Intelligence Law School - Course 1: Lesson 4.8.1 Summary of Intelligence Law in the U.S. Code [HTML-Only]


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LESSON 4: STATUTORY LAW


4.8 Concluding Remarks on Statutory Law


4.8.1 Summary of Intelligence Law in the U.S. Code


Lecture Audio



Annotated Lecture Transcript

4.8.1 Summary of Intelligence Law in the U.S. Code

Well, that’s it for statutory law.

 

We’ve covered a lot of ground, but it was worth it.

Really quick, remember that the U.S. Code is where you’re going to be doing your statutory research.

It’s a codification of much of the Statutes at Large, which means that they’ve taken statutory sections and arranged them by topic.

I’ve arranged the substantive discussion of statutory intelligence law in Course 3 in order according to the law’s location in the U.S. Code.

This is to make it easy for you to see where everything fits into the legal framework of U.S. law, and so you can stay up to date with any changes in the law for decades to come.

All you have to do is learn about the Title in the relevant part of Course 3 in the full series—U.S. Intelligence Law: A Comprehensive Multimedia Introduction, available on IntelligenceLaw.com—and then update your understanding by finding the most recent version of the section U.S. Code.

You’ll be able to see immediately if the law has changed at all.  

Most of the time, it won’t have changed at all.

Sometimes it will have changed, but just a little.

Sometimes the changes will be substantial.

It won’t matter, though. By understanding how the statute was written before will help you understand how and why the law was changed.

You’ll be able to spot, like an expert, precisely what new powers or restrictions the government wanted to give itself by amending the original language of the statute.

You’ll know instantly if Americans are more protected or less protected under the new language.

 

That’ll be major-league expertise.

You’ll be practicing intelligence law in the big leagues once you’re able to do that.  

 

Ø  Title 50: Chapter 15: Principal Organic and Enabling Statutes: Remember that Title 50 is the most important Title of the U.S. Code in U.S. intelligence law.

o   It contains the two critically important chapters that are central to intelligence law.

   

o   Chapter 15: The National Security Act of 1947: The first is Chapter 15, which contains the National Security Act of 1947.

§  It contains many of the most important organic statutes and amendatory enabling statutes for agencies in the U.S. intelligence community.

 

   

Ø  Title 50: Chapter 36: Principal Framework Statute:

o   Chapter 36: The Foreign Intelligence Surveillance Act of 1978: The second important chapter is Chapter 36, which is the codification of FISA—the most important framework statute in intelligence law.

§  The Foreign Intelligence Surveillance Act of 1978, or FISA, governs certain methods of domestic foreign intelligence gathering, most notably “electronic surveillance.”

 

Ø  Title 18: Penal Statutes for Intelligence Crimes and Framework Statutes for Criminal Procedure: Title 18 is also important.

o   It contains most penal statutes for relevant federal crimes as well as framework statutes relevant to criminal procedure.

o   It has criminal statutes like the Espionage Act, and criminal procedure statutes like Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III).

§  Remember that Title III is like FISA for criminal investigations.

§  The Appendix of Title 18 also has the Classified Information Procedures Act. 

   

Ø  Title 5: General Management Statutes: The last major Title of the U.S. Code that is relevant to intelligence law is Title 5: Government Organization and Employees.

o   Title 5 is important because it has most of the general management statutes that govern all federal agencies across the board.

o   It contains:

§  Administrative procedure statutes like:

·         The Administrative Procedure Act;

§  Open government statutes like:

·         The Freedom of Information Act;

·         Privacy Act; and

·         Government in the Sunshine Act.

§  Ethics and oversight statutes like:

·         The Inspector General Act;

·         The Ethics in Government Act; and

·         The Federal Advisory Committee Act.

§  And general civil service statutes governing human resources management in federal agencies.

 

There are also relevant provisions scattered across many other Titles of the U.S. Code.

 

Ø  Title 44: Public Printing and Documents: Title 44: Public Printing and Documents, contains records management and retention statutes like the Federal Records Act and Presidential Records Act.

   

Ø  Title 47: Chapter 9: Interception of Digital and Other Communications: Title 47, Chapter 9 is where CALEA is codified. [1]

o   Communications Assistance for Law Enforcement Act (CALEA): The Communications Assistance for Law Enforcement Act (CALEA) is the statute that requires all telecom companies to ensure their equipment allows government investigators to wiretap or maintain a pen register on the communications of any of their subscribers.[2]

 

Footnotes

[1] 47 U.S.C. § 1002(a) (“Assistance capability requirements: Capability requirements.  Except as provided in subsections (b), (c), and (d) of this section and sections 108(a) and 109(b) and (d) [47 U.S.C. §§ 1007(a) and 1008(b)], a telecommunications carrier shall ensure that its equipment, facilities, or services that provide a customer or subscriber with the ability to originate, terminate, or direct communications are capable of-- (1) expeditiously isolating and enabling the government, pursuant to a court order or other lawful authorization, to intercept, to the exclusion of any other communications, all wire and electronic communications carried by the carrier within a service area to or from equipment, facilities, or services of a subscriber of such carrier concurrently with their transmission to or from the subscriber's equipment, facility, or service, or at such later time as may be acceptable to the government; (2) expeditiously isolating and enabling the government, pursuant to a court order or other lawful authorization, to access call-identifying information that is reasonably available to the carrier-- (A) before, during, or immediately after the transmission of a wire or electronic communication (or at such later time as may be acceptable to the government); and (B) in a manner that allows it to be associated with the communication to which it pertains, except that, with regard to information acquired solely pursuant to the authority for pen registers and trap and trace devices (as defined in section 3127 of title 18, United States Code), such call-identifying information shall not include any information that may disclose the physical location of the subscriber (except to the extent that the location may be determined from the telephone number); (3) delivering intercepted communications and call-identifying information to the government, pursuant to a court order or other lawful authorization, in a format such that they may be transmitted by means of equipment, facilities, or services procured by the government to a location other than the premises of the carrier; and (4) facilitating authorized communications interceptions and access to call-identifying information unobtrusively and with a minimum of interference with any subscriber's telecommunications service and in a manner that protects-- (A) the privacy and security of communications and call-identifying information not authorized to be intercepted; and (B) information regarding the government's interception of communications and access to call-identifying information.”).

[2] See Patricia Moloney Figliola, Congressional Research Serv., Digital Surveillance: The Communications Assistance for Law Enforcement Act (2007), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30677_6-8-2007.pdf (“The Communications Assistance for Law Enforcement Act (CALEA, P.L. 103414, 47 U.S.C. 1001-1010), enacted October 25, 1994, is intended to preserve the ability of law enforcement officials to conduct electronic surveillance effectively and efficiently despite the deployment of new digital technologies and wireless services that have altered the character of electronic surveillance. CALEA requires telecommunications carriers to modify their equipment, facilities, and services, wherever reasonably achievable, to ensure that they are able to comply with authorized electronic surveillance actions.”).

 


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