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
Released: 2007-02-15T00:00:00

Introduction

On October 26, 2001, President George W. Bush signed P.L. 107-56 , the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act or the USA PATRIOT Act. Among its provisions are a number which impacted or amended the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1801 et seq. , an act which provides a statutory structure for the use of electronic surveillance, physical searches, pen registers, trap and trace devices, and orders requiring production of tangible things within the United States to gather foreign intelligence information or to assist in specified types of investigations.

The changes made to FISA by P.L. 107-56 were far reaching. For example, the law expanded the number of United States district court judges on the Foreign Intelligence Surveillance Court and provided for roving or multipoint electronic surveillance authority under FISA. It amended FISA provisions with respect to pen registers and trap and trace devices, and substantially expanded the reach of the business records provisions to provide a mechanism for production of any tangible thing pursuant to a FISA court order. The amended language changed the certification demanded of a federal officer applying for a FISA order for electronic surveillance or a physical search from requiring a certification that the purpose of the surveillance or physical search is to obtain foreign intelligence information to requiring certification that a significant purpose of the surveillance or search is to obtain foreign intelligence information. As implemented, this has made it possible for FISA to be used where the primary purpose of the investigation is criminal investigation, so long as a significant foreign intelligence purpose is also present. FISA, as amended, also affords a private right of action to persons aggrieved by inappropriate use or disclosure of information gathered in or derived from a FISA surveillance or physical search or through the use of a pen register or trap and trace device. Of the amendments made by the USA PATRIOT Act, all but the section which increased the number of judges on the Foreign Intelligence Surveillance Court were set by that Act to sunset on December 31, 2005. P.L. 109-160 and P.L. 109-170 extended the sunset of certain FISA provisions, among others, to February 3, 2006, and March 10, 2006, respectively. The USA PATRIOT Improvement and Reauthorization Act of 2005, P.L. 109-177 , replaced the sunset provisions of P.L. 107-56 , as amended, with new provisions extending the application of the affected amendments to December 31, 2009. Amendments to FISA were also made by the Intelligence Authorization Act for Fiscal Year 2003, P.L. 107-108 ; the Homeland Security Act of 2002, P.L. 107-296 ; and the Intelligence Reform and Terrorism Protection Act of 2004, P.L. 108-458 .

In the 109 th Congress, two measures, the USA PATRIOT Improvement and Reauthorization Act of 2005, P.L. 109-177 , and the USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006, P.L. 109-178 , made significant changes to FISA. P.L. 109-177 extended the duration of FISA electronic surveillance, physical searches, and pen register and trap and trace devices. It also added requirements to applications for production of certain sensitive types of records, and expanded the requirements for applications for FISA orders for production of tangible things and for orders authorizing such production. This Act created a new petition review pool within the U.S. Foreign Intelligence Surveillance Court (FISC) to address challenges to such production orders or to related nondisclosure orders, and established a detailed procedure for review of such orders. Further, it directed the Inspector General of the U.S. Department of Justice to perform a comprehensive audit of the effectiveness and use, including improper or illegal use, of the investigative authority under title V of FISA, 50 U.S.C. § 1861 et seq. , for fiscal years 2002-2006. The measure modified the requirements for multipoint electronic surveillance under FISA. It also expanded congressional oversight of FISA electronic surveillance, physical searches, and use of pen registers and trap and trace devices. P.L. 109-178 amends the procedures for judicial review of production and nondisclosure orders under 50 U.S.C. § 1861.

On May 17, 2002, the U.S. Foreign Intelligence Surveillance Court issued an opinion and order written by the then Presiding Judge of the court, U.S. District Judge Royce C. Lamberth. All of the other judges then on the FISC concurred in the order. The opinion was provided by the current Presiding Judge of the FISC, U.S. District Judge Colleen Kollar-Kotelly, to the Senate Judiciary Committee in response to a July 31 letter from Senator Leahy, Senator Grassley and Senator Specter. On August 22, 2002, the unclassified opinion was released to the public by Senator Leahy, Senator Grassley and Senator Specter.

In the memorandum opinion and order, the FISC considered a motion by the U.S. Department of Justice "to vacate the minimization and 'wall' procedures in all cases now or ever before the Court, including this Court's adoption of the Attorney General's July 1995 intelligence sharing procedures, which are not consistent with new intelligence sharing procedures submitted for approval with this motion." In its memorandum and accompanying order, the FISC granted the Department of Justice's motion, but modified the second and third paragraphs of section II.B of the proposed minimization procedures.

The FISC's May 17 th memorandum opinion and order were not appealed directly. However, the Justice Department sought review in the U.S. Foreign Intelligence Court of Review (Court of Review) of an FISC order authorizing electronic surveillance of an agent of a foreign power, subject to restrictions flowing from the May 17 th decision, and of an FISC order renewing that surveillance subject to the same restrictions. The Court of Review reversed and remanded the FISC orders. This opinion, the first issued by the U.S. Foreign Intelligence SurveillanceCourt of Review since its creation in 1978, was also released to the public. This report will provide background on the Foreign Intelligence Surveillance Act, discuss its statutory framework, and review these two decisions.

Background

Investigations for the purpose of gathering foreign intelligence give rise to a tension between the Government's legitimate national security interests and the protection of privacy interests. The stage was set for legislation to address these competing concerns in part by Supreme Court decisions on related issues. In Katz v. United States , 389 U.S. 347 (1967), the Court held that the protections of the Fourth Amendment extended to circumstances involving electronic surveillance of oral communications without physical intrusion. The Katz Court stated, however, that its holding did not extend to cases involving national security. In United States v. United States District Court , 407 U.S. 297 (1972) (the Keith case), the Court regarded Katz as "implicitly recogniz[ing] that the broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails necessitate the application of Fourth Amendment safeguards." Mr. Justice Powell, writing for the Keith Court, framed the matter before the Court as follows:

The issue before us is an important one for the people of our country and their Government. It involves the delicate question of the President's power, acting through the Attorney General, to authorize electronic surveillance in internal security matters without prior judicial approval. Successive Presidents for more than one-quarter of a century have authorized such surveillance in varying degrees, without guidance from the Congress or a definitive decision of this Court. This case brings the issue here for the first time. Its resolution is a matter of national concern, requiring sensitivity both to the Government's right to protect itself from unlawful subversion and attack and to the citizen's right to be secure in his privacy against unreasonable Government intrusion.

The Court held that, in the case of intelligence gathering involving domestic security surveillance, prior judicial approval was required to satisfy the Fourth Amendment. Justice Powell emphasized that the case before it "require[d] no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without the country." The Court expressed no opinion as to "the issues which may be involved with respect to activities of foreign powers or their agents." However, the guidance which the Court provided in Keith with respect to national security surveillance in a domestic context to some degree presaged the approach Congress was to take in foreign intelligence surveillance. The Keith Court observed in part:

...We recognize that domestic surveillance may involve different policy and practical considerations from the surveillance of "ordinary crime." The gathering of security intelligence is often long range and involves the interrelation of various sources and types of information. The exact targets of such surveillance may be more difficult to identify than in surveillance operations against many types of crime specified in Title III [of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510 et seq. ]. Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government's preparedness for some possible future crisis or emergency. Thus, the focus of domestic surveillance may be less precise than that directed against more conventional types of crimes. Given these potential distinctions between Title III criminal surveillances and those involving 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. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection.... It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of § 2518 but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court...; and that the time and reporting requirements need not be so strict as those in § 2518. The above paragraph does not, of course, attempt to guide the congressional judgment but rather to delineate the present scope of our own opinion. We do not attempt to detail the precise standards for domestic security warrants any more than our decision in Katz sought to set the refined requirements for the specified criminal surveillances which now constitute Title III. We do hold, however, that prior judicial approval is required for the type of domestic surveillance involved in this case and that such approval may be made in accordance with such reasonable standards as the Congress may prescribe.

Court of appeals decisions following Keith met more squarely the issue of warrantless electronic surveillance in the context of foreign intelligence gathering. In United States v. Brown , 484 F.2d 418 (5 th Cir. 1973), cert. denied , 415 U.S. 960 (1974), the Fifth Circuit upheld the legality of a warrantless wiretap authorized by the Attorney General for foreign intelligence purposes where the conversation of Brown, an American citizen, was incidentally overheard. The Third Circuit in United States v. Butenko , 494 F.2d 593 (3 rd Cir. 1974), cert. denied sub nom, Ivanov v. United States , 419 U.S. 881 (1974), concluded that warrantless electronic surveillance was lawful, violating neither Section 605 of the Communications Act nor the Fourth Amendment, if its primary purpose was to gather foreign intelligence information. In its plurality decision in Zweibon v. Mitchell , 516 F.2d 594, 613-14 (D.C. Cir. 1975), cert. denied , 425 U.S. 944 (1976), the District of Columbia Circuit took a somewhat different view in a case involving a warrantless wiretap of a domestic organization that was not an agent of a foreign power or working in collaboration with a foreign power. Finding that a warrant was required in such circumstances, the plurality also noted that "an analysis of the policies implicated by foreign security surveillance indicates that, absent exigent circumstances, all warrantless electronic surveillance is unreasonable and therefore unconstitutional."

With the passage of the Foreign Intelligence Surveillance Act (FISA), P.L. 95-511 , Title I, October 25, 1978, 92 Stat. 1796, codified as amended at 50 U.S.C. § 1801 et seq. , Congress sought to strike a delicate balance between these interests when the gathering of foreign intelligence involved the use of electronic surveillance. Collection of foreign intelligence information through electronic surveillance is now governed by FISA and E.O. 12333. This report will examine the provisions of FISA which deal with electronic surveillance in the foreign intelligence context, as well as those applicable to physical searches, the use of pen registers and trap and trace devices under FISA, and access to business records and other tangible things for foreign intelligence purposes. As the provisions of E.O. 12333 to some extent set the broader context within which FISA operates, we will briefly examine its pertinent provisions first.

Executive Order 12333

Executive Order 12333, 46 Fed. Reg. 59,941 (December 4, 1981), as amended, 50 U.S.C. § 401 note, deals with "United States Intelligence Activities." Under Section 2.3 of E.O. 12333, the agencies within the Intelligence Community are to "collect, retain or disseminate information concerning United States persons only in accordance with procedures established by the head of the agency concerned and approved by the Attorney General, consistent with the authorities provided by Part 1 of this Order...." Among the types of information that can be collected, retained or disseminated under this section are:

(a) Information that is publicly available or collected with the consent of the person concerned;

(b) Information constituting foreign intelligence or counterintelligence, including such information concerning corporations or other commercial organizations. Collection within the United States of foreign intelligence not otherwise obtainable shall be undertaken by the FBI or, when significant foreign intelligence is sought, by other authorized agencies of the Intelligence Community, provided that no foreign intelligence collection by such agencies may be undertaken for the purpose of acquiring information concerning the domestic activities of United States persons;

(c) Information obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation;

(d) Information needed to protect the safety of any persons or organizations, including those who are targets, victims or hostages of international terrorist organizations;

(e) Information needed to protect foreign intelligence or counterintelligence sources or methods from unauthorized disclosure. Collection within the United States shall be undertaken by the FBI except that other agencies of the Intelligence Community may also collect such information concerning present or former employees, present or former intelligence agency contractors or their present or former employees, or applicants for any such employment or contracting;

(f) Information concerning persons who are reasonably believed to be potential sources or contacts for the purpose of determining their suitability or credibility;

(g) Information arising out of a lawful personnel, physical or communications security investigation;

...

(i) Incidentally obtained information that may indicate involvement in activities that may violate federal, state, local or foreign laws; and

(j) Information necessary for administrative purposes.

In addition, agencies within the Intelligence Community may disseminate information, other than information derived from signals intelligence, to each appropriate agency within the Intelligence Community for purposes of allowing the recipient agency to determine whether the information is relevant to its responsibilities and can be retained by it.

In discussing collections techniques, Section 2.4 of E.O. 12333 indicates that agencies within the Intelligence Community are to use

the least intrusive collection techniques feasible within the United States or directed against United States persons abroad. Agencies are not authorized to use such techniques as electronic surveillance, unconsented physical search, mail surveillance, physical surveillance, or monitoring devices unless they are in accordance with procedures established by the head of the agency concerned and approved by the Attorney General. Such procedures shall protect constitutional and other legal rights and limit use of such information to lawful governmental purposes....

Section 2.5 of the Executive Order 12333 states that:

The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978 [section 1801 et seq. of this title], shall be conducted in accordance with that Act, as well as this Order.

The Foreign Intelligence Surveillance Act

The Statutory Framework

The Foreign Intelligence Surveillance Act (FISA), P.L. 95-511 , Title I, October 25, 1978, 92 Stat. 1796, codified at 50 U.S.C. § 1801 et seq. , as amended, provides a framework for the use of electronic surveillance and physical searches to obtain foreign intelligence information. It also provides a statutory structure for the installation and use of pen registers and trap and trace devices and for orders requiring production of tangible things for use in federal investigations to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities. Such an investigation of a United States person may not be conducted solely on the basis of activities protected by the First Amendment to the Constitution. This measure seeks to strike a balance between national security needs in the context of foreign intelligence gathering and privacy rights.

Creation of the U.S. Foreign Intelligence Surveillance Court and the U.S. Foreign Intelligence Court of Review

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. The FISC has established the Foreign Intelligence Surveillance Court Rules of Procedure, and Procedures for Review of Petitions filed pursuant to Section 501(f) of the Foreign Intelligence Surveillance Act of 1978, as Amended have also been adopted. Rules of procedure for the Court of Review have not been identified. Any such rules and procedures, and any modifications thereto, must be recorded and transmitted in an unclassified form (although they may include a classified annex) to all of the judges on the FISC; all of the judges on the Court of Review; the Chief Justice of the United States; the Committee on the Judiciary of the Senate and of the House of Representatives; and the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence.

Electronic surveillance under FISA

Electronic surveillance under title I of FISA, 50 U.S.C. § 1801 et seq ., is generally conducted under an FISC order, unless the surveillance fits within one of three statutory exceptions.

50 U.S.C. § 1802—Electronic Surveillance of Certain Foreign Powers Without a Court Order

The first of these exceptions is electronic surveillance of certain foreign powers without a court order upon Attorney General certification that specific criteria have been met. Under section 101(g) of FISA, 50 U.S.C. § 1801(g), as amended by Subsection 506(a)(5) of P.L. 109-177 , the term "Attorney General" is defined to mean "the Attorney General of the United States (or Acting Attorney General), the Deputy Attorney General, or, upon the designation of the Attorney General, the Assistant Attorney General designated as the Assistant Attorney General for National Security under section 507A of title 28, United States Code."

Under 50 U.S.C. § 1802, the President, through the Attorney General, may authorize electronic surveillance to acquire foreign intelligence information for up to one year without a court order if two criteria are satisfied. First, to utilize this authority, the Attorney General must certify in writing under oath that:

(A) the electronic surveillance is solely directed at—

(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in [50 U.S.C. § 1801(a)(1), (2), or (3)]; or

(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in [50 U.S.C. § 1801(a)(1), (2) or (3)];

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and

(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under [50 U.S.C. § 1801(h)];

....

Second, in order for the President, through the Attorney General, to use this authority

... the Attorney General [must report] such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization and the reason for their becoming effective immediately.

