (2) the acquisition does not constitute electronic surveillance; (3) the acquisition involves obtaining the foreign intelligence information from or with the assistance of a communications service provider, custodian, or other person (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; (4) a significant purpose of the acquisition is to obtain foreign intelligence information; and (5) the minimization procedures to be used with respect to such acquisition activity meet the definition of minimization procedures under section 101(h) [50 U.S.C. § 1801(h)]. This determination shall be in the form of a written certification, under oath, supported as appropriate by affidavit of appropriate officials in the national security field occupying positions appointed by the President, by and with the consent of the Senate, or the Head of any Agency of the Intelligence Community, unless immediate action by the Government is required and time does not permit the preparation of a certification. In such a case, the determination of the Director of National Intelligence and the Attorney General shall be reduced to a certification as soon as possible but in no event more than 72 hours after the determination is made.”); see also 50 U.S.C. § 1805b (b) (2007) (“A certification under subsection (a) is not required to identify the specific facilities, places, premises, or property at which the acquisition of foreign intelligence information will be directed.”); see also 50 U.S.C. § 1805b (c) (2007) (“The Attorney General shall transmit as soon as practicable under seal to the court established under section 103(a) [50 U.S.C. § 1803(a)] a copy of a certification made under subsection (a). Such certification shall be maintained under security measures established by the Chief Justice of the United States and the Attorney General, in consultation with the Director of National Intelligence, and shall remain sealed unless the certification is necessary to determine the legality of the acquisition under section 105B [50 U.S.C. § 1805b].”); see also 50 U.S.C. § 1805b (d) (2007) (“An acquisition under this section may be conducted only in accordance with the certification of the Director of National Intelligence and the Attorney General, or their oral instructions if time does not permit the preparation of a certification, and the minimization procedures adopted by the Attorney General. The Director of National Intelligence and the Attorney General shall assess compliance with such procedures and shall report such assessments to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate under section 108(a) [50 U.S.C. § 1808(a)].); see also 50 U.S.C. § 1805b (e) (2007) (“With respect to an authorization of an acquisition under section 105B [50 U.S.C. § 1805b], the Director of National Intelligence and Attorney General may direct a person to—(1) immediately provide the Government with all information, facilities, and assistance necessary to accomplish the acquisition in such a manner as will protect the secrecy of the acquisition and produce a minimum of interference with the services that such person is providing to the target; and (2) maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the acquisition or the aid furnished that such person wishes to maintain.”); see also 50 U.S.C. § 1805b (f) (2007) (“The Government shall compensate, at the prevailing rate, a person for providing information, facilities, or assistance pursuant to subsection (e).”); see also 50 U.S.C. § 1805b (g) (2007) (“In the case of a failure to comply with a directive issued pursuant to subsection (e), the Attorney General may invoke the aid of the court established under section 103(a) [50 U.S.C. § 1803(a)] to compel compliance with the directive. The court shall issue an order requiring the person to comply with the directive if it finds that the directive was issued in accordance with subsection (e) and is otherwise lawful. Failure to obey an order of the court may be punished by the court as contempt of court. Any process under this section may be served in any judicial district in which the person may be found.”); see also 50 U.S.C. § 1805b (h) (2007) (“(1) (A) A person receiving a directive issued pursuant to subsection (e) may challenge the legality of that directive by filing a petition with the pool established under section 103(e)(1) [50 U.S.C. § 1803(e)(1)]. (B) The presiding judge designated pursuant to section 103(b) [50 U.S.C. § 1803(b)] shall assign a petition filed under subparagraph (A) to one of the judges serving in the pool established by section 103(e)(1) [50 U.S.C. § 1803(e)(1)]. Not later than 48 hours after the assignment of such petition, the assigned judge shall conduct an initial review of the directive. If the assigned judge determines that the petition is frivolous, the assigned judge shall immediately deny the petition and affirm the directive or any part of the directive that is the subject of the petition. If the assigned judge determines the petition is not frivolous, the assigned judge shall, within 72 hours, consider the petition in accordance with the procedures established under section 103(e)(2) [50 U.S.C. § 1803(e)(2)] and provide a written statement for the record of the reasons for any determination under this subsection. (2) A judge considering a petition to modify or set aside a directive may grant such petition only if the judge finds that such directive does not meet the requirements of this section or is otherwise unlawful. If the judge does not modify or set aside the directive, the judge shall immediately affirm such directive, and order the recipient to comply with such directive. (3) Any directive not explicitly modified or set aside under this subsection shall remain in full effect.”); see also 50 U.S.C. § 1805b (i) (2007) (“The Government or a person receiving a directive reviewed pursuant to subsection (h) may file a petition with the Court of Review established under section 103(b) [50 U.S.C. § 1803(b)] for review of the decision issued pursuant to subsection (h) not later than 7 days after the issuance of such decision. Such court of review shall have jurisdiction to consider such petitions and shall provide for the record a written statement of the reasons for its decision. On petition for a writ of certiorari by the Government or any person receiving such directive, the record shall be transmitted under seal to the Supreme Court, which shall have jurisdiction to review such decision.”); see also 50 U.S.C. § 1805b (j) (2007) (“Judicial proceedings under this section shall be concluded as expeditiously as possible. The record of proceedings, including petitions filed, orders granted, and statements of reasons for decision, shall be maintained under security measures established by the Chief Justice of the United States, in consultation with the Attorney General and the Director of National Intelligence.”); see also 50 U.S.C. § 1805b (k) (2007) (“All petitions under this section shall be filed under seal. In any proceedings under this section, the court shall, upon request of the Government, review ex parte and in camera any Government submission, or portions of a submission, which may include classified information.”); see also 50 U.S.C. § 1805b (l) (2007) (“Notwithstanding any other law, no cause of action shall lie in any court against any person for providing any information, facilities, or assistance in accordance with a directive under this section.”); see also 50 U.S.C. § 1805b (m) (2007) (“A directive made or an order granted under this section shall be retained for a period of not less than 10 years from the date on which such directive or such order is made.”).

