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Foreign Intelligence Surveillance Act (FISA)

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  • EPIC Obtains Secret Attorney General Reports on Electronic Surveillance: As a result of an FOIA lawsuit, EPIC has obtained copies of the Attorney General Reports on the government's electronic surveillance activities. These reports have been submitted to Congress every six months since 2001 but have never before been disclosed to the public. These reports include new details about government collection of telephone and Internet records. The reports include the number of US persons targeted for "Pen Register" surveillance under the Foreign Intelligence Surveillance Act. The reports also contain noncompliance incidents and significant foreign intelligence court opinions, but those details have been withheld by the Justice Department. The documents obtained by EPIC also show that the Justice Department told Congress that the collection of telephone subscriber information would decrease, even after the section 215 bulk collection program began. The case is EPIC v. Dept. of Justice, No. 13-961. For more information, see EPIC v. DOJ - FISA Pen Registers and EPIC: FISA Stats. (Mar. 19, 2014)
  • In FOIA Lawsuit, EPIC Obtains Secret Reports on Data Collection: In a Freedom of Information Act lawsuit, EPIC has obtained reports that detail the number of times the Surveillance Court authorized the use of techniques that gather the telephone numbers and metadata of phone customers and Internet users. The previously secret reports obtained by EPIC cover the period between 2000 and 2013. The reports reveal a dramatic increase in the use of these techniques in 2004 and then a significant reduction in 2008, likely the consequence of a shift to other investigative techniques. The documents show that nearly all applications to the Surveillance Court were approved without modifications. In 2013, EPIC petitioned the Supreme Court to end the bulk telephone record collection program. Former members of the Church Committee and dozens of legal scholars supported the EPIC petition. For more information see: EPIC v. Department of Justice - Pen Register Reports, EPIC: Foreign Intelligence Surveillance Court Orders 1979-2012, and In re EPIC. (Mar. 3, 2014)
  • Federal Communications Commission Seeks Public Comment to Protect Phone Record Privacy: The Federal Communications Commission has invited public comments on a petition requesting the FCC to rule that the sale of consumer phone records to the government is a violation of the federal Communications Act. EPIC joined the petition, which was organized by Public Knowledge. In 2013, EPIC urged the FCC to determine whether AT&T violated the Communications Act when it sold private consumer call detail information to the Drug Enforcement Administration and Central Intelligence Agency. In 2013 EPIC also wrote to the FCC to explain that Verizon had likely violated the Communications Act when it disclosed telephone records to the NSA. Public comments on the petition are due January 17, 2014 and reply comments are due February 3, 2014. For more information, see EPIC: CPNI (Customer Proprietary Network Information), and EPIC: Foreign Intelligence Surveillance Act. (Jan. 7, 2014)
  • Senate Confirms Judge Wald for Privacy Oversight Board: The Senate confirmed the reappointment of Judge Patricia M. Wald to the Privacy and Civil Liberties Oversight Board. Judge Wald's current term was set to expire next month, but President Obama re-nominated her on March 21, 2013. Last year, EPIC recommended that the Oversight Board, consistent with its mandate, pursue a broad agenda, including (1) suspension of the Fusion Center Program ; (2) limiting closed-circuit television surveillance; (3) eliminating the use of body scanners; (4) establishing privacy regulations for drones; (5) improving Information Sharing Environment (ISE) and Suspicious Activity Reporting (SARS) Standards; and (6) Privacy Act adherence. More recently, EPIC addressed the Board at a workshop on NSA Surveillance. And in response to a public rulemaking, EPIC also provided extensive comments on a proposed rule governing the Board's Freedom of Information Act practices. The Board adopted nearly all of EPIC's recommendations on transparency. For more information, See EPIC: Foreign Intelligence Surveillance Act and EPIC: Open Government. (Dec. 13, 2013)
  • Presidential Task Force to Recommend Changes at NSA : The Review Group on Intelligence and Communications Technologies, established to recommend surveillance reforms, will send a final report to the President this Sunday. According to one news article, the task force will recommend putting a civilian leader in charge of NSA, separating out the code-breaking "Information Assurance Directorate," and splitting the U.S. Cyber Command off into a separate military unit. The Review Group will also recommend new limits on the NSA’s ability to search telephone call records, proposing that telephone records be stored with a third party rather than the NSA. The group will also recommend safeguards for the data of European citizens, and restrictions on the use of National Security Letters. Earlier this year, EPIC filed a petition with the U.S. Supreme Court, supported by legal scholars and former members of the Church Committee, arguing that the NSA bulk collection program was unlawful. For more information, see EPIC: Foreign Intelligence Surveillance Act, EPIC: Foreign Intelligence Surveillance Act Reform, and EPIC: In re EPIC. (Dec. 13, 2013)
  • EPIC Supports Petition Urging FCC to Protect Phone Record Privacy: EPIC has joined a petition to the Federal Communications Commission, organized by Public Knowledge, that asks the FCC to rule that the sale of consumer phone records to the government is a violation of the federal Communications Act. Last month, EPIC urged the FCC to determine whether AT&T violated the Communications Act when it sold private consumer call detail information to the Drug Enforcement Administration and Central Intelligence Agency. And in June, following the initial Snowden disclosure, EPIC wrote to the FCC to explain that Verizon had likely violated the Communications Act when it disclosed telephone records to the NSA. EPIC has also long supported the FCC's consumer privacy enforcement authority, filing amicus briefs in significant cases, including US West v. FCC and NCTA v. FCC, to defend the agency’s privacy regulations. For more information, see EPIC: CPNI (Customer Proprietary Network Information), EPIC: Foreign Intelligence Surveillance Act. (Dec. 11, 2013)
  • EPIC Asks Federal Court to Require Immediate Release of Government Surveillance Reports: EPIC has filed a Freedom of Information Act lawsuit for the reports that detail the NSA's collection of call record information from US telephone companies. Citing the Department of Justice's failure to comply with EPIC original EPIC's FOIA Request and the urgency to inform the public, EPIC has also filed a motion for a preliminary injunction, asking a federal judge to rule within 20 days on EPIC’s legal claims. EPIC is seeking the reports that the Justice Department has routinely prepared for Congress but never made available to the public. The Foreign Intelligence Surveillance Court, relying on these reports, has approved the bulk, suspicionless collection of Internet and e-mail data, which is now widely debated. For more information, see EPIC: EPIC v. DOJ (Pen Register / Trap and Trace). (Dec. 9, 2013)