Such electronic surveillance must be conducted only in accordance with the Attorney General's certification and minimization procedures adopted by him. A copy of his certification must be transmitted by the Attorney General to the FISC. This certification remains under seal unless an application for a court order for surveillance authority is made under 50 U.S.C. §§ 1801(h)(4) and 1804, or the certification is necessary to determine the legality of the surveillance under 50 U.S.C. § 1806(f).

In connection with electronic surveillance so authorized, the Attorney General may direct a specified communications common carrier to furnish all information, facilities, or technical assistance needed for the electronic surveillance to be accomplished in a way that would protect its secrecy and minimize interference with the services provided by the carrier to its customers. 50 U.S.C. § 1802(a)(4)(A). In addition, the Attorney General may direct the specified communications common carrier to maintain any records, under security procedures approved by the Attorney General and the Director of National Intelligence, concerning the surveillance or the assistance provided which the carrier wishes to retain. 50 U.S.C. § 1802(a)(4)(B). Compensation at the prevailing rate must be made to the carrier by the Government for providing such aid.

If the President, by written authorization, empowers the Attorney General to approve applications to the FISC, an application for a court order may be made pursuant to 50 U.S.C. § 1802(b). A judge receiving such an application may grant an order under 50 U.S.C. § 1805 approving electronic surveillance of a foreign power or an agent of a foreign power to obtain foreign intelligence information. There is an exception to this, however. Under 50 U.S.C. § 1802(b), a court does not have jurisdiction to grant an order approving electronic surveillance directed solely as described in 50 U.S.C. § 1802(a)(1)(A) (that is, at acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, or acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power), unless the surveillance may involve the acquisition of communications of a United States person. 50 U.S.C. § 1802(b).

50 U.S.C. § 1804—Applications for FISC Orders Authorizing Electronic Surveillance

An application for a court order authorizing electronic surveillance for foreign intelligence purposes may be sought under 50 U.S.C. § 1804. An application for such a court order must be made by a federal officer in writing on oath or affirmation to an FISC judge. The application must be approved by the Attorney General based upon his finding that the criteria and requirements set forth in 50 U.S.C. § 1801 et seq . have been met. Section 1804(a) sets out what must be included in the application:

(1) the identity of the Federal officer making the application;

(2) the authority conferred on the Attorney General by the President of the United States and the approval of the Attorney General to make the application;

(3) the identity, if known, or a description of the specific target of the electronic surveillance;

(4) a statement of the facts and circumstances relied upon by the applicant to justify his belief that—

(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and

(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;

(5) a statement of the proposed minimization procedures;

(6) a detailed description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance;

(7) a certification or certifications by the Assistant to the President for National Security Affairs or an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate —

(A) that the certifying official deems the information sought to be foreign intelligence information;

(B) that a significant purpose of the surveillance is to obtain foreign intelligence information;

(C) that such information cannot reasonably be obtained by normal investigative techniques;

(D) that designates the type of foreign intelligence information being sought according to the categories described in 1801(e) of this title; and

(E) including a statement of the basis for the certification that—

(i) the information sought is the type of foreign intelligence information designated; and

(ii) such information cannot reasonably be obtained by normal investigative techniques;

(8) a statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance;

(9) a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application;

(10) a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the intelligence gathering is such that the approval of the use of electronic surveillance under this subchapter should not automatically terminate when the described type of information has first been obtained, a description of facts supporting the belief that additional information of the same type will be obtained thereafter; and

(11) whenever more that one electronic, mechanical or other surveillance device is to be used with respect to a particular proposed electronic surveillance, the coverage of the devices involved and what minimization procedures apply to information acquired by each device.

The application for a court order need not contain the information required in Subsections 1804(6), (7)(E), (8), and (11) above if the target of the electronic surveillance is a foreign power and each of the facilities or places at which surveillance is directed is owned, leased, or exclusively used by that foreign power. However, in those circumstances, the application must indicate whether physical entry is needed to effect the surveillance, and must also contain such information about the surveillance techniques and communications or other information regarding United States persons likely to be obtained as may be necessary to assess the proposed minimization procedures. 50 U.S.C. § 1804(b).

Where an application for electronic surveillance under 50 U.S.C. § 1804(a) involves a target described in 50 U.S.C. § 1801(b)(2), the Attorney General must personally review the application if requested to do so, in writing, by the Director of the Federal Bureau of Investigation, the Secretary of Defense, the Secretary of State, or the Director of National Intelligence. The authority to make such a request may not be delegated unless the official involved is disabled or otherwise unavailable. Each such official must make appropriate arrangements, in advance, to ensure that such a delegation of authority is clearly established in case of disability or other unavailability. If the Attorney General determines that an application should not be approved, he must give the official requesting the Attorney General's personal review of the application written notice of the determination. Except in cases where the Attorney General is disabled or otherwise unavailable, the responsibility for such a determination may not be delegated. The Attorney General must make advance plans to ensure that the delegation of such responsibility where the Attorney General is disabled or otherwise unavailable is clearly established. Notice of the Attorney General's determination that an application should not be approved must indicate what modifications, if any, should be made in the application needed to make it meet with the Attorney General's approval. The official receiving the Attorney General's notice of modifications which would make the application acceptable must modify the application if the official deems such modifications warranted. Except in cases of disability or other unavailability, the responsibility to supervise any such modifications is also a non-delegable responsibility.

50 U.S.C. § 1805—Issuance of FISC Order Authorizing Electronic Surveillance

If a judge makes the findings required under 50 U.S.C. § 1805(a), then he or she must enter an ex parte order as requested or as modified approving the electronic surveillance. The necessary findings must include that:

(1) the President has authorized the Attorney General to approve applications for electronic surveillance for foreign intelligence information;

(2) the application has been made by a Federal officer and approved by the Attorney General;

(3) on the basis of the facts submitted by the applicant there is probable cause to believe that—

(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided , That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and

(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;

(4) the proposed minimization procedures meet the definition of minimization procedures under section 1801(h) of this title; and

(5) the application which has been filed contains all statements and certifications required by section 1804 of this title and, if the target is a United States person, the certification or certifications are not clearly erroneous on the basis of the statement made under section 1804(a)(7)(E) of this title and any other information furnished under section 1804(d) of this title.

In making a probable cause determination under 50 U.S.C. § 1805(a)(3), the judge may consider past activities of the target as well as facts and circumstances relating to the target's current or future activities.

Section 1805(c) sets out particular specifications and directions which must be included in an order approving a FISA electronic surveillance:

(1) Specifications.—An order approving an electronic surveillance under this section shall specify

(A) the identity, if known, or a description of the specific target of the electronic surveillance identified or described in the application pursuant to [50 U.S.C. § 1804(a)(3)];

(B) the nature and location of each of the facilities or places at which the electronic surveillance will be directed , if known ;

(C) the type of information sought to be acquired and the type of communications or activities to be subjected to the surveillance;

(D) the means by which the electronic surveillance will be effected and whether physical entry will be used to effect the surveillance;

(E) the period of time during which the electronic surveillance is approved; and

(F) whenever more than one electronic, mechanical, or other surveillance device is to be used under the order, the authorized coverage of the device involved and what minimization procedures shall apply to information subject to acquisition by each device.

(2) Directions.—An order approving an electronic surveillance under this section shall direct

(A) that the minimization procedures be followed;

(B) that, upon the request of the applicant a specified communication or other common carrier, landlord, custodian, or other specified person, or in circumstances where the Court finds , based upon specific facts provided in the application, that the actions of the target of the application may have the effect of thwarting the identification of a specified person, such other persons, furnish the applicant forthwith all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier, landlord, custodian, or other person is providing that target of electronic surveillance;

(C) that such carrier, landlord, custodian, or other person maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the surveillance or the aid furnished that such person wishes to retain; and

(D) that the applicant compensate, at the prevailing rate, such carrier, landlord, custodian, or other person for furnishing such aid.

(3) Special directions for certain orders

An order approving an electronic surveillance under this section in circumstances where the nature and location of each of the facilities or places at which the surveillance will be directed is unknown shall direct the applicant to provide notice to the court within ten days after the date on which surveillance begins to be directed at any new facility or place, unless the court finds good cause to justify a longer period of up to 60 days, of—

(A) the nature and location of each new facility or place at which the electronic surveillance is directed;

(B) the facts and circumstances relied upon by the applicant to justify the applicant's belief that each new facility or place at which the electronic surveillance is directed is or was being used, or is about to be used, by the target of the surveillance;

(C) a statement of any proposed minimization procedures that differ from those contained in the original application or order, that may be necessitated by a change in the facility or place at which the electronic surveillance is directed; and

(D) the total number of electronic surveillances that have been or are being conducted under the authority of the order.

The italicized portions of Section 1805(c)(1)(B) and Section 1805(c)(2)(B) reflect changes, added by P.L. 107-108 and P.L. 107-56 respectively, intended to provide authority for "multipoint" or "roving" electronic surveillance where the actions of the target of the surveillance, such as switching phones and locations repeatedly, may thwart that surveillance. The Conference Report on H.R. 2338 , the Intelligence Authorization Act for Fiscal Year 2002 (which became P.L. 107-108 ), H.Rept. 107-328 , at page 24, provided the following explanation of these changes:

The multipoint wiretap amendment to FISA in the USA PATRIOT Act (section 206) allows the FISA court to issue generic orders of assistance to any communications provider or similar person, instead of to a particular communications provider. This change permits the Government to implement new surveillance immediately if the FISA target changes providers in an effort to thwart surveillance. The amendment was directed at persons who, for example, attempt to defeat surveillance by changing wireless telephone providers or using pay phones.

Currently, FISA requires the court to "specify" the "nature and location of each of the facilities or places at which the electronic surveillance will be directed." 50 U.S.C. § 105(c)(1)(B). Obviously, in certain situations under current law, such a specification is limited. For example, a wireless phone has no fixed location and electronic mail may be accessed from any number of locations.

To avoid any ambiguity and clarify Congress' intent, the conferees agreed to a provision which adds the phrase, "if known," to the end of 50 U.S.C. § 1805(c)(1)(B). The "if known" language, which follows the model of 50 U.S.C. § 1805(c)(1)(A), is designed to avoid any uncertainty about the kind of specification required in a multipoint wiretap case, where the facility to be monitored is typically not known in advance.

The underlined portions of subsection 1805(c) reflect changes made by P.L. 109-177 , Section 108.

If the target of the electronic surveillance is a foreign power and each of the facilities or places at which the surveillance is directed is owned, leased, or exclusively used by that foreign power, the order does not need to include the information covered by Section 1805(c)(1)(C), (D), and (F), but must generally describe the information sought, the communications or activities subject to surveillance, the type of electronic surveillance used, and whether physical entry is needed. 50 U.S.C. § 1805(d).

Such an order may approve an electronic surveillance for the period of time necessary to achieve its purpose or for ninety days, whichever is less, unless the order is targeted against a foreign power as defined in 50 U.S.C. § 1801(a)(1), (2), or (3), or against an agent of a foreign power who is not a United States person. In the case of an order targeted against a such a foreign power, the order shall approve an electronic surveillance for the period specified in the order or for one year, whichever is less. An order under FISA for surveillance targeted against an agent of a foreign power who is not a U.S. person may be for the period specified in the order or 120 days, whichever is less.

Generally, upon application for an extension, a court may grant an extension of an order on the same basis as an original order. An extension must include new findings made in the same manner as that required for the original order. However, an extension of an order for a surveillance targeted against a foreign power as defined in 50 U.S.C. § 1801(a)(5) (a foreign-based political organization, not substantially composed of United States persons) or (6) (an entity that is directed and controlled by a foreign government or governments), or against a foreign power as defined in 50 U.S.C. § 1801(a)(4) (a group engaged in international terrorism or activities in preparation therefor) that is not a United States person, may be for a period of up to one year if the judge finds probable cause to believe that no communication of any individual United States person will be acquired during the period involved. In addition, an extension of an order for surveillance targeted at an agent of a foreign power who is not a U.S. person may be extended to a period not exceeding one year.

Certifications made by the Attorney General pursuant to 50 U.S.C. § 1802(a) and applications made and orders granted for electronic surveillance under title I of FISA, must be retained for a period of at least ten years from the date of the certification or application.

Emergency Authorization of Electronic Surveillance upon Attorney General Certification while an FISC Order Is Pursued . Emergency situations are addressed in 50 U.S.C. § 1805(f). Notwithstanding other provisions of this subchapter, if the Attorney General reasonably determines that an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained and that the factual basis for issuance of an order under this subchapter to approve such surveillance exists, he may authorize electronic surveillance if specified steps are taken. At the time of the Attorney General's emergency authorization, he or his designee must inform an FISC judge that the decision to employ emergency electronic surveillance has been made. An application for a court order under Section 1804 must be made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance. If the Attorney General authorizes emergency electronic surveillance, he must require compliance with the minimization procedures required for the issuance of a judicial order under this subchapter. Absent a judicial order approving the emergency electronic surveillance, the surveillance must terminate when the information sought is obtained, when the application for the order is denied, or after 72 hours from the time of the Attorney General's authorization, whichever is earliest. If no judicial order approving the surveillance is issued, the information garnered may not be received in evidence or otherwise disclosed in any court proceeding, or proceeding in or before any grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof. No information concerning any United States person acquired through such surveillance may be disclosed by any Federal officer or employee without the consent of that person, unless the Attorney General approves of such disclosure or use where the information indicates a threat of death or serious bodily harm to any person.

50 U.S.C. § 1805(g)—Authority for Electronic Surveillance for Testing of Electronic Equipment; Discovering Unauthorized Electronic Surveillance; or Training of Intelligence Personnel in Use of Electronic Equipment

Notwithstanding any other provision of title I of FISA, under Section 1805(g), federal officers, employees, or agents are authorized in the normal course of their official duties to conduct electronic surveillance not targeted against the communications of any particular person or persons, under procedures approved by the Attorney General, solely to:

(1) test the capability of electronic equipment, if—

(A) it is not reasonable to obtain the consent of the persons incidentally subjected to the surveillance;

(B) the test is limited in extent and duration to that necessary to determine the capability of the equipment;

(C) the contents of any communication acquired are retained and used only for the purpose of determining the capability of the equipment, are disclosed only to test personnel, and are destroyed before or immediately upon completion of the test; and:

(D) Provided, That the test may exceed ninety days only with the prior approval of the Attorney General;

(2) determine the existence and capability of electronic surveillance equipment being used by persons not authorized to conduct electronic surveillance, if—

(A) it is not reasonable to obtain the consent of persons incidentally subjected to the surveillance;

(B) such electronic surveillance is limited in extent and duration to that necessary to determine the existence and capability of such equipment; and

(C) any information acquired by such surveillance is used only to enforce chapter 119 of Title 18, or section 605 of Title 47, or to protect information from unauthorized surveillance; or

(3) train intelligence personnel in the use of electronic surveillance equipment, if—

(A) it is not reasonable to—

(i) obtain the consent of the persons incidentally subjected to the surveillance;

(ii) train persons in the course of surveillances otherwise authorized by this subchapter; or

(iii) train persons in the use of such equipment without engaging in electronic surveillance;

(B) such electronic surveillance is limited in extent and duration to that necessary to train the personnel in the use of the equipment; and

(C) no contents of any communication acquired are retained or disseminated for any purpose, but are destroyed as soon as reasonably possible.