[17] See generally Gina Marie Stevens & Charles Doyle, Congressional Research Serv., Privacy: An Abbreviated Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-327_9-2-2008.pdf (“The Protect America Act (P.L. 110-55), which has since expired, granted the Attorney General and the Director of National Intelligence the power, under limited conditions, to authorize gathering foreign intelligence information, including by electronic surveillance, (for up to a year) relating to persons believed to be overseas. In order to exercise that power, the Attorney General and the Director of National Intelligence were required to certify under oath that the collection effort involved: (1) procedures reasonably calculated to assure that the information sought concerned a person outside the United States; (2) communications to which service providers or others had access; (3) a desire, at least in significant part, to gather foreign intelligence information; (4) accompanying minimization procedures; and (5) no electronic surveillance other than that directed at a person reasonably believed to be abroad, 50 U.S.C. 1805b(a)(expired). That having been done or in emergency situations with their oral approval, the Attorney General and Director of National Intelligence might direct the communications providers, or others with access, to immediately assist in the gathering of the foreign intelligence information in a manner least disruptive of service to the target and under confidentiality restrictions imposed by the Attorney General and the Director of National Intelligence. The directive came with the promise of compensation at prevailing rates as well as immunity from civil liability and was enforceable through the contempt power of the FISA court. Recipients were entitled to seek judicial modification of a directive, issued contrary to the statute or otherwise unlawfully, in the FISA court under expedited procedures. The FISA court was also tasked with the responsibility of reviewing the procedures crafted to ensure that the authority was only invoked with respect to persons reasonably believed to be found overseas. Should the court have determined that the procedures were clearly erroneous, the government was free to amend them or to appeal the determination initially to the Foreign Intelligence Surveillance Court of Review and then to the Supreme Court.”).

[18] But see Elizabeth B. Bazan, Congressional Research Serv., The Foreign Intelligence Surveillance Act: An Overview of Selected Issues (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL34279_7-7-2008.pdf (“Generally, the full extent of Fourth Amendment protections attach to the privacy interests of U.S. persons within the United States. Fourth Amendment protections also attach to U.S. citizens abroad. However, the operation of its protections outside the United States may differ from that in the United States due to the fact that a citizen abroad may not have the same expectation of privacy. In addition, the Warrant Clause of the Fourth Amendment may not apply outside the United States where U.S. magistrates have no jurisdiction. A determination whether interception of a communication abroad is lawful turns upon the law of the country where the interception occurs, so, depending upon location, the rights available may differ significantly. In addition, the availability of Fourth Amendment protections are affected by whom the search was executed, and the extent of any U.S. role. If the U.S. plays no role, then the Fourth Amendment does not attach, and the exclusionary rule does not apply to evidence obtained by or derived from such a search unless the foreign conduct “shocks the conscience.” On the other hand, if warrantless electronic surveillance targeted at a U.S. citizen’s communications is conducted abroad for the purpose of gathering foreign intelligence by U.S. officials, the U.S. district court in United States v. Bin Laden, 126 F. Supp. 2d 264, 277 (S.D.N.Y. 2000), has held that it will be deemed reasonable if it is authorized by the President, or the Attorney General pursuant to the President’s delegation, and the surveillance was conducted “primarily for foreign intelligence purposes and . . . targets foreign powers or their agents.””) (internal footnotes omitted).