  • EPIC Urges FCC to Investigate AT&T’s Practice of Selling Consumer Phone Records: In a letter to Federal Communications Commission Chairman Tom Wheeler, EPIC urged the FCC to determine whether AT&T violated the Communications Act when it sold private consumer call detail information to the Drug Enforcement Administration and Central Intelligence Agency. EPIC's letter follows an earlier letter where EPIC asked the FCC to resolve whether Verizon violated the Communications Act when it released consumer call detail information to the National Security Agency. EPIC's letter also informed the Commission that the National Association of Regulatory Utility Commissioners has issued a draft resolution underscoring the crucial role of the FCC in protecting consumer information. For more information, see EPIC: In re EPIC and EPIC: Foreign Intelligence Surveillance Act. (Nov. 18, 2013)
  • Leahy and Sensenbrenner Introduce USA FREEDOM Act: The Democratic Chair of the Senate Judiciary Committee and the Republican author of the Patriot Act have introduced the USA FREEDOM Act, which would reform the Foreign Intelligence Surveillance Act and limit NSA surveillance activities. A bi-partisan coalition, including 17 Senators and 70 Members of Congress, have joined as original co-sponsors. Key provisions of the FREEDOM Act increase transparency of intelligence activities, prevent end-runs around the FISA Court, and improve public reporting. In 2012 EPIC testified before the House Judiciary Committee about the need to reform FISA and to improve oversight of the FISA court. The FREEDOM Act also ends the controversial bulk phone records collection program. EPIC has brought a challenge in the Supreme Court to the phone records program, explaining that it is unlawful under current law. For more information, see EPIC: In re EPIC and EPIC - Foreign Intelligence Surveillance Act. (Oct. 29, 2013)
  • Government Responds to EPIC's Supreme Court Challenge of NSA Telephone Record Program: The Solicitor General has filed a response to EPIC's challenge to the NSA's telephone record collection program. In July, EPIC petitioned the Supreme Court to vacate the order of the Foreign Intelligence Surveillance Court that requires Verizon to turn over all telephone records to the NSA. EPIC argued that the Intelligence Court exceeded its legal authority and could not compel a telephone company to disclose so much personal information unrelated to a foreign intelligence investigation. Legal scholars and former Members of Congress filed briefs in support of EPIC's petition, including privacy and national security scholars, constitutional scholars, federal courts scholars, and members of the Church Committee. Congressman James Sensenbrenner, the primary author of the Patriot Act, has said that the telephone records collection program was never authorized by Section 215. For more information, see In re EPIC. (Oct. 14, 2013)
  • Federal Intelligence Court Rules Warrantless Wiretapping Legal. The Foreign Intelligence Surveillance Court of Review has ordered the release of a redacted opinion. The federal intelligence court ruled in August, 2008 that warrantless wiretapping of international phone calls and the interception of e-mail messages were permissible. Giving support to the Protect America Act, the Court found that "foreign intelligence surveillance possesses characteristics that qualify" for an exception in the interest of "national security". For more information, see EPIC's page on Foreign Intelligence Surveillance Act. (Jan. 15)
  • Telecom Immunity "Compromise" Okays Unaccountable Warrantless Surveillance. White House and Congressional officials have struck a deal (pdf) in ongoing debates on updating the Foreign Intelligence Surveillance Act (FISA). The deal will effectively end court inquiry into the President's warrantless surveillance program. Courts will be bound to follow the President's determination that the program was legal, rather than actually inquire into the program and judge the actions of the President and the Telecommunications companies. The proposal grants an expansion of warrantless surveillance powers from last year's Protect America Act until 2012, and requires that Inspectors General inquire into the warrantless surveillance program. Senators Leahy and Feingold have expressed deep opposition. (June 19)
  • FISA Orders Up, Government Reporting on National Security Letters Begins. According to the 2007 FISA report, the Foreign Intelligence Surveillance Court approved 2,370 application to conduct electronic surveillance and physical searches in the United States in 2007, up from 2,176 applications approved in 2006. For the first time, the report includes information regarding the total number of requests made by the Department of Justice with National Security Letter authority for information concerning U.S. persons. in 2006, the government made approximately 12,583 NSL requests for information concerning 4,790 U.S. persons. The 2007 NSL statistics are expected later this year. (May 1)
  • House Holds Fast on Privacy Law Enforcement, President's Unconstitutional Warrantless Surveillance Powers to Expire. The House of Representatives will recess this Thursday, allowing the Protect America Act to expire on Saturday. That law, passed in August, expanded the warrantless surveillance powers of the President. The White House also wants legal immunity for telephone companies that participated in the warrantless surveillance program. The House last year passed the RESTORE Act, which rejected the effort to gut the federal wiretap law. After extensive White House lobbying, the Senate this week passed S. 2248 with the immunity provision, but the House said no to the White House effort to adopt the Senate bill. EPIC and other groups are suing the Department of Justice for documents on the legal justification for the warrantless surveillance program.
  • Security Experts Warn That FISA Changes Weaken US Security. In a report in IEEE Security & Privacy, leading experts in computer security warn that the Protect America Act -- enacted as a temporary measure last August and the continuing subject of attention -- could make the United States vulnerable to attack. The paper, "Risking Communications Security: Potential hazards of the Protect America Act (pdf)," warns that warrantless wiretapping creates serious security risks, including the "danger of exploitation of the system by unauthorized users, danger of criminal misuse by trusted insiders, and danger of misuse by government agents." Congress continues to debate FISA changes, including making permanent the Protect America Act. (Jan. 31)

