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.

10

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.

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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