50 U.S.C. § 1805(i)—Limitation on Liability for Compliance with FISC Order Authorizing Electronic Surveillance or Physical Search

Section 1805(i) bars any cause of action in any court against any provider of a wire or electronic communication service, landlord, custodian, or other person (including any officer, employee, agent, or other specified person thereof) that furnishes any information, facilities, or technical assistance in accordance with a court order or request for emergency assistance under FISA for electronic surveillance or a physical search.

50 U.S.C. § 1806—Use of Information Obtained from FISA Electronic Surveillance

The uses to which information gathered pursuant to electronic surveillance under FISA may be put are addressed under 50 U.S.C. § 1806.

Under this section, disclosure, without the consent of the person involved, of information lawfully acquired under FISA electronic surveillance which concerns a United States person must be in compliance with the statutorily mandated minimization procedures. Communications which were privileged when intercepted remain privileged. Where information acquired under FISA electronic surveillance is disclosed for law enforcement purposes, neither that information nor any information derived therefrom may be used in a criminal proceeding without prior authorization of the Attorney General. If the United States Government intends to disclose information acquired under FISA electronic surveillance or derived therefrom in any proceeding before a court, department, officer regulatory body or other authority of the United States against an aggrieved person, then the Government must give prior notice of its intent to disclose to the aggrieved person and to the court or other authority involved. Similarly, a State or political subdivision of a State that intends to disclose such information against an aggrieved person in a proceeding before a State or local authority must give prior notice of its intent to the aggrieved person, the court or other authority, and the Attorney General.

50 U.S.C. § 1806(c)-(f)—U.S. District Court Consideration of Notices, Motions to Suppress or Discovery Motions . Section 1806 also sets out in camera and ex parte U.S. district court review procedures to be followed where such notification is received, or where the aggrieved person seeks to discover or obtain orders or applications relating to FISA electronic surveillance, or to discover, obtain, or suppress evidence or information obtained or derived from the electronic surveillance, and the Attorney General files an affidavit under oath that such disclosure would harm U.S. national security. The focus of this review would be to determine whether the surveillance was lawfully conducted and authorized. Only where it is needed to make an accurate determination of these issues does the section permit the court to disclose to the aggrieved person, under appropriate security measures and protective orders, parts of the application, order, or other materials related to the surveillance. If, as a result of its review, the district court determines that the surveillance was unlawful, the resulting evidence must be suppressed. If the surveillance was lawfully authorized and conducted, the motion of the aggrieved person must be denied except to the extent that due process requires discovery or disclosure. Resultant court orders granting motions or requests of the aggrieved person for a determination that the surveillance was not lawfully conducted or authorized and court orders requiring review or granting disclosure are final orders binding on all Federal and State courts except a U.S. Court of Appeals and the U.S. Supreme Court.

If the contents of any radio communication are unintentionally acquired by an electronic, mechanical, or other surveillance device in circumstances where there is a reasonable expectation of privacy and where a warrant would be required if the surveillance were to be pursued for law enforcement purposes, then the contents must be destroyed when recognized, unless the Attorney General finds that the contents indicate a threat of death or serious bodily harm to any person.

As noted above, Section 1805 provides for emergency electronic surveillance in limited circumstances, and requires the subsequent prompt filing of an application for court authorization to the FISC in such a situation. Under Section 1806, if the application is unsuccessful in obtaining court approval for the surveillance, notice must be served upon any United States person named in the application and such other U.S. persons subject to electronic surveillance as the judge determines, in the exercise of his discretion, is in the interests of justice. This notice includes the fact of the application, the period of surveillance, and the fact that information was or was not obtained during this period. Section 1806 permits postponement or suspension of service of notice for up to ninety days upon ex parte good cause shown. Upon a further ex parte showing of good cause thereafter, the court will forego ordering such service of notice.

50 U.S.C. § 1806(k)—Consultation by Federal Officers Conducting FISA Electronic Surveillance with Federal Law Enforcement Officers . P.L. 107-56 , Section 504, added a new subsection 1806(k)(1). Under this subsection, federal officers who conduct electronic surveillance to acquire foreign intelligence under FISA are permitted to consult with Federal law enforcement officers to coordinate investigative efforts or to protect against—

(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;

(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or

(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power.

This subsection indicates further that such coordination would not preclude certification as required by 50 U.S.C. § 1804(a)(7)(B) or entry of a court order under 50 U.S.C. § 1805.

50 U.S.C. §§ 1807 and 1808—Congressional Oversight

Reporting requirements are included in Sections 1807 and 1808. Under Section 1807, each year in April, the Attorney General is directed to transmit to the Administrative Office of the United States Courts and to the Congress a report covering the total number of applications made for orders and extensions of orders approving electronic surveillance under FISA during the previous year, and the total number of orders and extensions granted, modified, or denied during that time period.

Section 1808(a) requires the Attorney General to fully inform the House Permanent Select Committee on Intelligence, the Senate Select Committee on Intelligence, and the Senate Judiciary Committee semiannually about all electronic surveillance under FISA. Each such report must contain a description of the total number of applications made for orders and extensions of orders approving electronic surveillance under this subchapter where the nature and location of each facility or place at which the electronic surveillance will be directed is unknown; each criminal case in which information acquired by electronic surveillance under FISA has been authorized for use at trial during the period covered by the report; and the total number of emergency employments of electronic surveillance under section 1805(f) of this title and the total number of subsequent orders approving or denying such electronic surveillance.

50 U.S.C. § 1809—Criminal Sanctions

Section 1809 provides criminal sanctions for intentionally engaging in electronic surveillance under color of law except as authorized by statute; or for disclosing or using information obtained under color of law by electronic surveillance, knowing or having reason to know that surveillance was not authorized by statute. The provision makes it a defense to prosecution under this subsection if the defendant is a law enforcement officer or investigative officer in the course of his official duties and the electronic surveillance was authorized by and conducted under a search warrant or court order of a court of competent jurisdiction. Section 1809 provides for Federal jurisdiction over such an offense if the defendant is a Federal officer or employee at the time of the offense.

50 U.S.C. § 1810—Civil Liability

Civil liability is also provided for under Section 1810, where an aggrieved person, who is neither a foreign power nor an agent of a foreign power, has been subjected to electronic surveillance, or where information gathered by electronic surveillance about an aggrieved person has been disclosed or used in violation of Section 1809.

50 U.S.C. § 1811—Electronic Surveillance without FISC Order after Congressional Declaration of War

Finally, Section 1811 provides that, notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order to acquire foreign intelligence information for up to 15 calendar days following a declaration of war by Congress.

Physical searches for foreign intelligence gathering purposes

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.

50 U.S.C. § 1822—Physical Searches without FISC Order of Premises Owned or Controlled by Certain Foreign Powers

Under 50 U.S.C. § 1822, the President, acting through the Attorney General, may authorize physical searches to acquire foreign intelligence information without a court order for up to one year if the Attorney General certifies under oath that the search is solely directed at premises, property, information or materials owned by or under the open and exclusive control of certain foreign power or powers. For these purposes, "foreign power or powers" means a foreign government or component of a foreign government, whether or not recognized by the United States, a faction of a foreign nation or nations, not substantially composed of U.S. persons; or an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments. In addition, the Attorney General must certify that there is no substantial likelihood that the physical search will involve the premises, information, material or property of a U.S. person, and that the proposed minimization procedures with respect to the physical search are consistent with 50 U.S.C. § 1821(4)(1)-(4). Under normal circumstances, these minimization procedures and any changes to them are reported to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence by the Attorney General at least 30 days before their effective date. However, if the Attorney General determines that immediate action is required, the statute mandates that he advise these committees immediately of the minimization procedures and the need for them to become effective immediately. In addition, the Attorney General must assess compliance with these minimization procedures and report such assessments to these congressional committees.

The certification of the Attorney General for a search under 50 U.S.C. § 1822 is immediately transmitted under seal to the Foreign Intelligence Surveillance Court, and maintained there under security measures established by the Chief Justice of the United States with the Attorney General's concurrence, in consultation with the Director of National Intelligence. Such a certification remains under seal unless one of two circumstances arise: (1) either an application for a court order with respect to the physical search is made to the Foreign Intelligence Surveillance Court under 50 U.S.C. § 1821(4) (dealing with minimization procedures) and § 1823 (dealing with the process by which a federal officer, with the approval of the Attorney General, may apply for an order from the FISC approving a physical search for foreign intelligence gathering purposes); or (2) the certification is needed to determine the legality of a physical search under 50 U.S.C. § 1825 (dealing with use of the information so gathered).

In connection with physical searches under 50 U.S.C. § 1822, the Attorney General may direct a landlord, custodian or other specified person to furnish all necessary assistance needed to accomplish the physical search in a way that would both protect its secrecy and minimize interference with the services such person provides the target of the search. Such person may also be directed to maintain any records regarding the search or the aid provided under security procedures approved by the Attorney General and the Director of National Intelligence. The provision of any such aid must be compensated by the Government.

As in the case of applications for electronic surveillance under FISA, the Foreign Intelligence Surveillance Court (FISC) has jurisdiction to hear applications and grant applications with respect to physical searches under 50 U.S.C. § 1821 et seq. No FISC judge may hear an application already denied by another FISC judge. If an application for an order authorizing a physical search under FISA is denied, the judge denying the application must immediately provide a written statement of reasons for the denial. If the United States so moves, the record is then transmitted under seal to the court of review established under 50 U.S.C. § 1803(b). If the court of review determines that the application was properly denied, it, in turn, must provide a written statement of the reasons for its decision, which must be transmitted under seal to the Supreme Court upon petition for certiorari by the United States. Any of the proceedings with respect to an application for a physical search under FISA must be conducted expeditiously, and the record of such proceedings must be kept under appropriate security measures.

50 U.S.C. § 1823—Application for an FISC Order Authorizing a Physical Search

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.

50 U.S.C. § 1824—Issuance of an FISC Order Authorizing a Physical Search

As in the case of the issuance of an order approving electronic surveillance under 50 U.S.C. § 1805(a), certain findings by the FISC judge are required before an order may be forthcoming authorizing a physical search for foreign intelligence information under 50 U.S.C. § 1824(a). Once an application under Section 1823 has been filed, an FISC judge must enter an ex parte order, either as requested or as modified, approving the physical search if the requisite findings are made. These include findings that:

(1) the President has authorized the Attorney General to approve applications for physical searches for foreign intelligence purposes;

(2) the application has been made by a Federal officer and approved by the Attorney General;

(3) on the basis of the facts submitted by the applicant there is probable cause to believe that—

(A) the target of the physical search is a foreign power or an agent of a foreign power, except that no United States person may be considered an agent of a foreign power solely on the basis of activities protected by the first amendment to the Constitution of the United States; and

(B) the premises or property to be searched is owned, used, possessed by, or is in transit to or from an agent of a foreign power or a foreign power;

(4) the proposed minimization procedures meet the definition of minimization contained in this subchapter; and

(5) the application which has been filed contains all statements and certifications required by section 1823 of this title, and, if the target is a United States person, the certification or certifications are not clearly erroneous on the basis of the statement made under section 1823(a)(7)(E) of this title and any other information furnished under section 1823(c) of this title.

Like Section 1805(b) regarding electronic surveillance under FISA, an FISC judge making a probable cause determination under Section 1824 may consider the target's past activities, plus facts and circumstances pertinent to the target's present or future activities.

As in the case of an order under 50 U.S.C. § 1805(c) with respect to electronic surveillance, an order granting an application for a physical search under FISA must meet statutory requirements in 50 U.S.C. § 1824(c) as to specifications and directions. An order approving a physical search must specify:

(A) the identity, if known, or a description of the target of the physical search;

(B) the nature and location of each of the premises of property to be searched;

(C) the type of information, material, or property to be seized, altered, or reproduced;

(D) a statement of the manner in which the physical search is to be conducted and, whenever more than one physical search is authorized under the order, the authorized scope of each search and what minimization procedures shall apply to the information acquired by each search; and

(E) the period of time during which the physical searches are approved; ....

In addition, the order must direct:

(A) that the minimization procedures be followed;

(B) that, upon the request of the applicant, a specified landlord, custodian, or other specified person furnish the applicant forthwith all information, facilities, or assistance necessary to accomplish the physical search in such a manner as will protect its secrecy and produce a minimum of interference with the services that such landlord, custodian, or other person is providing to the target of the physical search;

(C) that such landlord, custodian, or other person maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the search or the aid furnished that such person wishes to retain;

(D) that the applicant compensate, at the prevailing rate, such landlord, custodian, or other person for furnishing such aid; and

(E) that the federal officer conducting the physical search promptly report to the court the circumstances and results of the physical search.

Subsection 1824(d) sets the limits on the duration of orders under this section and makes provision for extensions of such orders if certain criteria are met.

50 U.S.C. § 1824(e)—Emergency Authorization of a Physical Search upon Attorney General Certification while FISC Order Is Pursued . Subsection 1824(e) deals with emergency orders for physical searches. It permits the Attorney General, under certain circumstances, to authorize execution of a physical search if the Attorney General or his designee informs an FISC judge that the decision to execute an emergency search has been made, and an application under 50 U.S.C. § 1821 et seq. is made to that judge as soon as possible, within 72 hours after the Attorney General authorizes the search. The Attorney General's decision to authorize such a search must be premised upon a determination that "an emergency situation exists with respect to the execution of a physical search to obtain foreign intelligence information before an order authorizing such search can with due diligence be obtained," and "the factual basis for issuance of an order under this title [50 U.S.C. § 1821 et seq. ] to approve such a search exists." If such an emergency search is authorized by the Attorney General, he must require that the minimization procedures required for issuance of a judicial order for a physical search under 18 U.S.C. § 1821 et seq. be followed. If there is no judicial order for a such a physical search, then the search must terminate on the earliest of the date on which the information sought is obtained, the date on which the application for the order is denied, or the expiration of the 72 hour period from the Attorney General's authorization of the emergency search. If an application for approval is denied or if the search is terminated and no order approving the search is issued, then neither information obtained from the search nor evidence derived from the search may be used in evidence or disclosed in any

... trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such search shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General, if the information indicates a threat of death or serious bodily harm to any person. A denial of the application made under this subsection may be reviewed as provided in section 302 [50 U.S.C. § 1822].

Subsection 1824(f) requires retention of applications made and orders granted under 50 U.S.C. § 1821 et seq. , for a minimum of ten years from the date of the application.

50 U.S.C. § 1825—Use of Information Obtained from a FISA Physical Search

Like 50 U.S.C. § 1806 with respect to electronic surveillance under FISA, 50 U.S.C. § 1825 restricts and regulates the uses of information secured under a FISA physical search. Such information may only be used or disclosed by Federal officers or employees for lawful purposes. Federal officers and employees must comply with minimization procedures if they use or disclose information gathered from a physical search under FISA concerning a United States person. If a physical search involving the residence of a United States person is authorized and conducted under 50 U.S.C. § 1824, and at any time thereafter the Attorney General determines that there is no national security interest in continuing to maintain the search's secrecy, the Attorney General must provide notice to the United States person whose residence was searched. This notice must include both the fact that the search pursuant to FISA was conducted and the identification of any property of that person which was seized, altered, or reproduced during the search. Disclosure for law enforcement purposes of information acquired under 50 U.S.C. § 1821 et seq ., must be accompanied by a statement that such information and any derivative information may only be used in a criminal proceeding with advance authorization from the Attorney General.