  • House, Key Senate Committee Reject Immunity for Telephone Companies that Violated Wiretap Law. House and Senate proposals to reform the Foreign Intelligence Surveillance Act (FISA) advanced without the controversial immunity provision. Senator Leahy, following action in the Senate Judiciary Committee on FISA legislation, said "When we give the government sweeping surveillance powers, there need to be clear rules and checks and balances to prevent abuses against the American people." Meanwhile, the House passed the RESTORE Act, which establishes new oversight for domestic surveillance and does not allow retroactive immunity for past violations of law. The Protect America Act, which these bills replace, is set to expire in February of 2008. (Nov. 16)
  • Congress Opens Investigation Into Warrantless Surveillance.The House Committee on Energy and Commerce has launched an investigation into the National Security Agency's domestic warrantless wiretapping program and the involvement of the telephone companies. "Congress has a duty to determine what occurred and also to examine the difficult position of the phone companies who may have been asked by the government to violate the privacy of their customers without the assurance of liability protections," said Committee Chairman John Dingell. Last year, EPIC joined almost 40 organizations in a statement (pdf) urging the Committee to investigate the program's possible violations of the privacy provisions of the Communications Act. (Oct. 4)
  • Director of National Intelligence on The Record About Spy Programs. In an on the record discussion with the El Paso Times, Director of National Intelligence Mike McConnell revealed past and current surveillance activities, as well as details of the passage of the new FISA law. For the first time, an administration official confirmed that private sector companies illegally assisted with the President's domestic spying program. According to McConnel, a FISA court judge refused to authorize certain interceptions of wired communications without a warrant. Complaining that it took 200 man hours to craft a warrant, McConnel argued that surveillance of a foreigner in a foreign country should not be restricted by warrants. Per McConnell, this prompted the administration to introduce 66 pages of changes to FISA. The final version was only 11 pages long. McConnell discussed that he had problems with one alternative proposal, because on language concerning minimization, but he did not elaborate. (Aug. 24)
  • Congress Enacts Sweeping Changes to FISA Law. Following a frantic, week-long push by the White House to expand domestic spying and reduce judicial oversight, the Congress passed amendments to the Foreign Intelligence Surveillance Act that will permit warrantless surveillance of American citizens when one party to the conversation may be outside of the United States. It is the most dramatic change in the 30 year history of the FISA and will leave millions of Americans subject to electronic surveillance, without court review, regardless of whether they are suspected of any wrongdoing. However, the amendments will sunset in 180 days, which will provide an opportunity for further debate in Congress. (Aug. 6)

