Class #5: Electronic Surveillance: The Statutory Framework

Professor Emily BermanTuesday, September 9, 2014

Tuesday, September 9, 2014

National Security in the news

Wrap up constitutional framework for surveillance•The Keith case•Truong

The Foreign Intelligence Surveillance Act (FISA)•How does FISA work? (United State v. Rosen)

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“The President is authorized to us all necessary and appropriate force . . . 1. . . . to defend the national security of the United States against

the threat posed by the organization called the Islamic State.”

2. . . . against those countries, organizations, or persons associated with or supporting terrorist groups [listed here] and any other emerging regional terrorist groups that share a [these groups’] violent extremist ideology in order to eliminate [them] and prevent any future acts of international terrorism against the US or its allies.”

3. . . . against [ISIL] in order to prevent terrorist attacks on the people and interests of the United States and our allies.” Explicitly does not include authorization for the use of

rotational ground forces and sunsets (expires) three years after the date of enactment. 3

Keith, 1972, Powell, J.:• Electronic surveillance for domestic security

reasons requires ex ante judicial approval.• National security warrant requirement may

differ from traditional criminal warrant requirement.

Truong, 1982, 4th Circuit:• Searches/surveillance does not require a

warrant, when (1) the target is a foreign power or its agent & (2) the primary purpose of the search/surveillance is to collect foreign intelligence. 4

• Prior judicial approval required (Keith)

Domestic Intelligence Surveillance

• No prior judicial approval required (Truong)

Foreign Intelligence

Surveillance for FI Purpose

• Prior judicial approval required (Truong)

Foreign Intelligence

Surveillance for Prosecution

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Foreign Intelligence Surveillance Act (FISA): • Enacted in 1978 – a/k/a “traditional FISA.” • Authorized an alternative ex ante

surveillance approval regime as recommended in Keith.

Protect America Act of 2007(PAA): • Expired after 6 months.• Authorized “basket” warrants.

FISA Amendments Act of 2008 (FAA): • Continued “basket” warrant regime.• Includes the controversial “section 702.” 6

Foreign Intelligence Surveillance Act (FISA): • Enacted in 1978 – a/k/a “traditional FISA.” • Authorized an alternative ex ante

surveillance approval regime as recommended in Keith.

Two things we’ll look at today:1. Basic mechanics of traditional FISA –

very complicated statute. This could be a bit tedious.

2. Constitutional constraints (if any) that have bearing on traditional FISA. 7

Facts:• Franklin (DOD employee) gave classified

information to Rosen and Weissman.• R & W gave it to media & foreign officials.• Defendants sought to suppress evidence at

trial.Holding: Surveillance was lawful• (1) There was probable cause that

defendants were AFPs.• (2) Partial reliance on 1A activities is ok.• (3) Minimization procedures were ok.

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Rosen involves at least 3 potential targets:• Target #1: An official at the Israeli

embassy to whom Rosen passed information. • Target #2: Rosen, a lobbyist.• Target #3: A journalist to whom Rosen

has passed information. Statutory provision tells us who may be

targeted: 50 U.S.C. § 1801 (a) & (b) (586; 592-93)

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First consider the Israeli embassy employee – can the government target her under FISA?Yes. 1801(b)(1)(A) – she would be an AFP.

What if she was a dual US/Israeli citizen? Would that change anything?Yes. She would be a USP and could only be targeted under 1801(b)(2).

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How does the court find that Rosen, who works for AIPAC, was a proper target?He is a USP who “knowingly engages in clandestine intelligence gathering” for a FP under 1801(b)(2)(A) (586).

What PC must the government show?(1) Evidence of clandestine intelligence gathering and (2) evidence that Rosen is acting on behalf of a FP.

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What about a lobbyist who is passing information to al Qaeda?Under 1801(a)(4), al Qaeda qualifies as a foreign power (586).

What about a journalist who receives and publishes information he is given?Perhaps. Government cannot rely “solely” on activities protected by the 1A to target a USP under 1805(a)(2)(A) (586, 588).

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The government must explain in its application to the FISC the kind of evidence being sought and the AG must “certify” that it is FII. (18 U.S.C. § 1804(a)(6)).

If the information must be FII, does that mean it cannot be used in a prosecution?

• (584-85): “FISA explicitly allows the use of evidence derived from FISA surveillance and searches in criminal prosecutions. See50 U.S.C. §§ 1806(k) & 1825(k).”

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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 US

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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. 15

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?Yes, if his actions meet the definition of “international terrorism” in § 1801(c).

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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 USfor information . . . That would require a warrant for law enforcement purposes. 17