The notice requirements relevant to intended use or disclosure of information gleaned from a FISA physical search or derivative information, are similar to those applicable where disclosure or use of information garnered from electronic surveillance is intended. If the United States intends to use or disclose information gathered during or derived from a FISA physical search in a trial, hearing, or other proceeding before a court, department, officer, agency, regulatory body or other authority of the United States against an aggrieved person, the United States must first give notice to the aggrieved person, and the court or other authority. Similarly, if a State or political subdivision of a state intends to use or disclose any information obtained or derived from a FISA physical search in any trial, hearing, or other proceeding before a court, department, officer, agency, regulatory body, or other State or political subdivision against an aggrieved person, the State or locality must notify the aggrieved person, the pertinent court or other authority where the information is to be used, and the Attorney General of the United States of its intention to use or disclose the information.

50 U.S.C. §§ 1825(d)-(g)—U.S. District Court Consideration of Notices, Motions to Suppress, or Discovery Motions . An aggrieved person may move to suppress evidence obtained or derived from a FISA physical search on one of two grounds: that the information was unlawfully acquired; or that the physical search was not made in conformity with an order of authorization or approval. Such a motion to suppress must be made before the trial, hearing or other proceeding involved unless the aggrieved person had no opportunity to make the motion or was not aware of the grounds of the motion.

In camera, ex parte review by a United States district court may be triggered by receipt of notice under Subsections 1825(d) or (e) by a court or other authority; the making of a motion to suppress by an aggrieved person under Subsection 1825(f); or the making of a motion or request by an aggrieved person under any other federal or state law or rule before any federal or state court or authority to discover or obtain applications, orders, or other materials pertaining to a physical search authorized under FISA or to discover, obtain, or suppress evidence or information obtained or derived from a FISA physical search. If the Attorney General files an affidavit under oath that disclosure of any adversary hearing would harm U.S. national security, the U.S. district court receiving notice or before whom a motion or request is pending, or, if the motion is made to another authority, the U.S. district court in the same district as that authority, shall review in camera and ex parte the application, order, and such other materials relating to the physical search at issue needed to determine whether the physical search of the aggrieved person was lawfully authorized and conducted. If the court finds it necessary to make an accurate determination of the legality of the search, the court may disclose portions of the application, order, or other pertinent materials to the aggrieved person under appropriate security procedures and protective orders, or may require the Attorney General to provide a summary of such materials to the aggrieved person.

If the U.S. district court makes a determination that the physical search was not lawfully authorized or conducted, then it must "suppress the evidence which was unlawfully obtained or derived from the physical search of the aggrieved person or otherwise grant the motion of the aggrieved person." If, on the other hand, the court finds that the physical search was lawfully authorized or conducted, the motion of the aggrieved person will be denied except to the extent that due process requires discovery or disclosure.

If the U.S. district court grants a motion to suppress under 50 U.S.C. § 1825(h); deems a FISA physical search unlawfully authorized or conducted; or orders review or grants disclosure of applications, orders or other materials pertinent to a FISA physical search, that court order is final and binding on all federal and state courts except a U.S. Court of Appeals or the U.S. Supreme Court.

As a general matter, where an emergency physical search is authorized under 50 U.S.C. § 1824(d), and a subsequent order approving the resulting search is not obtained, any U.S. person named in the application and any other U.S. persons subject to the search that the FISC judge deems appropriate in the interests of justice must be served with notice of the fact of the application and the period of the search, and must be advised as to whether information was or was not obtained during that period. However, such notice may be postponed or suspended for a period not to exceed 90 days upon an ex parte showing of good cause to the judge, and, upon further good cause shown, the court must forego such notice altogether.

50 U.S.C. § 1825(k)—Consultation by Federal Officers Doing FISA Searches with Federal Law Enforcement Officers . Section 504(b) of P.L. 107-56 , added a new 50 U.S.C. § 1825(k) to the statute, which deals with consultation by federal officers doing FISA searches with federal law enforcement officers. Section 899 of the Homeland Security Act of 2002, P.L. 107-296 expanded this authority to also permit consultation with "law enforcement personnel of a State or political subdivision of a State (including the chief executive officer of that State or political subdivision who has the authority to appoint or direct the chief law enforcement officer of that State or political subdivision)." Under this new language, as amended, federal officers "who conduct physical searches to acquire foreign intelligence information" under 50 U.S.C. § 1821 et seq. , may consult with federal law enforcement officers or state or local law enforcement personnel:

... to coordinate efforts to investigate or protect against

(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;

(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or

(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power.

Such coordination does not preclude certification required under 50 U.S.C. § 1823(a)(7) or entry of an order under 50 U.S.C. § 1824.

50 U.S.C. § 1826—Congressional Oversight

50 U.S.C. § 1826 provides for semiannual congressional oversight of physical searches under FISA. The Attorney General is directed to "fully inform" the Permanent Select Committee on Intelligence of the House of Representatives, the Select Committee on Intelligence of the Senate, and the Senate Judiciary Committee with respect to all physical searches conducted under 50 U.S.C. § 1821 et seq . Also on a semiannual basis, the Attorney General is required to provide a report to "those committees" and to the House Judiciary Committee setting forth: the total number of applications for orders approving FISA physical searches during the preceding six month period; the total number of those orders granted, modified, or denied; the number of such physical searches involving the residences, offices, or personal property of United States persons; the number of occasions, if any, the Attorney General gave notice under 50 U.S.C. § 1825(b); and the total number of emergency physical searches authorized by the Attorney General under section 1824(e) of this title and the total number of subsequent orders approving or denying such physical searches.

50 U.S.C. § 1827—Criminal Sanctions

Section 1827 imposes criminal sanctions for intentionally executing a physical search for foreign intelligence gathering purposes under color of law within the United States except as authorized by statute. In addition, criminal penalties attach to a conviction for intentionally disclosing or using information obtained by a physical search under color of law within the United States for the purpose of gathering intelligence information, where the offender knows or has reason to know that the information was obtained by a physical search not authorized by statute. In either case, this section provides that a person convicted of such an offense faces a fine of not more than $10,000, imprisonment for not more than five years or both. Federal jurisdiction attaches where the offense is committed by an officer or employee of the United States. It is a defense to such a prosecution if the defendant was a law enforcement or investigative officer engaged in official duties and the physical search was authorized and conducted pursuant to a search warrant or court order by a court of competent jurisdiction.

50 U.S.C. § 1828—Civil Action

In addition, an aggrieved person other than a foreign power or an agent of a foreign power as defined under section 1801(a) or 1801(b)(1)(A), whose premises, property, information, or material within the United States was physically searched under FISA; or about whom information obtained by such a search was disclosed or used in violation of 50 U.S.C. § 1827, may bring a civil action for actual damages, punitive damages, and reasonable attorney's fees and other investigative and litigation costs reasonably incurred.

50 U.S.C. § 1829—Physical Searches without FISC Order after Congressional Declaration of War

In times of war, the President, through the Attorney General, may authorize physical searches under FISA without a court order to obtain foreign intelligence information for up to 15 days following a declaration of war by Congress.

Pen registers or trap and trace devices116 used for foreign intelligence gathering purposes

Title IV of FISA, 50 U.S.C. § 1841 et seq ., was added in 1998, amended by P.L. 107-56 , and amended further by Section 314(5) of P.L. 107-108 .

50 U.S.C. § 1842(a)-(c)—Application for an FISC Order Authorizing Installation and Use of Pen Register or Trap and Trace Device

Under 50 U.S.C. § 1842(a)(1), notwithstanding any other provision of law, the Attorney General or a designated attorney for the Government may apply for an order or extension of an order authorizing or approving the installation and use of a pen register or trap and trace device " for any investigation to protect against international terrorism or clandestine intelligence activities, provided such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution " conducted by the Federal Bureau of Investigation (FBI) under guidelines approved by the Attorney General pursuant to E.O. 12333 or a successor order. This authority is separate from the authority to conduct electronic surveillance under 50 U.S.C. § 1801 et seq .

Each such application is made in writing upon oath or affirmation to an FISC judge or to a U.S. magistrate judge publicly designated by the Chief Justice of the United States to hear such applications and grant orders approving installation of pen registers or trap and trace devices on behalf of an FISC judge. The application must be approved by the Attorney General or a designated attorney for the Government. Each application must identify the federal officer seeking to use the pen register or trap and trace device covered by the application. It must also include a certification by the applicant " that the information likely to be obtained is relevant to an ongoing investigation 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. " Under 50 U.S.C. § 1842, as amended by P.L. 107-56 , pen registers and trap and trace devices may now be installed and used not only to track telephone calls, but also other forms of electronic communication such as e-mail.

50 U.S.C. § 1842(d)—Issuance of FISC Order for Installation and Use of Pen Register or Trap and Trace Device

Once an application is made under Section 1842, the judge must enter an ex parte order as requested or as modified approving the installation and use of a pen register or trap and trace device if the application meets the requirements of that section. Generally, an order issued under 50 U.S.C. § 1842 may authorize the installation and use of a pen register or trap and trace device for a period not to exceed 90 days. Extensions of such an order may also be granted for up to 90 days. However, in the case of an application under subsection 1842(c) where the applicant has certified that the information likely to be obtained is foreign intelligence information not concerning a United States person, an order, or an extension of an order for a FISA pen register or trap and trace device may be up to one year.

50 U.S.C. § 1842(f)—Limitation of Liability

Section 1842(f) bars any cause of action in any court against any provider of a wire or electronic communication service, landlord, custodian, or other person (including any officer, employee, agent, or other specified person thereof) that furnishes any information, facilities, or technical assistance under subsection 1842(d) in accordance with the terms of an order issued under this section.

50 U.S.C. § 1843—Emergency Attorney General Authorization of Pen Register or Trap and Trace Device while FISC Order Is Pursued

Section 1843 of Title 18 of the United States Code focuses upon authorization for installation and use of a pen register or trap and trace device under FISA during specified types of emergencies. This provision applies when the Attorney General makes a reasonable determination that:

(1) an emergency requires the installation and use of a pen register or trap and trace device to obtain foreign intelligence information not concerning a United States person or information 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 before an order authorizing the installation and use of the pen register or trap and trace device, as the case may be, can with due diligence be obtained under section 1842 of this title; and

(2) the factual basis for issuance of an order under section 1842(c) of this title to approve the installation and use of the pen register or trap and trace device, as the case may be, exists.

Upon making such a determination, the Attorney General may authorize the installation and use of a pen register or trap and trace device for this purpose if two criteria are met. First, the Attorney General or his designee must inform a judge referred to in Section 1842(b) at the time of the emergency authorization that the decision to install and use the pen register or trap and trace device has been made. Second, an application for a court order authorizing a pen register or trap and trace device under 50 U.S.C. § 1842(a)(1) must be made to the judge as soon as practicable, but no later that 48 hours after the emergency authorization. If no order approving the installation and use of a pen register or trap and trace device is forthcoming, then the installation and use of such pen register or trap and trace device must terminate at the earlier of the time when the information sought is obtained, the time when the application for the order is denied under 50 U.S.C. § 1842, or the expiration of 48 hours from the time the Attorney General made his emergency authorization.

If an application for an order sought under Section 1843(a)(2) is denied, or if the installation and use of the pen register or trap and trace device is terminated, and no order approving it is issued under 50 U.S.C. § 1842(b)(2), then no information obtained or evidence derived from the use of the pen register or trap and trace device may be received in evidence or disclosed in any trial, hearing or other proceeding in any court, grand jury, department, office, agency, regulatory body, legislative committee or other federal state or local authority. Furthermore, in such circumstances, no information concerning a United States person acquired from the use of the pen register or trap and trace device may later be used or disclosed in any other way by federal officers or employees without consent of the U.S. person involved, with one exception. If the Attorney General approves the disclosure because the information indicates a threat of death or serious bodily harm to anyone, then disclosure without consent of the U.S. person involved is permitted.

50 U.S.C. § 1844—Use of Pen Register or Trap and Trace Device without FISC Order after Congressional Declaration of War

If Congress declares war, then, notwithstanding any other provision of law, the President, through the Attorney General, may authorize use of a pen register or trap and trace device without a court order to acquire foreign intelligence information for up to 15 calendar days after the declaration of war.

50 U.S.C. § 1845—Use of Information Obtained from FISA Pen Register or Trap and Trace Device

50 U.S.C. § 1845 sets parameters with respect to the use of information obtained through the use of a pen register or trap and trace device under 50 U.S.C. § 1841 et seq . Federal officers and employees may only use or disclose such information with respect to a U.S. person without the consent of that person in accordance with Section 1845. Any disclosure by a Federal officer or employee of information acquired pursuant to FISA from a pen register or trap and trace device must be for a lawful purpose. Disclosure for law enforcement purposes of information acquired under 50 U.S.C. § 1841 et seq . is only permitted where the disclosure is accompanied by a statement that the information and any derivative information may only be used in a criminal proceeding with the advance authorization of the Attorney General.

Under 50 U.S.C. § 1845(c), when the United States intends to enter into evidence, use, or disclose information obtained by or derived from a FISA pen register or trap and trace device against an aggrieved person in any federal trial, hearing, or proceeding, notice requirements must be satisfied. The Government, before the trial, hearing, or proceeding or a reasonable time before the information is to be proffered, used or disclosed, must give notice of its intent both to the aggrieved person involved and to the court or other authority in which the information is to be disclosed or used.

If a state or local government intends to enter into evidence, use, or disclose information obtained or derived from such a trap and trace device against an aggrieved person in a state or local trial, hearing or proceeding, it must give notice to the aggrieved person and to the Attorney General of the United States of the state or local government's intent to disclose or use the information.

50 U.S.C. §1845(c)-(f)—U.S. District Court Consideration of Notices, Motions to Suppress, or Discovery Motions . The aggrieved person in either case may move to suppress the evidence obtained or derived from a FISA pen register or trap and trace device on one of two grounds: that the information was unlawfully acquired; or that the use of the pen register or trap and trace device was not made in conformity with an order of authorization or approval under 50 U.S.C. § 1841 et seq .

If notice is given under 50 U.S.C. §§ 1845(c) or (d), or a motion or request is made to suppress or to discover or obtain any applications, orders, or other materials relating to use of a FISA pen register or trap and trace device or information obtained by or derived from such use, the Attorney General may have national security concerns with respect to the effect of such disclosure or of an adversary hearing. If he files an affidavit under oath that disclosure or any adversary hearing would harm the national security of the United States, the United States district court in which the motion or request is made, or where the motion or request is made before another authority, the U.S. district court in the same district, shall review in camera and ex parte the application, order, and other relevant materials to determine whether the use of the pen register or trap and trace device was lawfully authorized and conducted. In so doing, the court may only disclose portions of the application, order or materials to the aggrieved person or order the Attorney General to provide the aggrieved person with a summary of these materials if that disclosure is necessary to making an accurate determination of the legality of the use of the pen register or trap and trace device.

Should the court find that the pen register or trap and trace device was not lawfully authorized or conducted, it may suppress the unlawfully obtained or derived evidence or "otherwise grant the motion of the aggrieved person." On the other hand, if the court finds the pen register or trap and trace device lawfully authorized and conducted, it may deny the aggrieved person's motion except to the extent discovery or disclosure is required by due process. Any U.S. district court orders granting motions or request under Section 1845(g), finding unlawfully authorized or conducted the use of a pen register or trap and trace device, or requiring review or granting disclosure of applications, orders or other materials regarding installation and use of a pen register or trap and trace device are deemed final orders. They are binding on all federal and state courts except U.S. courts of appeals and the U.S. Supreme Court.