FISA Warrantless Surveillance Reauthorization

The Protect America Act of 2007 (text) made several significant changes to the structure of FISA surveillance. The Act became law on August 5th, 2007, and will expire -- with some exceptions -- six months from that date. Lawmakers will during this period be discussing the reauthorization of these changes or further changes to these surveillance powers. The Protect America Act altered the definition of electronic surveillance; created additional procedures for authorization of intelligence gathering on a program-wide basis; and set up a procedure for the courts to review those programs. These changes are set to expire six months after the Act going into effect, with some exceptions. Other proposals, rejected in favor of the final bill, include S. 2011, and H.R. 3356.

Protect America Act Changes

FISA's new section 105A declares that "nothing in the definition of electronic surveillance . . . shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States." Since the FISA court procedures govern the use of electronic surveillance, this change in definition removes such surveillance from the review of the FISA court. There may be "surveillance" that is "electronic," but if it does not fit into the FISA law's definition of "electronic surveillance" then the FISA court does not control it. This provision permits the warrantless surveillance of Americans when the surveillance is "directed at" someone believed to be outside the United States -- whether that person outside the United States is an American or not.

Section 105B creates a set of procedures for the administration to use when acquiring information that is not "electronic surveillance." The government must certify that the program has reasonable procedures in place for determining that the acquisition of information "concerns" persons reasonably believed to be outside of the United States.The government must further certify that the acquisition is not "electronic surveillance." Certifications are also required that minimization procedures are followed and that "a significant purpose" of the acquisition is to obtain foreign intelligence information. The benefit the administration gains from following this procedure is that holders of information, such as telecommunicatiosn companies, are forced to comply. The holders of information are also immunized from lawsuits for having provided this information, notwithstanding any privacy laws that would otherwise hold the holders liable for releasing the information. These certifications are valid for up to a year.

Review of the procedures in 105B is provided by section 105C. The FISA court can review the administration's determination to see if it is "clearly erroneous." If it overturns the program, then the government can appeal to the FISA "Court of Review" and on to the Supreme Court. Even if overturned, the program can continue while these reviews and appeals are pending. The changes to the law are set to expire six months after enactment. However, any programs in place at the time of the expiration can continue their full course of up to a year.

News Stories on Protect America Act Changes:

  • Spy Master Admits Error, Newsweek, 9/12/2007. Director of National Intelligence Mike McConnel told Congress that the Protect America Act changes helped to stop a terror polot in Germany. He has since withdrawn that statement.
  • Transcript: Debate on Foreign Intelligence Surveillance Act, El Paso Times, 8/22/07. The Director of National Intelligence, Mike McConnel, goes on the record to discuss the FISA passage, private sector participation in illegal domestic spying, and the scope of the surveillance system.

Resources on Protect America Act Changes and Debate:

Overview of FISA

For ordinary criminal investigations, communications interception is viewed as a grave intrusion on the rights of privacy and speech. In United States v. U.S. District Court, 407 U.S. 297 (1972), the Supreme Court stated:

"Given these potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens."