[19] Subchapter G: Protection of Persons Assisting the Government (50 U.S.C. §§ 1885-1885c).

[20] See Edward C. Liu, Cong. Research Serv., Retroactive Immunity Provided by the FISA Amendments Act of 2008 (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL34600_7-25-2008.pdf (“On July 10, 2008, P.L. 110-261, entitled the FISA Amendments Act of 2008, was signed into law.  Although many of the changes enacted by the FISA Amendments Act were controversial, one particularly contentious issue was whether to grant retroactive immunity to telecommunications providers that may have facilitated warrantless surveillance by the federal government under a Terrorist Surveillance Program between 2001 and 2007.  Proponents of retroactive immunity argued that it was necessary to assure private cooperation with critical intelligence investigations.  On the other hand, opponents of retroactive immunity argued that its inclusion undermined the statutory penalties that were designed to deter unlawful intrusions into individual liberties.”).

[21] See Edward C. Liu, Cong. Research Serv., Retroactive Immunity Provided by the FISA Amendments Act of 2008 (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL34600_7-25-2008.pdf (“Plaintiffs suing telecommunications providers, and others, argue that the TSP was not lawful under either Title III or FISA. Many of the details of the TSP remain classified, but it apparently authorized the surveillance of international communications without a judicially issued warrant if there was a “reasonable basis to conclude that one party to the conversation [was] a member of al Qaeda.” That determination appears to have been made by intelligence officials, and was reported to have been reviewed every 45 days. In contrast, Title III and FISA only allow warrantless surveillance for shorter periods of time in most circumstances. Statements by officials in the Bush Administration appear to acknowledge that the TSP was conceived and operated outside of the procedures authorized by either Title III or FISA.”) (internal footnotes omitted).

[22] See Edward C. Liu, Cong. Research Serv., Retroactive Immunity Provided by the FISA Amendments Act of 2008 (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL34600_7-25-2008.pdf (“In late 2005, the New York Times reported that the federal government had “monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people in the United States without warrants.” Subsequently, President Bush acknowledged that, after the attacks of September 11, 2001, he had authorized the National Security Agency to “intercept international communications into and out of the United States” by “persons linked to al Qaeda or related terrorist organizations” based upon “his constitutional authority to conduct warrantless wartime electronic surveillance of the enemy.” The revelation of the existence of the TSP aroused controversy because it appeared to run afoul of the general rule[22] that electronic surveillance by the federal government is unlawful unless conducted pursuant to the Foreign Intelligence Surveillance Act (FISA) or Title III of the Omnibus Crime Control and Safe Streets Act (Title III). In contrast, the Bush Administration’s position has been that such warrantless surveillance is lawful under the President’s constitutionally granted authority and the Authorization for Use of Military Force (AUMF) enacted by Congress in 2001. On Jan 17, 2007, a letter from the Attorney General to Congress indicated that “any electronic surveillance that was occurring as part of the Terrorist Surveillance Program [would] be conducted subject to the approval of the Foreign Intelligence Surveillance Court.”  Now discontinued, the TSP appears to have been active from shortly after September 11, 2001, to sometime in January of 2007.”) (internal footnotes omitted).

[23] See Edward C. Liu, Cong. Research Serv., Retroactive Immunity Provided by the FISA Amendments Act of 2008 (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL34600_7-25-2008.pdf (“As enacted, the FISA Amendments Act lays out a procedure for the Attorney General to bring about the dismissal of lawsuits alleging unlawful participation in the Terrorist Surveillance Program (TSP). In order for a suit to be dismissed by a court, the Attorney General must certify that the defendant provided assistance in connection with the TSP and was given written assurances that the program was authorized by the President and determined to be lawful.  The Attorney General could also certify that the alleged assistance was not in fact provided by the defendant.  All parties are permitted to submit documents and arguments relevant to dismissal which the court may consider.  Dismissal is only proper if the court finds, based upon its review, that the Attorney General’s certification is supported by ‘substantial evidence.’”).

[24] FISA, 50 U.S.C. § 1801 (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.”) (emphasis and underlining added).

[25] Of the 4 categories that qualify as “electronic surveillance” under FISA, 3 apply only to “communications.” The 4th definition applies to 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 “communication,” but it also contains the reasonable expectation or privacy loophole so that it is not considered to be “electronic surveillance” if officials can get the consent of a third-party. FISA, 50 U.S.C. § 1801 (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.”) (emphasis and underlining added).

[26] FISA, 50 U.S.C. § 1801 (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.”) (emphasis and underlining added).

 


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