50 U.S.C. § 1846—Congressional Oversight

Section 1846 deals with congressional oversight of the use of FISA pen registers and trap and trace devices. It requires the Attorney General semiannually to fully inform the House Permanent Select Committee on Intelligence, the Senate Select Committee on Intelligence, and the House and Senate Judiciary Committees regarding all FISA uses of pen registers and trap and trace devices. In addition, the Attorney General, on a semi-annual basis, must report to the House Permanent Select Committee on Intelligence, the Senate Select Committee on Intelligence, the House Judiciary Committee and the Senate Judiciary Committee on the total number of applications made for orders approving the use of such pen registers and trap and trace devices; the total number of such orders granted, modified, or denied during the previous six month period; the total number of pen registers and trap and trace devices whose installation and use was authorized by the Attorney General on an emergency basis under section 1843 of this title, and the total number of subsequent orders approving or denying the installation and use of such pen registers and trap and trace devices.

Access to certain business records or other tangible things for foreign intelligence purposes

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.

50 U.S.C. § 1861(a)(1)—Applications for FISC Order for Production of any Tangible Thing

Under 50 U.S.C. § 1861(a)(1), subject to Subsection 1861(a)(3), the Director of the FBI, or his designee (who must be at the Assistant Special Agent in Charge level or higher in rank) may apply 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.

Subsection 1861(a)(2) requires that such an investigation must be conducted under guidelines approved by the Attorney General under E.O. 12333 or a successor order and prohibits such an investigation of a United States person based solely upon First Amendment protected activities.

Under Subsection 1861(a)(3), which was added by Section 106(a)(2) of P.L. 109-177 , if the application is for an order requiring 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.

An application for an order under Section 1861 must be made to an FISC judge or to a U.S. magistrate judge publicly designated by the Chief Justice of the United States to hear such applications and grant such orders for the production of tangible things on behalf of an FISC judge. The application must contain a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with 50 U.S.C. § 1861(a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.

50 U.S.C. § 1861(c)—Issuance of FISC Production Order

When such an application is made, if the judge finds that the application meets the requirements of subsections 1861(a) and (b), he or she must enter an ex parte order as requested, or as modified, approving the release of tangible things. The order must direct that minimization procedures adopted pursuant to subsection 1861(g) be followed.

An order issued under 50 U.S.C. § 1861(c) must: describe the tangible things that are ordered to be produced with sufficient particularity to permit them to be fairly identified; include the date on which the tangible things must be provided, which must allow a reasonable period of time within which the tangible things can be assembled and made available; and provide recipients with clear and conspicuous notice of nondisclosure requirements under Subsection 1861(d). The order may only require the production of a tangible thing which may be subject to a subpoena duces tecum issued by a court of the United States in aid of a grand jury investigation or to any other order issued by a court of the United States directing the production of records or tangible things. An order issued under 50 U.S.C. § 1861(c) shall not disclose that it is issued for purposes of an investigation described in Subsection 1861(a).

50 U.S.C. § 1861(d)—Prohibition on Disclosure

Subsection 1861(d) prohibits any person to disclose that the FBI has sought or obtained tangible things under Section 1861, except where the disclosure is made to persons necessary to the production of tangible things involved, to an attorney to obtain legal advice or assistance with respect to the production of things in response to the order, or to other persons as permitted by the Director of the FBI or his designee. A person to whom such disclosure is made is also subject to these nondisclosure requirements, and must be put on notice of the nondisclosure requirements by the person making such disclosures to him or her. At the request of the Director of the FBI or his designee, anyone making or intending to make such a disclosure must identify to the Director or his designee the person to whom the disclosure was or is to be made.

50 U.S.C. § 1861(e)—Limitation on Liability for Good Faith Compliance with Production Order

Subsection 1861(e) precludes liability for persons who, in good faith, produce tangible things under such a Section 1861 order. It further indicates that production does not constitute a waiver of any privilege in any other proceeding or context.

50 U.S.C. § 1861(f)—Petitions for Review of Production Orders and Related Nondisclosure Orders before FISC Petition Review Pool

Subsection 1861(f), which was added by Subsection 106(f) of P.L. 109-177 and amended by Section 3 of P.L. 109-178 , gives a person in receipt of a production order under 50 U.S.C. § 1861 a means by which to challenge the legality of such order by filing a petition before the petition review pool of the FISC established by 50 U.S.C. § 1803(e)(1). The recipient of a production order must wait at least one year after issuance of that order to challenge the nondisclosure order imposed in connection with the production order by filing a petition to modify or set aside the nondisclosure order before the petition review pool. The presiding judge must assign a petition filed with the pool under subsection 1861(f)(2)(A)(i) to one of the FISC judges in the pool immediately, and the judge receiving such petition must conduct an initial review of it within 72 hours. If the petition is deemed frivolous, the assigned judge must immediately deny it and affirm the production order or nondisclosure order at issue. If the assigned judge does not find the petition frivolous, he or she must promptly consider it under the Procedures for Review of Petitions filed pursuant to Section 501(f) of the Foreign Intelligence Surveillance Act of 1978, as Amended, established under 50 U.S.C. § 1803(e)(2), and provide a written statement for the record of the reasons for any determination made. An order setting aside a nondisclosure order may be stayed, upon request of the Government, pending review by the Court of Review.

A petition to modify or set aside a production order may only be granted if the judge finds the order does not meet the requirements of 50 U.S.C. § 1861 or is otherwise unlawful. If the judge does not modify or set aside the production order, he or she must immediately affirm the order and order the recipient to comply with it. A petition to modify or set aside a nondisclosure order may only be granted if the judge finds that there is no reason to believe that disclosure may endanger U.S. national security; interfere with a criminal, counterterrorism, or counterintelligence investigation; interfere with diplomatic relations; or endanger the life or physical safety of any person. If, upon the filing of a petition to modify or set aside a nondisclosure order, the Attorney General, Deputy Attorney General, an Assistant Attorney General, or the Director of the FBI certifies that disclosure may endanger the national security of the United States or interfere with diplomatic relations, that certification will be treated as conclusive unless the judge finds that the certification was made in bad faith. If a petition to modify or set aside a nondisclosure order is denied, the recipient may not file another petition to modify or set aside that nondisclosure order for one year. A production order or nondisclosure order that is not explicitly modified or set aside under Section 1861 remains in full effect.

The Government or any person receiving a production or nondisclosure order may file a petition before the Court of Review to review a decision by a petition review pool judge to affirm, modify, or set aside such order. The Court of Review must provide a written statement of the reasons for its decision for the record. The record will be transmitted under seal to the U.S. Supreme Court for review on a petition for certiorari by the Government or any person receiving such order.

Judicial proceedings under 50 U.S.C. § 1861(f) are to be concluded as expeditiously as possible, and the record of such proceedings is to 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. Petitions are to be filed under seal. Upon the request of the Government, the court in proceedings under Subsection 1861(f) shall review ex parte and in camera any Government submissions, or portions thereof, which may contain classified information.

50 U.S.C. § 1861(h)—Use of Information Acquired from Tangible Things Received Under Production Order

Subsection 1861(g), as added by Subsection 106(g) of P.L. 109-177 , requires the Attorney General to adopt specific minimization procedures governing retention and dissemination by the FBI or any tangible things, or information in those things, received by the FBI in response to an order under 50 U.S.C. § 1861. Subsection 1861(h), also added by Subsection 106(g) of P.L. 109-177 , provides that information acquired from tangible things received by the FBI pursuant to an order under 50 U.S.C. § 1861 concerning any U.S. person may be used and disclosed by federal officers and employees without that U.S. person's consent only in accordance with these minimization procedures. Otherwise privileged information acquired from tangible things received by the FBI title V of FISA, 50 U.S.C. §§ 1861-1862, retains its privileged character. Information acquired by the FBI under Section 1861 orders may only be used or disclosed by federal officers or employees for lawful purposes.

50 U.S.C. § 1862—Congressional Oversight

50 U.S.C. § 1862 deals with congressional oversight. Subsection 1862(a), as amended by Subsection 106(h) of P.L. 109-177 , requires the Attorney General annually to fully inform the House Permanent Select Committee on Intelligence, the Senate Select Committee on Intelligence, and the House and Senate Committees on the Judiciary regarding all request for production of tangible things under Section 1861. Subsection 1862(b) requires the Attorney General, in April of each year, to report to the House and Senate Judiciary Committees with respect to the previous calendar year on the total number of applications for Section 1861 orders for production of tangible things; the total number of such orders granted, modified, or denied; and the number of such orders either granted, modified, or denied for the production of each of the following: library circulation records, library patron lists, book sales records, or book customer lists; firearms sales records; tax return records; educational records; and medical records containing information that would identify a person. Under Subsection 1862(c), in April of each year, the Attorney General is required to submit an unclassified report to Congress with respect to the preceding year setting forth the total number of applications made for orders approving requests for the production of tangible things under 50 U.S.C. § 1861; and the total number of such orders either granted, modified, or denied.

Section 106A of P.L. 109-177 directs the Inspector General of the U.S. Department of Justice to perform a comprehensive audit of the effectiveness and use, including improper or illegal use, of the investigative authority under title V of FISA, 50 U.S.C. § 1861 et seq. , for fiscal years 2002-2006, and sets out detailed requirements for the audit. The results of the audit are to be submitted in two unclassified reports (one for 2002-2004 and one for 2005-2006) to the House and Senate Judiciary Committees, the House Permanent Select Committee on Intelligence, and the Senate Select Committee on Intelligence.

50 U.S.C. § 1871—Additional Reporting Requirements

Section 6002 of P.L. 108-458 , the Intelligence Reform and Terrorism Prevention Act of 2004, created additional semiannual reporting requirements under FISA. Under the new language, the Attorney General, on a semiannual basis, must submit to the House Permanent Select Committee on Intelligence, the Senate Select Committee on Intelligence, the House Judiciary Committee and the Senate Judiciary Committee, in a manner consistent with protection of national security, reports setting forth with respect to the preceding six month period:

(1) the aggregate number of persons targeted for orders issued under this Act, including a breakdown of those targeted for—

(A) electronic surveillance under section 105 [50 U.S.C. § 1805];

(B) physical searches under section 304 [50 U.S.C. § 1824];

(C) pen registers under section 402 [50 U.S.C. § 1842]; and

(D) access to records under section 501 [50 U.S.C. § 1861];

(2) the number of individuals covered by an order issued pursuant to section 101(b)(1)(C) [50 U.S.C. § 1801(b)(1)(C)];

(3) the number of times that the Attorney General has authorized that information obtained under this Act may be used in a criminal proceeding or any information derived therefrom may be used in a criminal proceeding;

(4) a summary of significant legal interpretations of this Act involving matters before the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review, including interpretations presented in applications or pleadings filed with the Foreign Intelligence Surveillance Court or the Foreign Intelligence Court of Review by the Department of Justice; and

(5) copies of all decisions (not including orders) or opinions of the Foreign Intelligence Surveillance Court or Foreign Intelligence Surveillance Court of Review that include significant construction or interpretation of the provisions of this Act.

Private Right of Action in U.S. District Court for Those Aggrieved by Willful Violations of 50 U.S.C. §§ 1806(a), 1825(a), or 1845(a) of FISA

In addition to provisions which amended FISA explicitly, other provisions of the USA PATRIOT Act, P.L. 107-56 , touched upon FISA, at least tangentially. For example, Section 223 of P.L. 107-56 , among other things, created a new 18 U.S.C. § 2712. This new section, in part, created an exclusive private right of action for any person aggrieved by any willful violation of sections 106(a), 305(a), or 405(a) of FISA (50 U.S.C. §§ 1806(a), 1825(a), 1845(a), respectively) to be brought against the United States in U.S. district court to recover money damages. Such monetary relief would amount to either actual damages or $10,000, whichever is greater; and reasonably incurred litigation costs. It also set forth applicable procedures.

Sunset Provisions

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.

Section 6001(a) of the Intelligence Reform and Terrorism Prevention Act of 2004, P.L. 108-458 , expanded the definition of "agent of a foreign power" in 50 U.S.C. § 1801(b)(1)(C) to include any person other than a U.S. person who engages in international terrorism or activities in preparation for international terrorism. Under Section 103 of P.L. 109-177 , this so-called "lone wolf" terrorist provision will also sunset on December 31, 2009, except with respect to any particular foreign intelligence investigation that began before that date, or with respect to any particular offense or potential offense that began or occurred before that date.

Published Decisions of the FISC and the U.S. Foreign Intelligence Surveillance Court of Review

The FISC Decision

Summary

In its May 17, 2002, decision, the FISC considered a government motion for the court "to vacate the minimization and 'wall' procedures in all cases now or ever before the Court, including this Court's adoption of the Attorney General's July 1995 intelligence sharing procedures, which are not consistent with new intelligence sharing procedures submitted for approval with this motion." The court viewed the new intelligence sharing procedures under review as proposed new Attorney General minimization procedures. In a memorandum and order written by the then Presiding Judge, U.S. District Court Judge Royce Lamberth, issued on the last day of his tenure on the FISC, and concurred in by all of the judges then sitting on the FISC, the FISC granted the Department of Justice (DOJ) motion with significant modifications to section II.B. of what the FISC characterized as the proposed minimization procedures. The court required a continuation of the Attorney General's 1995 minimization procedures, as subsequently modified by the Attorney General and the Deputy Attorney General, and preservation of a "wall" procedure to maintain separation between FBI criminal investigators and DOJ prosecutors and raw FISA investigation data regarding the same facts or individuals, so as to prevent these law enforcement personnel from becoming "de facto partners in FISA surveillances and searches," while permitting extensive sharing of information between such investigations.

The FISC was particularly concerned with those aspects of section II.B. of the proposed procedures which would permit criminal prosecutors and law enforcement officers to initiate, direct or control electronic surveillance or physical searches under FISA, with an eye towards law enforcement objectives, rather than foreign intelligence information gathering. The FISC set the stage for its analysis by recounting a significant number of past instances where FISA applications had included false, inaccurate or misleading information regarding information sharing or compliance with "wall" procedures in FBI affidavits or, in one case, in a statutorily required certification by the FBI Director; and past occasions where the FISC's orders had been violated in regard to information sharing and unauthorized dissemination of FISA information to criminal investigators and prosecutors. While both the FBI's and DOJ's Offices of Professional Responsibility had been investigating these incidents for over a year at the time of the writing of the opinion, the court had not been advised of any explanations as to how such misrepresentations had occurred. The court's dissatisfaction with these irregularities formed a backdrop for its analysis of the motion and applications before it.

Discussion of the Memorandum Opinion and Order

Its analysis was based upon its reading of the statutory language and premised, in part, on the fact that the USA PATRIOT Act had not amended the provisions of FISA dealing with minimization requirements, although other FISA provisions had been modified. The minimization provisions with respect to both electronic surveillance and physical searches under FISA continue to be designed to "minimize the acquisition and retention, and prohibit the dissemination, of non-publicly available information concerning unconsenting United States persons, consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information ." The court regarded the standard it applied to the proposed procedures before it as "mandated in [50 U.S.C.] § 1805(a)(4) and § 1824(a)(4), which state that 'the proposed minimization procedures meet the definition of minimization procedures under § 101(h), [§ 1801(h) and §1824(4)] of the act.'"