In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA), which establishes a separate legal regime for "foreign intelligence" surveillance. Title III (the "Wiretap Statute) outlines the strict guidelines regulating ordinary law enforcement surveillance, while FISA regulates the government's collection of "foreign intelligence" information in furtherance of U.S. counterintelligence. FISA was initially limited to electronic eavesdropping and wiretapping. In 1994 it was amended to permit covert physical entries in connection with "security" investigations, and in1998, it was amended to permit pen/trap orders. FISA can also be used to obtain some business records.

Under the Fourth Amendment, a search warrant must be based on probable cause to believe that a crime has been or is being committed. This is not the general rule under FISA: surveillance under FISA is permitted based on a finding of probable cause that the surveillance target is a foreign power or an agent of a foreign power, irrespective of whether the target is suspected of engaging in criminal activity. However, if the target is a "U.S. person," there must be probable cause to believe that the U.S. person's activities may involve espionage or other similar conduct in violation of the criminal statutes of the United States. Nor may a U.S. person be determined to be an agent of a foreign power "solely upon the basis of activities protected by the first amendment to the Constitution of the United States."

Minimization Requirement

Although FISA surveillances must have an intelligence purpose (see below), courts allow FISA-obtained information to be used in criminal trials. However, FISA's "minimization" requirement mandates that procedures be implemented to minimize the collection, retention, and dissemination of information about United States persons. Minimization procedures are designed to prevent the broad power of "foreign intelligence gathering" from being used for routine criminal investigations. In a number of instances, however, there are overlaps between foreign intelligence gathering and criminal investigations. One common minimization procedure is what is known as an "information-screening wall." These "walls" require an official not involved in the criminal investigation to review the raw materials gathered by FISA surveillance and only pass on information that might be relevant evidence. The purpose is to ensure that criminal investigators do not use FISA authority for criminal investigations.

In March of 2002, the Attorney General proposed a new regime of minimization procedures. The Foreign Intelligence Surveillance Court rejected these procedures in May, in the first published opinion of that court (described in detail below).

Foreign Intelligence Information

Foreign Intelligence Information (FII) is information that relates to U.S. ability to protect against possible hostile acts of a foreign power or an agent of a foreign power, sabotage or terrorism by a foreign power or agent, and clandestine intelligence activities by a foreign power or agent. FII includes information with respect to a foreign power or foreign territory that relates to the national defense, national security, or conduct of foreign affairs of the United States.

If the intended surveillance target is a U.S. person, the information must instead be "necessary to" protect against hostile acts, sabotage, or terrorism, or U.S. national defense, national security, or foreign affairs.

The Foreign Intelligence Surveillance Court

FISA established a special court--the Foreign Intelligence Surveillance Court (FISC)-- composed of seven federal district court judges appointed by the Chief Justice for staggered terms and from different circuits. Individual judges of the FISC review the Attorney General's applications for authorization of electronic surveillance aimed at obtaining foreign intelligence information. The FISC meets two days monthly.

The proceedings are not adversarial: they are based entirely on the DOJ's presentations through its Office of Intelligence Policy and Review.

Under FISA, the Justice Department reviews applications for counterintelligence warrants by agencies before submitting them to the FISC. The Attorney General must personally approve each final FISA application.

The application must contain, among other things:

  • a statement of reasons to believe that the target of the surveillance is a foreign power or agent of a foreign power, (subject to the relevant amendments made by the USA-PATRIOT Act, discussed below)
  • a certification from a high-ranking executive branch official stating that the information sought is deemed to be foreign intelligence information, and that the information sought cannot reasonably be obtained by normal investigative techniques;
  • statements regarding all previous applications involving the target;
  • detailed description of the nature of the information sought and of the type of communication or activities to be subject to the surveillance;
  • the length of time surveillance is required;
  • whether physical entry into a premises is necessary, and
  • proposed procedures to minimize the acquisition, use, and retention of information concerning nonconsenting U.S. persons.

For U.S. persons, the FISC judge must find probable cause that one of four conditions has been met:

(1) the target knowingly engages in clandestine intelligence activities on behalf of a foreign power which "may involve" a criminal law violation;

(2) the target knowingly engages in other secret intelligence activities on behalf of a foreign power under the direction of an intelligence network and his activities involve or are about to involve criminal violations;

(3) the target knowingly engages in sabotage or international terrorism or is preparing for such activities; or

(4) the target knowingly aids or abets another who acts in one of the above ways.