In its memorandum opinion, the FISC first discussed the court's jurisdiction, noting that the text of the statute "leaves little doubt that the collection of foreign intelligence information is the raison d ' etre for the FISA." The court found support for this conclusion in a review of pertinent provisions of the act. It found further support in E.O. 12139 and E.O. 12949, which give the Attorney General authority to approve the filing of applications for orders for electronic surveillances and physical searches and authorize the Director of the FBI and other senior executives to make required certifications under FISA for the "purpose of obtaining foreign intelligence information." The FISC therefore concluded that its jurisdiction was limited to granting FISA orders for electronic surveillance and physical searches for the collection of foreign intelligence information under the standards and procedures prescribed in the act. In reaching this conclusion, the FISC, in a footnote, characterized the issue before it as "whether the FISA authorizes electronic surveillance and physical searches primarily for law enforcement purposes so long as the Government also has 'a significant' foreign intelligence purpose." Rejecting the approach taken by the Government in its supplemental brief in the case, the Court stated that "its decision is not based on the issue of its jurisdiction but on the interpretation of minimization procedures." Maintaining its focus upon the minimization procedures, the FISC also declined to reach the question raised by the Attorney General "whether FISA may be used primarily for law enforcement purposes."

The court also regarded the scope of its findings regarding minimization as applicable "only to communications concerning U.S. persons as defined in § 1801(i) of the act: U.S. citizens and permanent resident aliens whether or not they are named targets in the electronic surveillance and physical searches." It emphasized that its opinion was not applicable to communications of foreign powers as defined under 50 U.S.C. § 1801(a), or to non-U.S. persons.

After stating its continued approval of the "Standard Minimization Procedures for a U.S. Person Agent of a Foreign Power," the court turned its attention to two sections of supplementary minimization procedures adopted by the Attorney General on March 6, 2002, regarding "II. Intelligence sharing procedures concerning the Criminal Division," and "III. Intelligence sharing procedures concerning a USAO [U.S. Attorney's Office]." The FISC regarded these procedures as minimization procedures as that term is defined under FISA by virtue of the fact that they were adopted by the Attorney General and were "designed to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons." Therefore, these procedures were measured against the standard for minimization procedures set forth in 50 U.S.C. §§ 1805(a)(4) and 1824(a)(4):

... The operative language of each section to be applied by the Court provides that minimization procedures must be reasonably designed in light of their purpose and technique, and mean—

specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, [search] to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information. §1801(h)(1) and §1821(4)(A).

The court then reviewed the minimization procedures upon which it had been relying prior to the application before it, to wit, the Attorney General's 1995 "Procedures for Contacts between the FBI and Criminal Division Concerning FI [Foreign Intelligence] and Foreign Counterintelligence Investigations,"as augmented by the Attorney General in January 2000 and expanded further by the Deputy Attorney General in August 2001. The FISC indicated that these procedures permitted the following "substantial consultation and coordination":

a. reasonable indications of significant federal crimes in FISA cases are to be reported to the Criminal Division of the Department of Justice;

b. [t]he Criminal Division may then consult with the FBI and give guidance to the FBI aimed at preserving the option of criminal prosecution, but may not direct or control the FISA investigation toward law enforcement objectives;

c. the Criminal Division may consult further with the appropriate U.S. Attorney's Office about such FISA cases;

d. on a monthly basis senior officials of the FBI provide briefings to senior officials of the Justice Department, including OIPR [Office of Intelligence Policy and Review] and the Criminal Division, about intelligence cases, including those in which FISA is or may be used;

e. all FBI 90-day interim reports and annual reports of counterintelligence investigations, including FISA cases, are being provided to the Criminal Division, and must now contain a section explicitly identifying any possible federal criminal violations;

f. all requests for initiation or renewal of FISA authority must now contain a section devoted explicitly to identifying any possible federal criminal violations ;

g. the FBI is to provide monthly briefings directly to the Criminal Division concerning all counterintelligence investigations in which there is a reasonable indication of a significant federal crime;

h. prior to each briefing the Criminal Division is to identify (from FBI reports) those intelligence investigations about which it requires additional information and the FBI is to provide the information requested; and

i. since September 11, 2001, the requirement that OIPR be present at all meetings and discussions between the FBI and Criminal Division involving certain FISA cases has been suspended; instead, OIPR reviews a daily briefing book to inform itself and this Court about those discussions.

The FISC indicated further that it "routinely approved the use of information screening 'walls' proposed by the government in its applications" to maintain both the appearance and the fact that FISA surveillances and searches were not being used " sub rosa for criminal investigations." In March 2000, September 2000, and March 2001, the FISC was advised by the Department of Justice of a significant number of erroneous statements or omissions of material facts in FISA applications, almost all of which involved misstatements or omissions as to information sharing and unauthorized disseminations to criminal investigators and prosecutors. Although the FBI and the Department of Justice Office of Professional Responsibility had been investigating the circumstances involved in these misstatements and omissions for over a year, as of the date of the opinion, the court had not been advised of the reasons for these erroneous statements. The court responded to these concerns in 2001 by instituting supervisory measures to assess compliance with "wall" procedures.

In the case before the FISC, the government moved that all "wall" procedures be eliminated in international terrorism surveillances and physical searches under FISA. The FISC indicated that the new 2002 procedures proposed by the Attorney General would apply to two types of cases in which " FISA is the only effective tool available to both counterintelligence and criminal investigators" (emphasis supplied)—those involving overlapping investigations (which the court described as cases, usually international terrorism cases, in which separate intelligence and criminal investigations of the same FISA target who is a U.S. person are conducted by different FBI agents, where separation can easily be maintained) and those involving overlapping interests (i.e., cases in which one investigation of a U.S. person FISA target is conducted by a team of FBI agents with both intelligence and criminal interests "usually involving espionage and similar cases in which separation is impractical"). In both types of investigations, the FISC indicated that the 2002 proposed minimization procedures provided authority for "extensive consultations between the FBI and criminal prosecutors 'to coordinate efforts to investigate or protect against actual or potential attack, sabotage, international terrorism and clandestine intelligence activities by foreign powers and their agents....'" Such consultation is expressly provided for in 50 U.S.C. §§ 1806(k)(1) and 1825(k)(1).

Under the proposed minimization procedures, those consultations would include providing prosecutors with access to "all information" developed in FBI counterintelligence investigations, including through FISA, among other information. Section II.B. of the proposed minimization techniques would authorize criminal prosecutors to "consult extensively and provide advice and recommendations to intelligence officials about 'all issues necessary to the ability of the United States to investigate or protect against foreign attack, sabotage, terrorism, and clandestine intelligence activities.'" The FISC was particularly concerned about the authority given criminal prosecutors under Section II.B. "to advise FBI intelligence officials concerning ' the initiation, operation, continuation, or expansion of FISA searches or surveillance .'" The court regarded this provision as "designed to use this Court's orders to enhance criminal investigation and prosecution, consistent with the government's interpretation of the recent amendments that FISA may now be 'used primarily for a law enforcement purpose.'" Under section III of the proposed procedures, U.S. attorneys are given the authority to engage in consultations to the same extent as the Criminal Division of DOJ under parts II.A. and II.B. in cases involving international terrorism. The FISC interpreted these procedures as giving criminal prosecutors "a significant role directing FISA surveillances and searches from start to finish in counterintelligence cases involving overlapping intelligence and criminal investigations or interests, guiding them to criminal prosecution."

In light of the court's past experience with FISA searches and surveillances, the FISC found the proposed procedures to be "designed to enhance the acquisition, retention and dissemination of evidence for law enforcement purposes, instead of being consistent with the need of the United States to 'obtain, produce, and disseminate foreign intelligence information ' (emphasis added [by the FISC]) as mandated in § 1801(h) and § 1821(4)." The court regarded the procedures as, in effect, an effort by the government to amend FISA's definition of minimization procedures in ways that Congress had not and to substitute FISA for the electronic surveillance requirements of Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510 et seq. , and for the search warrant requirements in Rule 41 of the Federal Rules of Criminal Procedure. The court found this unacceptable. Nor was the court persuaded by the government's contention that the 1995 procedures' prohibition against criminal prosecutors "directing or controlling" FISA cases should be revoked. "If criminal prosecutors direct both the intelligence and criminal investigations, or a single investigation having combined interests, coordination becomes subordination of both investigations or interests to law enforcement objectives."

The FISC stated:

Advising FBI intelligence officials on the initiation, operation, continuation or expansion of FISA surveillances and searches of U.S. persons means that criminal prosecutors will tell the FBI when to use FISA (perhaps when they lack probable cause for a Title III electronic surveillance), what techniques to use, what information to look for, what information to keep as evidence and when use of FISA can cease because there is enough evidence to arrest and prosecute. The 2002 minimization procedures give the Department's criminal prosecutors every legal advantage conceived by Congress to be used by U.S. intelligence agencies to collect foreign intelligence information, ... based on a standard that the U.S. person is only using or about to use the places to be surveilled or searched, without any notice to the target unless arrested and prosecuted, and, if prosecuted, no adversarial discovery of the FISA applications and warrants. All of this may be done by use of procedures intended to minimize collection of U.S. person information, consistent with the need of the United States to obtain and produce foreign intelligence information. If direction of counterintelligence cases involving the use of highly intrusive FISA surveillances and searches by criminal prosecutors is necessary to obtain and produce foreign intelligence information, it is yet to be explained to the Court.

Having found section II.B. of the proposed minimization procedures inconsistent with the statutory standard for minimization procedures under 50 U.S.C. §§ 1801(h) and 1821(4), the court substituted its own language in place of the second and third paragraphs of II.B. as submitted by the Attorney General. The substitute language permitted consultation between the FBI, the Criminal Division of DOJ, and the Office of Intelligence Policy and Review of DOJ (OIPR) "to coordinate their efforts to investigate or protect against foreign attack or other grave hostile acts, sabotage, international terrorism, or clandestine intelligence activities by foreign powers or [agents of foreign powers]," so that the goals and objectives of both the intelligence and law enforcement investigations or interests may be achieved. However, it prohibited law enforcement officials from making recommendations to intelligence officials regarding initiation, operation, continuation, or expansion of FISA surveillances and searches. In addition, the substitute language foreclosed law enforcement officials from directing or controlling the use of FISA procedures to enhance criminal prosecution; nor was advice intended to preserve the option of criminal prosecution to be permitted to inadvertently result in the Criminal Division directing or controlling an investigation involving FISA surveillance or physical searches to achieve law enforcement objectives. While direct consultation and coordination were permitted, the substitute language required OIPR to be invited to all such consultations and, where OIPR was unable to attend, the language required OIPR to be apprized forthwith in writing of the substance of the consultations, so that the FISC could be notified at the earliest opportunity.

In its order accompanying the FISC memorandum opinion, the court held that the proposed minimization procedures, so modified, would be applicable to all future electronic surveillances and physical searches under FISA, subject to the approval of the court in each instance. In this order, the court also adopted a new administrative rule to monitor compliance. The new Rule 11 regarding criminal investigations in FISA cases provided:

All FISA applications shall include informative descriptions of any ongoing criminal investigations of FISA targets, as well as the substance of any consultations between the FBI and criminal prosecutors at the Department of Justice or a United States Attorney's Office.

The Decision of the U.S. Foreign Intelligence Surveillance Court of Review

Summary

The FISC memorandum opinion and order discussed above were not appealed directly. Rather, the Department of Justice sought review in the U.S. Foreign Intelligence Surveillance Court of Review (Court of Review) of an FISC order which authorized electronic surveillance of an agent of a foreign power, but imposed restrictions on the government flowing from the FISC's May 17 th decision, and of an order renewing that surveillance subject to the same restrictions. Because of the electronic surveillance context of these orders, the Court of Review's analysis was cast primarily in terms of such surveillance, although some aspects of its analysis may have broader application to other aspects of FISA. In its first decision ever, the Court of Review, in a lengthy per curiam opinion issued on November 18, 2002, reversed and remanded the FISC orders. In so doing the Court of Review emphasized that the May 17 th decision, although never appealed, was "the basic decision before us and it [was] its rationale that the government challenge[d]." After reviewing the briefs of the government and two amici curiae, the American Civil Liberties Union (joined on the brief by the Center for Democracy and Technology, the Center for National Security Studies, the Electronic Privacy Information Center, and the Electronic Frontier Foundation) and the National Association of Criminal Defense Lawyers, the Court of Review concluded that "FISA, as amended by the Patriot Act, supports the government's position, and that the restrictions imposed by the FISA court are not required by FISA or the Constitution."

Discussion of the Opinion

The Court of Review began its analysis by articulating its view of the May 17 th FISC decision. The Court of Review stated that the FISC appeared to proceed in its opinion from the assumption that FISA constructed a barrier between counterintelligence/intelligence officials and law enforcement officers in the Executive Branch, but did not support that assumption with any relevant language from the statute. The Court of Review opined that this "wall" was implicit in the FISC's "apparent" belief that "it can approve applications for electronic surveillance only if the government's objective is not primarily directed toward criminal prosecution of the foreign agents for their foreign intelligence activity," while referencing neither statutory language in FISA nor USA PATRIOT Act amendments, which the government argued altered FISA to permit an application even if criminal prosecution was the primary goal. Instead, the Court of Review noted that the FISC relied upon its statutory authority to approve "minimization procedures" in imposing the restrictions at issue.

The Court of Review stated that the government raised two main arguments: First, DOJ contended that the restriction, recognized by several courts of appeals prior to the enactment of the USA PATRIOT Act, that FISA could only be used if the government's primary purpose in gathering foreign intelligence information was not criminal prosecution, was not supported by the statutory language or the legislative history of FISA. This argument was not presented to the FISC, but the Court of Review indicated that it could entertain the argument, because proceedings before the FISC and before the Court of Review were ex parte . Second, the government argued that, even if the primary purpose test was appropriate prior to the passage of the USA PATRIOT Act, the amendments made by that act eliminated that concept. The government also argued that the FISC's interpretation of the minimization procedures provisions misconstrued those provisions and amounted to "an end run" around the USA PATRIOT Act amendments. DOJ argued further that the FISC minimization procedures so intruded into the Department's operations as to be beyond the constitutional authority of Article III judges. Finally, DOJ contended that application of the primary purpose test in a FISA case was not constitutionally compelled under the Fourth Amendment.

The Court of Review noted that, as enacted in 1978, FISA authorized the grant of an application for electronic surveillance to obtain foreign intelligence information if there is probable cause to believe that "the target of the electronic surveillance is a foreign power or an agent of a foreign power," and that "each of the facilities or places at which the surveillance is directed is being used, or is about to be used by a foreign power or an agent of a foreign power." The reviewing court focused upon the close connection between criminal activity and the definitions of "agent of a foreign power" applicable to United States persons contained in 50 U.S.C. §§ 1801(b)(2)(A) and (C), to wit: "any person who 'knowingly engages in clandestine intelligence activities ... which activities involve or may involve a violation of the criminal statutes of the United States,' or 'knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor.'" The court noted further that FISA defined "international terrorism" to mean "activities that 'involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State.'" "Sabotage," as defined by FISA, covers activities that "'involve a violation of chapter 105 of [the criminal code] [18 U.S.C. §§ 2151-2156], or that would involve such a violation if committed against the United States.'" For purposes of its opinion, the Court of Review described these types of crimes as "foreign intelligence crimes."