An order of the FISC may approve electronic surveillance of an agent of a foreign power for ninety days and of a foreign power for a year. Extensions may be granted on the same terms.

The records and files of the cases are sealed and may not be revealed even to persons whose prosecutions are based on evidence obtained under FISA warrants (except to a limited degree set by district judges' rulings on motions to suppress). There is no provision for the return of executed warrants to the FISC, for certification that the surveillance was conducted according to the warrant and its "minimization" requirements, or for inventory of items taken pursuant to a FISA warrant.

The "Court of Review"

FISA provides for government appeals of FISC decisions to be made to the Foreign Intelligence Surveillance Court of Review. As of June, 2002, the Court of Review had never met, nor had an appeal ever been lodged. The court convened for the first time on September 9, 2002, to hear a unilateral appeal from the Department of Justice appealing a May 2002 FISC ruling (described in detail below).

The only public mandates governing the Court of Review, which are contained within FISA, direct that the information submitted to the court of review be done under the same seal of secrecy as that submitted to the FISC.

FISA Amendments in the USA-PATRIOT Act

The USA-PATRIOT Act, passed a month after September 11 to provide law enforcement with the tools necessary to combat the war against terrorism, contained several provisions enhancing the government's surveillance authority under FISA. See EPIC's USA-PATRIOT Act Page.

Lower Surveillance Standard

As originally passed, any FISA investigation must have had the collection of Foreign Intelligence Information as its sole or "primary purpose." The USA-PATRIOT Act expanded the application of FISA to those situations where foreign intelligence gathering is merely "a significant" purpose of the investigation. "Significant" is not defined, which vagueness will lead to inconsistent determinations and potential overuse of the FISA standards. The more lenient standards that the government must meet under FISA (as opposed to the stringent requirements of Title III) are justified by the fact that FISA's provisions facilitate the collection of foreign intelligence information, not criminal evidence. This traditional justification is eliminated where the lax FISA provisions are applicable to the interception of information relating to a domestic criminal investigation. The change is a serious alteration to the delicate constitutional balance reflected in the prior legal regime governing electronic surveillance.

Multi-Point ("Roving Wiretap") Authority

The USA-PATRIOT Act further expanded FISA to permit "roving wiretap" authority, which allows the interception of any communications made to or by an intelligence target without specifying the particular telephone line, computer or other facility to be monitored. Prior law required third parties (such as common carriers and others) "specified in court-ordered surveillance" to provide assistance necessary to accomplish the surveillance--under the new law, that obligation has been extended to unnamed and unspecified third parties.

Such "generic" orders could have a significant impact on the privacy rights of large numbers of innocent users, particularly those who access the Internet through public facilities such as libraries, university computer labs and cybercafes. Upon the suspicion that an intelligence target might use such a facility, the FBI can now monitor all communications transmitted at the facility. The problem is exacerbated by the fact that the recipient of the assistance order (for instance, a library) would be prohibited from disclosing the fact that monitoring is occurring.

The "generic" roving wiretap orders raise significant constitutional issues, as they do not comport with the Fourth Amendment's requirement that any search warrant "particularly describe the place to be searched." That deficiency becomes even more significant when where the private communications of law-abiding American citizens might be intercepted incidentally.

Liberalized Use of Pen Register/Trap and Trace Devices

Finally, the USA-PATRIOT Act removed the pre-existing statutory requirement that the government prove the surveillance target is "an agent of a foreign power" before obtaining a pen register/trap and trace order under the FISA. (A pen register collects the outgoing phone numbers placed from a specific telephone line, a trap and trace device captures the incoming numbers placed to a specific phone line. For example, a caller-id box is a trap and trace device.) The government can now obtain a pen register/trap and trace device "for any investigation to gather foreign intelligence information," without a showing that the device has, is or will be used by a foreign agent or by an individual engaged in international terrorism or clandestine intelligence activities. This amendment significantly eviscerates the constitutional rationale for the relatively lax requirements that apply to foreign intelligence surveillance. That laxity is premised on the assumption that Congress and the courts should not unduly restrain the Executive Branch, in pursuit of its national security responsibilities to monitor the activities of foreign powers and their agents. The removal of the "foreign power" predicate for pen register/trap and trace surveillance upsets that delicate balance.

However, USA-PATRIOT Act includes a provision prohibiting use of FISA pen register surveillance under any circumstances against a United States citizen where the investigation is conducted "solely on the basis of activities protected by the First Amendment." This exemption limits to some extent the potential overreach of this expanded authority.

Government Appeal

In March 2002, the Attorney General submitted a memorandum to the FISC, requesting approval of newly created information sharing (minimization procedures) and other proposals, to be implemented upon approval at the Department of Justice. The Attorney General's proposed minimization procedures significantly curtailed the information screening walls. In a May 17 opinion, the FISC granted some of the Administration's newly requested powers, but refused to grant the Justice Department heightened information sharing powers proposed by the Attorney General.

According to the court, "in approving minimization procedures the Court is to ensure that the intrusiveness of foreign intelligence surveillances and searches on the privacy of U.S. persons is 'consistent' with the need of the United States to collect foreign intelligence information from foreign powers and their agents." The opinion states that the Justice Department and FBI supplied erroneous information to the FISC in more than 75 applications for search warrants and wiretaps, including one signed by then-FBI director Louis Freeh. Authorities also improperly shared intelligence information with investigators and prosecutors handling criminal cases on at least four occasions. These abuses were discovered by the Justice Department and reported to the FISC in 2000. In one case, the FISC was so angered by inaccuracies in affidavits submitted to the court that the judges barred the agent responsible from ever appearing again before the FISC. In rejecting the new minimization procedures, the FISC stated that "[i]n virtually every instance, the government's misstatements and omissions in FISA applications and violations of the Court's orders involved information sharing and unauthorized disseminations to criminal investigators and prosecutors."

Because of the Administration's history of misuse of FISA authority, the FISC decided that the new procedures proposed by Ashcroft in March would give prosecutors too much control over intelligence investigations, and would allow the government to "end-run" the more stringent Title III wiretap requirements by obtaining information for criminal investigations under the lower FISA standards. "The 2002 procedures appear to be designed to amend the law and substitute the FISA for Title III electronic surveillance and Rule 41 searches." The opinion further illustrates the FISC's perturbation with the lack of response from the Justice Department, which has yet to explain how the misrepresentations and abuses occurred. The Department is still conducting an internal investigation.

Under the operative standards, the Justice Department must seek explicit FISC approval before sharing information obtained in a FISA investigation with a criminal investigator or prosecutor. The March memorandum proposed that criminal prosecutors be given routine access to such information, and that they be allowed to direct intelligence investigations when appropriate.

Ashcroft filed a formal appeal to the FISC's opinion on August 22, which constitutes the first formal challenge to the FISC in its 23-year history. Until this incident, the FISC has approved all but one FISA application sought by the government since the court's inception. The Court of Review heard the Justice Department's oral argument on September 9.

In the wake of the FISC opinion, Congress has begun to show signs of willingness to enact some FISA reforms. The first hearings discussing the need for such reform were held by the Senate Intelligence Committee on July 31, and the Senate Judiciary Committee on September 10.