The court observed that, as passed in 1978, 50 U.S.C. §1804 required a national security official of the Executive Branch, usually the FBI Director, to certify that "the purpose" of the electronic surveillance under FISA was to obtain foreign intelligence information, and opined that "it is virtually impossible to read the 1978 FISA to exclude from its purpose the prosecution of foreign intelligence crimes, most importantly because, as we have noted, the definition of an agent of a foreign power—if he or she is a U.S. person—is grounded on criminal conduct." It found further support for its view that "foreign intelligence information" included evidence of "foreign intelligence crimes" from the legislative history as reflected in H.Rept. 95-1283 and S.Rept. 95-701, while acknowledging that the House report also stated that FISA surveillances "are not primarily for the purpose of gathering evidence of a crime. They are to obtain foreign intelligence information, which when it concerns United States persons must be necessary to important national concerns." The Court of Review regarded the latter statement as an observation rather than a proscription.

The Court of Review saw the U.S. Court of Appeals for the Fourth Circuit's decision in United States v. Truong Dinh Hung , 629 F.2d 908 (4 th Cir. 1980), a decision based upon constitutional analysis rather than FISA provisions, as the springboard for the "primary purpose" test cases interpreting FISA and upholding FISA surveillances against Fourth Amendment challenges. After reviewing a number of the FISA cases applying the primary purpose test, the Court of Review concluded that a dichotomy between foreign intelligence gathering and criminal investigations implicit in the application of the primary purpose test was not statutorily compelled. The court found that FISA, as originally passed, did not "preclude or limit the government's use or proposed use of foreign intelligence information, which included evidence of certain kinds of criminal activity, in a criminal prosecution." In addition, the Court of Review, relying on arguments of the Department of Justice and the language of subsection 1805(a)(5), interpreted 50 U.S.C. §§ 1805 of FISA as originally enacted as not contemplating that the [FISC] would inquire into the government's purpose in seeking foreign intelligence information.

Further, the court rejected the FISC's characterization of the Attorney General's 1995 procedures, as modified and augmented in January 2000 and August 2001, as minimization procedures. These procedures were formally adopted by the FISC as minimization procedures defined in 50 U.S.C. §§ 1801(h) and 1821(4) in November 2001, after passage of the USA PATRIOT Act, and were incorporated in all applicable orders and warrants granted since their adoption by the FISC. On March 6, 2002, the Attorney General adopted new "Intelligence Sharing Procedures," intended to supercede prior procedures, to "allow complete exchange of information and advice between intelligence and law enforcement officials," to "eliminate the 'direction and control' test," and to permit "exchange of advice between the FBI, OIPR, and the Criminal Division regarding 'the initiation, operation, continuation, or expansion of FISA searches or surveillance." The following day, the government filed a motion with the FISC advising the court of the Attorney General's adoption of the 2002 procedures, seeking to have that court adopt the new procedures in all matters before the FISC and asking the court to vacate its orders adopting the prior procedures as minimization procedures and imposing "wall" procedures in certain types of cases. That motion led to the FISC decision to adopt the 2002 procedures with modifications that was, by reference, before the Court of Review in its November 18, 2002, decision.

The Court of Review characterized the FISC's adoption of the Justice Department's 1995 procedures, as modified and augmented, as minimization procedures as follows:

Essentially, the FISA court took portions of the Attorney General's augmented 1995 Procedures—adopted to deal with the primary purpose standard—and imposed them generically as minimization procedures. In doing so, the FISA court erred. It did not provide any constitutional basis for its action—we think there is none—and misconstrued the main statutory provision on which it relied. The court mistakenly categorized the augmented 1995 Procedures as FISA minimization procedures and then compelled the government to utilize a modified version of those procedures in a way that is clearly inconsistent with the statutory purpose.

The Court of Review interpreted "minimization procedures" under 50 U.S.C. § 1801(h) to be designed to protect, as far as reasonable, against the acquisition, retention, and dissemination of nonpublic information which is not foreign intelligence information. In light of the Court of Review's interpretation of "minimization procedures" under 50 U.S.C. § 1801(h), the court found no basis for the FISC's reliance upon that section "to limit criminal prosecutors' ability to advise FBI intelligence officials on the initiation, operation, continuation, or expansion of FISA surveillances to obtain foreign intelligence information, even if such information includes evidence of a foreign intelligence crime."

In addition, the Court of Review found that the FISC had misconstrued its authority under 50 U.S.C. § 1805 and misinterpreted the definition of minimization procedures under 50 U.S.C. § 1801(h). The Court of Review expressed approbation for the Government's argument that the FISC, in imposing the modified 1995 procedures upon the Department of Justice as minimization procedures, "may well have exceeded the constitutional bounds that restrict an Article III court. The FISA court asserted authority to govern the internal organization and investigative procedures of the Department of Justice which are the province of the Executive Branch (Article II) and the Congress (Article I)."

The Court of Review deemed the FISC's "refusal ... to consider the legal significance of the Patriot Act's crucial amendments [to be] error." The appellate court noted that, as amended by the USA PATRIOT Act, the requirement in 50 U.S.C. § 1804(a)(7)(B) that the Executive Branch officer certify that "the purpose" of the FISA surveillance or physical search was to gather foreign intelligence information had been changed to "a significant purpose." The court noted that floor statements indicated that this would break down traditional barriers between law enforcement and foreign intelligence gathering, making it easier for law enforcement to obtain FISA court orders for surveillance or physical searches where the subject of the surveillance "is both a potential source of valuable intelligence and the potential target of a criminal prosecution." The court noted that some Members raised concerns about the Fourth Amendment implications of this language change which permitted the Government to obtain a court order under FISA "even if the primary purpose is a criminal investigation." Interestingly, although the Court of Review did not regard a dichotomy between foreign intelligence gathering and law enforcement purposes as necessarily implied by the 1978 version of 50 U.S.C. § 1804(a)(7)(B), the court viewed the statutory change from "the purpose" to "a significant purpose" in the USA PATRIOT Act as recognizing such a dichotomy.

The Court of Review disagreed with the FISC interpretation of the consultation authority under 50 U.S.C. § 1806(k). The Court of Review saw this provision as one which reflected the elimination of barriers between law enforcement and intelligence or counterintelligence gathering, without a limitation on law enforcement officers directing or controlling FISA surveillances. "[W]hen Congress explicitly authorizes consultation and coordination between different offices in the government, without even suggesting a limitation on who is to direct and control, it necessarily implies that either could take the lead."

In analyzing the "significant purpose" amendment to 50 U.S.C. § 1804(a)(7)(B), the Court of Review deemed this a clear rejection of the primary purpose test. If gathering foreign intelligence information is a significant purpose, another purpose such as criminal prosecution could be primary. Further, the court found that the term "significant" "imposed a requirement that the government have a measurable foreign intelligence purpose, other than just criminal prosecution of even foreign intelligence crimes.... Although section 1805(a)(5) ... may well have been intended to authorize the FISA court to review only the question whether the information sought was a type of foreign intelligence information, in light of the significant purpose amendment of section 1804, it seems section 1805 must be interpreted as giving the FISA court the authority to review the government's purpose in seeking the information." The Court of Review saw the "significant purpose" language as "excluding from the purpose of gaining foreign intelligence information a sole objective of criminal prosecution." If the government, at the commencement of a FISA surveillance has not yet determined whether to prosecute the target, "[s]o long as the government entertains a realistic option of dealing with the agent other than through criminal prosecution, it satisfies the significant purpose test." Under the Court of Review's analysis:

If the certification of the application's purpose articulates a broader objective than criminal prosecution—such as stopping an ongoing conspiracy—and includes other potential non-prosecutorial responses, the government meets the statutory test. Of course, if the court concluded that the government's sole objective was merely to gain evidence of past criminal conduct—even foreign intelligence crimes—to punish the agent rather than halt ongoing espionage or terrorist activity, the application should be denied.

The court stated further that, while ordinary crimes may be intertwined with foreign intelligence crimes, the FISA process may not be utilized to investigate wholly unrelated ordinary crimes. The Court of Review emphasized that the government's purpose as reflected in the Section 1804(a)(7)(B) certification is to be judged by the FISC on the basis of

...the national security officer's articulation and not by a FISA court inquiry into the origins of an investigation nor an examination of the personnel involved. It is up to the Director of the FBI, who typically certifies, to determine the government's national security purpose, as approved by the Attorney General or Deputy Attorney General.... That means, perforce, if the FISA court has reason to doubt that the government has any real non-prosecutorial purpose in seeking foreign intelligence information it can demand further inquiry into the certifying officer's purpose—or perhaps even the Attorney General's or Deputy Attorney General's reasons for approval. The important point is that the relevant purpose is that of those senior officials in the Executive Branch who have the responsibility of appraising the government's national security needs."

Turning from its statutory analysis to its examination of whether the statute, as amended, satisfied Fourth Amendment parameters, the Court of Review compared the FISA procedures with those applicable to criminal investigations of "ordinary crimes" under Supreme Court jurisprudence and under the wiretap provisions of Title III of the Omnibus Crime Control and Safe Streets Act. Relying upon Dalia v. United States , 441 U.S. 238, 255 (1979), the court indicated that in criminal investigations, beyond requiring that searches and seizures be reasonable, the Supreme Court has interpreted the Fourth Amendment's warrant requirement to demand satisfaction of three criteria: a warrant must be issued by a neutral, detached magistrate; those seeking the warrant must demonstrate to the magistrate that there is probable cause to believe that the evidence sought will assist in a particular apprehension or conviction for a particular offense; and the warrant must describe with particularity the things to be seized and the place to be searched.

The Court of Review compared the procedures in Title III with those in FISA, finding in some respects that Title III had higher standards, while in others FISA included additional safeguards. In both, there was provision for a detached, neutral magistrate. The probable cause standard in Title III for criminal investigations was deemed more demanding than that in FISA. Title III requires a showing of probable cause that a specific individual has committed, is committing, or is about to commit a particular criminal offense. FISA requires a showing of probable cause that the target of the FISA investigative technique is a foreign power or an agent of a foreign power. A foreign power is not defined solely in terms of criminal activity. In the case of a target who is a U.S. person, the definition of "agent of a foreign power" contemplates, in part, the involvement of or, in the case of clandestine intelligence activities for a foreign power, the possibility of criminal conduct. The court regarded the lesser requirement with respect to criminal activity in the context of clandestine intelligence activities as to some extent balanced by the safeguard provided by FISA's requirement that there be probable cause to believe that the target is acting "for or on behalf of a foreign power."

With regard to the particularity requirement, as to the first element, Title III requires a finding of probable cause to believe that the interception will obtain particular communications regarding a specified crime. In contrast, FISA requires an official to designate the type of foreign intelligence information being sought and to certify that the information being sought is foreign intelligence information. When the target of the FISA investigation is a U.S. person, the standard of review applied by the FISC is whether there is clear error in the certification, a lower standard that a judicial finding of probable cause. While the FISC can demand that the government provide further information needed for the court to make its determination as to whether the certification is clearly erroneous, the statute relies also upon internal checks on Executive Branch decisions through the requirement that the certification must be made by a national security officer and approved by the Attorney General or Deputy Attorney General.

In connection with the second particularity element, Title III

... requires probable cause to believe that the facilities subject to surveillance are being used or are about to be used in connection with commission of a crime or are leased to, listed in the name of, or used by the individual committing the crime, 18 U.S.C. § 2518(3)(d), [while] FISA requires probable cause to believe that each of the facilities or places at which the surveillance is directed is being used, or is about to be used by a foreign power or agent [of a foreign power]. 50 U.S.C. § 1805(a)(3)(B). ... Simply put, FISA requires less of a nexus between the facility and the pertinent communications that Title III, but more of a nexus between the target and the pertinent communications."

The Court of Review also compared Title III to FISA with respect to necessity (both statutes require that the information sought is not available through normal investigative procedures, although the standards differ somewhat), duration of surveillance (30 days under Title III, 18 U.S.C. § 2518(3)(c), as opposed to 90 days under FISA for U.S. persons, 50 U.S.C. § 1805(e)(1)), minimization and notice.

With respect to minimization, the Court of Review noted that Title III, under 18 U.S.C. § 2518(5), required minimization of what was acquired, directing that surveillance be carried out "in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter." FISA, on the other hand, "requires minimization of what is acquired, retained, and disseminated." Observing that the FISC had found "in practice FISA surveillance devices are normally left on continuously, and the minimization occurs in the process of indexing and logging the pertinent communications," the Court of Review deemed the reasonableness of such an approach to be dependent upon the facts and circumstances of each case:

Less minimization in the acquisition stage may well be justified to the extent the intercepted communications are "ambiguous in nature or apparently involve[] guarded or coded language," or "the investigation is focusing on what is thought to be a widespread conspiracy [where] more extensive surveillance may be justified in an attempt to determine the precise scope of the enterprise." ... Given the targets of FISA surveillance, it will often be the case that intercepted communications will be in code or a foreign language for which there is no contemporaneously available translator, and the activities of foreign agents will involve multiple actors and complex plots....

With respect to notice, the Court of Review observed that under 18 U.S.C. § 2518(8)(d), Title III mandated notice to the target of the surveillance and, in the judge's discretion, to other persons whose communications were intercepted, after the surveillance has expired. In contrast, under 50 U.S.C. § 1806(c) and (d), FISA does not require notice to a person whose communications were intercepted unless the government intends to use, disclose, or enter into evidence those communications or derivative information in a trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other federal, state or local authority against that person. The Court of Review noted that where such information was to be used against a criminal defendant, he or she would be given notice, and stated that "where such evidence is not ultimately going to be used for law enforcement," Congress had observed that "[t]he need to preserve secrecy for sensitive counterintelligence sources and methods justifies elimination of the notice requirement." In a footnote, the court noted that the Amici had drawn attention to the difference in the nature of the notice given the defendant or aggrieved person under Title III as opposed to FISA. Under Title III, a defendant is generally entitled under 18 U.S.C. § 2518(9) to obtain the application and order to challenge the legality of the surveillance. However, under FISA, the government must give the aggrieved person and the court or other authority (or in the case of a state or local use, the state or political subdivision must give notice to the aggrieved person, the court or other authority, and the Attorney General) of their intent to so disclose or use communications obtained from the surveillance or derivative information. In addition, under 50 U.S.C. §§ 1806(f) and (g), if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm national security, the U.S. district court may review in camera and ex parte the application, order, and other materials related to the surveillance, to determine whether the surveillance was lawfully authorized and conducted, whether disclosure or discovery is necessary, and whether to grant a motion to suppress. The Court of Review noted that these determinations are to be made by the U.S. district judge on a case by case basis, and stated that "whether such a decision protects a defendant's constitutional rights in a given case is not before us."

Based on this comparison of Title III and FISA, the Court of Review found that "to the extent that the two statutes diverge in constitutionally relevant areas—in particular, in their probable cause and particularity showings—a FISA order may not be a 'warrant' contemplated by the Fourth Amendment.... Ultimately, the question becomes whether FISA, as amended by the Patriot Act, is a reasonable response based on a balance of the legitimate need of the government for foreign intelligence information to protect against national security threats with the protected rights of citizens."