Previous News

  • Secret Surveillance Continues to Increase. The Foreign Intelligence Surveillance Act Report reveals that the government made 2,072 secret surveillance requests in 2005, a record high and 18 percent more than 2004. None of the requests were denied by the Foreign Intelligence Surveillance Court, the secretive body that issues the warrants. In contrast, the Department of Justice reports (pdf) that law enforcement agencies across the country were authorized to conduct 1,773 wiretaps, which are issued under a more stringent standard. The report on secret wiretap warrants also indicated that the government issued 9,254 National Security Letters during 2005. These letters can be used to obtain information about individuals without the government applying for a court-reviewed warrant. (May 2, 2006)
  • American Bar Association Says Unlawful Surveillance Should Stop. A new report (pdf) from the American Bar Association calls on the President to abide by constitutional checks and balances, and to end electronic surveillance inside the United States that does not comply with the Foreign Intelligence Surveillance Act. The Association overwhelmingly supported the report, which also urged the Congress to undertake comprehensive investigations. (Feb. 15, 2006)
  • Electronic Surveillance at an All-Time High in 2004. The Foreign Intelligence Surveillance Act Annual Report (pdf) reveals that there were 1758 applications for secret surveillance in 2004, an all-time high. None of the applications for secret suveillance warrants were denied. In 2004, as in 2003, more secret surveillance warrants were granted than federal wiretap warrants, which have more stringent standards. A report on federal wiretapm warrants in 2004 reveals that state and federal courts authorized 1,710 interceptions in 2004, an increase of 19 percent over 2003 and more than in any previous year. Federal officials made an all-time high 730 intercept applications in 2004, a 26 percent increase over 2003. (Apr. 29, 2005)
  • 2003 Surveillance Report: Secret Warrants Surpass Standard Warrants. The 2003 Foreign Intelligence Surveillance Act Annual Report (pdf) reveals that the Foreign Intelligence Surveillance Court granted 1724 applications for secret surveillance last year, more than in any previous year. The report shows that 2003 was the first year ever that more secret surveillance warrants were granted than federal wiretap warrants, which are issued only under a more stringent legal standard. The PATRIOT Act significantly expanded the government's authority to make use of secret surveillance, including in circumstances where part of the investigation is unrelated to an intelligence investigation. The report also reveals that a small number of applications for secret surveillance were denied in 2003 for the first time ever. For more information, see EPIC's FISA statistics page. (May 6, 2004)
  • FISA Wiretaps At All-Time High. According to the 2002 FISA Annual Report from the Attorney General, "All 1228 applications presented to the Foreign Intelligence Surveillance Court in 2002 were approved." In2001, 934 applications were approved. See EPIC's FISA statistics page. (May 1, 2003)
  • Surveillance Oversight Act Introduced. Members of the Senate Judiciary Committee have introduced the Domestic Security Oversight Act (pdf). The bill would increase the public reporting requirements of the Department of Justice on its implementation of the Foreign Intelligence Surveillance Act. The American Bar Association has also urged (pdf) better public reporting regarding the FISA. An interim report by the bill sponsors (pdf) on the FBI's use of the FISA details major problems with its implementation. (Feb. 25, 2003)
  • American Bar Association Urges FISA Oversight. The American Bar Association has adopted a resolution calling on Congress to conduct oversight of the Foreign Intelligence Surveillance Act to ensure that government investigations do not violate Constitutional protections. The ABA also urged Congress to require annual reports for FISA investigations, comparable to those required by the federal wiretap act. The ABA action follows a controversial decision by the Foreign Intelligence Court of Review. (Feb. 11, 2003)
  • Secret Appeals Court Permits Broader Electronic Surveillance. The secretive Foreign Intelligence Surveillance Court of Review today issued an opinion (PDF) granting the executive branch broader surveillance authority in foreign intelligence cases. The opinion, which overturned the lower court's determination, was the first issued by the Court of Review since FISA's inception in 1978. The case involves an unprecedented decision made public in August which revealed a pattern of FBI misrepresentations to a secret surveillance court. For more information, see the ACLU's press release on the decision. (Nov. 18, 2002)
  • Memo Reveals FBI Wiretap Violations. A recently disclosed FBI memo reveals that agents illegally videotaped suspects, intercepted e-mails without court permission, recorded the wrong phone conversations, and allowed electronic surveillance operations to run beyond their legal deadline, during sensitive terrorism investigations. The mistakes referenced in the internal memo are different than those delineated and criticized in May by the Foreign Intelligence Surveillance Court. The existence of the memo was first revealed in documents EPIC obtained in a FOIA lawsuit. (Oct. 10, 2002)
  • Rights Groups File Brief With Secret Appeals Court. EPIC has joined with a coalition of civil liberties groups to urge a secret appeals court to reject a government bid for broadly expanded powers to conduct "national security" surveillance on U.S. citizens. In an amicus brief (PDF) filed with the Foreign Intelligence Surveillance Court of Review, the groups said that expanding such powers would jeopardize fundamental constitutional interests. The case involves an unprecedented decision made public last month which revealed a pattern of FBI misrepresentations to a secret surveillance court (see below). (Sep. 20, 2002)
  • FISA Court Chastises DOJ, FBI. In a published opinion (also available in PDF), the secretive Foreign Intelligence Surveillance Act (FISA) Court sharply criticized the DOJ and FBI for providing the tribunal misleading information in 75 cases. The Court limited the request of the DOJ to share intelligence information for criminal prosecutions. The Court said that DOJ substituted relaxed foreign intelligence gathering wiretapping procedures to evade higher requirements for standard criminal investigations: "The 2002 procedures appear to be designed to amend the law and substitute the FISA for Title III electronic surveillances" The Court continues to say that this may be because "the government is unable to meet the substantive requirements of these law enforcement tools..." (Aug. 23, 2002)

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