The court framed the question as follows: "does FISA amplify the President's power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government's contention that FISA searches are constitutionally reasonable." In its analysis, the court first considered whether the Truong case articulated the correct standard. Truong held that the President had inherent authority to conduct warrantless searches to obtain foreign intelligence information, but did not squarely address FISA. Starting from the perspective that Truong deemed the primary purpose test to be constitutionally compelled as an application of the Keith case balancing standard, the Court of Review found that the Truong determination that "once surveillance becomes primarily a criminal investigation, the courts are entirely competent to make the usual probable cause determination, and ... individual privacy interests come to the fore and government foreign policy concerns recede when the government is primarily attempting to form the basis of a criminal investigation." The Court of Review found that this analysis was based upon a faulty premise that in the context of criminal prosecution "foreign policy concerns recede," and found further that the line the Truong court "sought to draw was inherently unstable, unrealistic, and confusing." The Court of Review opined that in the context of counterintelligence, foreign policy concerns did not recede when the government moved to prosecute. Rather "the government's primary purpose is to halt the espionage or terrorism efforts, and criminal prosecutions can be, and usually are, interrelated with other techniques used to frustrate a foreign power's efforts."

In addition, the court found that the method of determining when an investigation became primarily criminal by looking to when the Criminal Division of the Department of Justice assumed the lead role, had led over time to the "quite intrusive organizational and personnel tasking the FISA court [had] adopted." The court found the "wall" procedure to generate dangerous confusion and create perverse organizational incentives that discouraged wholehearted cooperation of "all the government's personnel who can be brought to the task." This the court suggested could be thought to be dangerous to national security and could be thought to discourage desirable initiatives.

In addition, the court saw the primary purpose test as administered by the FISC, "by focusing on the subjective motivation of those who initiate investigations ... was at odds with the Supreme Court's Fourth Amendment cases which regard subjective motivation of an officer conducting a search or seizure as irrelevant."

Assuming arguendo that FISA orders were not warrants within the scope of the Fourth Amendment, the Court of Review returned to the question of whether searches under FISA are constitutionally reasonable. While the Supreme Court has not considered directly the constitutionality of warrantless government searches for foreign intelligence purposes, the balance between the government's interest and personal privacy interests is key to an examination of this question. The Court of Review viewed Keith as suggesting that a somewhat relaxed standard might be appropriate in foreign intelligence crimes as opposed to ordinary crimes.

The Court of Review then briefly touched upon the Supreme Court's "special needs" cases, where the Court upheld searches not based on a warrant or individualized suspicion in extraordinary circumstances involving "special needs, beyond the normal need for law enforcement." In City of Indianapolis v. Edmond , 531 U.S. 32, 42 (2000), the U.S. Supreme Court held that a highway check point program designed to catch drug dealers was not within the "special needs" exception to the requirement that a search be based upon individualized suspicion, because "the government's 'primary purpose' was merely 'to uncover evidence of ordinary criminal wrongdoing.'" The Court stated that "the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose." The Court relied upon an examination of the primary purpose of the program, but not the motivations of individual officers, to determine whether the "special needs" standard had been met. The Supreme Court noted that an appropriately tailored road block could be used "to thwart an imminent terrorist attack."

After summarizing Edmond , the Court of Review emphasized that it is the nature of the threat or emergency that took the matter beyond the realm of ordinary crime control. It concluded that, while the gravity of the threat alone cannot be dispositive of the reasonableness of a search under the Fourth Amendment standard, it is a critical factor in the analysis. In its view, the "programmatic purpose" of FISA, "to protect the nation against terrorists and espionage threats directed by foreign powers," was one which, from FISA's inception, was distinguishable from "ordinary crime control." The Court of Review also concluded that, "[e]ven without taking into account the President's inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close." Applying the balancing test that it had drawn from Keith between foreign intelligence crimes and ordinary crimes, the Court of Review held surveillances under FISA, as amended by the USA PATRIOT Act, were reasonable and therefore constitutional. In so doing, however, the Court of Review

acknowledged] ... that the constitutional question presented by this case—whether Congress' disapproval of the primary purpose test is consistent with the Fourth Amendment—has no definitive jurisprudential answer. The Supreme Court's special needs cases involve random stops (seizures) not electronic searches. In one sense, they can be thought of as a greater encroachment into personal privacy because they are not based on any particular suspicion. On the other hand, wiretapping is a good deal more intrusive than an automobile stop accompanied by questioning.

The Court of Review reversed the FISC's orders before it for electronic surveillance "to the extent they imposed conditions on the grant of the government's applications, vacate[d] the FISA court's Rule 11, and remand[ed] with instructions to grant the applications as submitted and proceed henceforth in accordance with this opinion."

50 U.S.C. § 1803(b) provides that, where the Court of Review upholds a denial by the FISC of a FISA application, the United States may file a petition for certiorari to the United States Supreme Court. Since consideration of applications for FISA orders is ex parte, there is no provision in FISA for an appeal to the United States Supreme Court from a decision of the Court of Review by anyone other than the United States. Nevertheless, on February 18, 2003, a petition for leave to intervene and a petition for writ of certiorari to the U.S. Foreign Intelligence Surveillance Court of Review was filed in this case in the U.S. Supreme Court by the American Civil Liberties Union, National Association of Criminal Defense Lawyers, American-Arab Anti-Discrimination Committee, and the Arab Community Center for Economic and Social Services. On March 14, 2003, the Bar Association of San Francisco filed a motion to file an amicus curiae brief in support of the motion to intervene and petition for certiorari. On March 24, 2003, the Supreme Court denied the motion for leave to intervene in order to file a petition for a writ of certiorari and denied the motion for leave to file an amicus curiae brief.

Conclusion

The Foreign Intelligence Surveillance Act, as amended, provides a statutory structure to be followed where electronic surveillance, 50 U.S.C. § 1801 et seq. , physical searches, 50 U.S.C. § 1821 et seq. , or pen registers or trap and trace devices, 50 U.S.C. § 1841 et seq. , for foreign intelligence gathering purposes are contemplated. In addition, it provides a statutory mechanism for the FBI to seek production of "any tangible things" for an investigation seeking foreign intelligence information not involving a U.S. person or to protect against international terrorism or clandestine intelligence with respect to any person under 50 U.S.C. § 1861. FISA creates enhanced procedural protections where a United States person is involved, while setting somewhat less stringent standards where the surveillance involves foreign powers or agents of foreign powers. With its detailed statutory structure, it appears intended to protect personal liberties safeguarded by the First and Fourth Amendments while providing a means to ensure national security interests.

The USA PATRIOT Act, P.L. 107-56 , increased the number of FISC judges from 7 to 11, while expanding the availability of FISA electronic surveillance, physical searches and pen registers and trap and trace devices. For example, under P.L. 107-56 , an application for a court order permitting electronic surveillance or a physical search under FISA is now permissible where "a significant purpose" of the surveillance or physical search, rather than "the purpose" or, as interpreted by some courts, "the primary purpose" of the surveillance or physical search, is to gather foreign intelligence information. While the previous language withstood constitutional challenge, the Supreme Court has not yet determined the constitutional sufficiency of the change in the FISA procedures under the Fourth Amendment. On the other hand, the U.S. Foreign Intelligence Court of Review has examined a number of constitutional issues in In re Sealed Case , finding that FISA orders, if not satisfying the constitutional warrant requirement, are close to doing so; and finding that, even if a FISA order does not qualify as a warrant for Fourth Amendment purposes, electronic surveillance under FISA as amended by the USA PATRIOT Act is reasonable and therefore constitutional. At the same time, however, the Court of Review acknowledged that the constitutional question of whether Congress' disapproval of the primary purpose test is consistent with the Fourth Amendment "has no definitive jurisprudential answer."

The USA PATRIOT Act also amended FISA to allow court orders permitting so-called multipoint or "roving" electronic surveillance, where the orders do not require particularity with respect to the identification of the instrument, place, or facility to be intercepted, upon a finding by the court that the actions of the target of the surveillance are likely to thwart such identification. P.L. 107-108 further clarified this authority.

Under P.L. 107-56 , pen registers and trap and trace devices may now be authorized for e-mails as well as telephone conversations. In addition, the act expanded the previous FBI access to business records, permitting court ordered access in connection with a foreign intelligence or international terrorism investigation not just to business records held by common carriers, public accommodation facilities, physical storage facilities, and vehicle rental facilities, but to any tangible things.

While expanding the authorities available for foreign intelligence investigations, FISA, as amended by the USA PATRIOT Act and the Intelligence Authorization Act for FY2002, also contains broader protections for those who may be the target of the various investigative techniques involved. For example, whether the circumstances involve electronic surveillance, physical searches, pen registers or trap and trace devices or access to business records and other tangible items, FISA, as amended by the USA PATRIOT Act, does not permit the court to grant orders based solely upon a United States person's exercise of First Amendment rights.

In addition, P.L. 107-56 created a new private right of action for persons aggrieved by inappropriate disclosure or use of information gleaned or derived from electronic surveillance, physical searches or the use of pen registers or trap and trace devices. These claims can be brought against the United States for certain willful violations by government personnel.

Finally, the inclusion of a sunset provision for the FISA changes made in the USA PATRIOT Act, with the exception of the increase in the number of FISC judges, provides an opportunity for the new authorities to be utilized and considered, and an opportunity for the Congress to revisit them in light of that experience.

Sections 898 and 899 of the Homeland Security Act of 2002, P.L. 107-296 , amended FISA, 50 U.S.C. §§1806(k)(1) and 1825(k)(1) respectively, to permit federal officers conducting electronic surveillance or physical searches to acquire foreign intelligence information under FISA to consult with federal law enforcement officers "or law enforcement personnel of a state or political subdivision of a State (including the chief executive officer of that State or political subdivision who has the authority to appoint or direct the chief law enforcement officer of that State or political subdivision)." Such consultations are to coordinate efforts to investigate or protect against actual or potential attacks or other grave hostile acts of a foreign power or an agent of a foreign power; sabotage or international terrorism by a foreign power or an agent of a foreign power; or clandestine intelligence activities by an intelligence service or network of a foreign power or an agent of a foreign power. These sections also state that such consultations do not preclude the Assistant to the President for National Security Affairs or other designated Executive Branch officials from making the necessary certifications as part of the application process for a FISA court order under 50 U.S.C. §§ 1804(a)(7) or 1823(a)(7), nor are these consultations to preclude entry of an order under 50 U.S.C. §§ 1805 or 1824.

Section 6001 of Title VI of FISA, as added by the Intelligence Reform and Terrorism Prevention Act of 2004, P.L. 108-458 , expanded the definition of "agent of a foreign power" in the context of non-U.S. persons to encompass those who engage in international terrorism or in activities in preparation for international terrorism, regardless of whether they have any connection or affiliation with a foreign government or other foreign organization or entity. This new definition is included among those FISA provisions subject to the sunset provisions in Section 224 of the USA PATRIOT Act, as amended. Section of the new Title VI of FISA also imposed new, detailed semiannual reporting requirements to facilitate congressional oversight of the implementation of the Act, which are codified at 50 U.S.C. § 1871.

The USA PATRIOT Improvement and Reauthorization Act of 2005, P.L. 109-177 (Reauthorization Act), Section 102, adopted a sunset of December 31, 2009, for FISC orders for multipoint or "roving" wiretaps under Section 105(a) of FISA, 50 U.S.C. § 1805(a), for FISC orders for production of tangible things under Section 501 of FISA, 50 U.S.C. § 1861, and congressional oversight requirements in Section 502 of FISA, 50 U.S.C. § 1862. Section 103 of P.L. 109-177 extended the sunset relating to "lone wolf" agents of foreign powers to December 31, 2009.

Section 105 of P.L. 109-177 extended the maximum duration initial orders authorizing of electronic surveillances and physical searches under Sections 105(e) and 304 of FISA to 120 days, while extensions of such electronic surveillances and physical searches could be for up to one year. The duration of both initial orders and extensions to orders authorizing installation and use of FISa pen registers or trap and trace devices is extended from 90 days to one year in cases where the Government has certified that the information likely to be obtained is foreign intelligence information not concerning a U.S. person.

Section 106(a) of P.L. 109-177 permits the FBI Director to delegate his authority to make an application for a production order regarding 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, to either the Deputy Director of the Federal Bureau of Investigation or the Executive Assistant Director for National Security (or any successor position). Neither the Deputy Director nor the Executive Assistant Director may not further delegate such authority.

Section 106(b) of P.L. 109-177 requires an application for a FISA production order to include statement of the facts supporting a reasonable belief that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities. It provides that certain tangible things are "presumptively relevant" to such an investigation if the statement of facts shows that they pertain to a foreign power or agent of a foreign power, the activities of a suspected agent of a foreign power who is the subject of the authorized investigation, or an individual in contact with or known to a suspected agent of a foreign power who is the subject of the investigation.

Section 106(c) of P.L. 109-177 provides that an FISC judge must approve a FISA production order if he or she finds that the application meets the statutory requirements. Under Section 106(d) of P.L. 109-177 , such an ex parte order must include a particularized description of the tangible things sought, must allow a reasonable time for such things to be assembled, must notify the recipients of the production order of applicable nondisclosure requirements, and must be limited to things which may be subject to a grand jury subpoena or any other federal court order directing production of records or tangible things. The order must not disclose that such order is issued for purposes of such an authorized investigation.

Section 106(d) of the Reauthorization Act prohibits the recipient of a production order from disclosing to anyone except those persons to whom disclosure is necessary to comply with such order; an attorney to obtain legal advice or assistance with respect to the production of things in response to the order; or other persons as permitted by the FBI Director or his designee. Subsection 106(e) of the measure requires the production order recipient, upon the request of the FBI Director or his designee, to identify to the FBI those to whom such disclosure has been or will be made, unless the disclosure has been or is to be made to an attorney from whom legal advice or assistance is sought.

Section 106(f) of P.L. 109-177 amends 50 U.S.C. § 1803 to establish a petition review pool of FISC judges to hear challenges to FISA production or related nondisclosure orders, and sets forth a detailed judicial review process for consideration of such petitions.

Section 106A of the Reauthorization Act directs the Inspector General of the U.S. Department of Justice to conduct a comprehensive audit of the effectiveness and use, including any improper or illegal use, of the investigative authority provided to the FBI under 50 U.S.C. 1861 for calendar years 2002-2006, and requires the results to be filed in two unclassified reports to the House and Senate Intelligence and Judiciary Committees.

Section 108(a) and (b) amend the requirements for an application and for an FISC order authorizing multipoint electronic surveillance under FISA. Subsection 108(c) expands the list of committees to whom the Attorney General's semiannual reports on FISA electronic surveillance to include not only the Intelligence Committees but also the Senate Judiciary Committee; and requires the report to include an additional category of information, that is, a description of the total number of applications made for orders approving such multipoint electronic surveillance.

Section 109(a) of P.L. 109-177 modifies the list of congressional committees receiving two semiannual reports from the Attorney General on physical searches under FISA pursuant to 50 U.S.C. § 1826, and requires the second of these reports to include, among other things, the total number of emergency physical searches authorized by the Attorney General under 50 U.S.C. § 1824(e) and the total number of subsequent orders approving or denying such physical searches.

Section 109(b) of P.L. 109-177 requires the Attorney General, in his semiannual statistical report submitted to the House and Senate Judiciary Committees on FISA pen registers and trap and trace devices, to include, among other things, the total number of pen registers and trap and trace devices whose installation and use was authorized by the Attorney General on an emergency basis under 50 U.S.C. §1843, and the total number of subsequent orders approving or denying the installation and use of such pen registers and trap and trace devices.

Section 109(d) of P.L. 109-177 amends 50 U.S.C. § 1803 to permit the FISC and Court of Review to establish such rules and procedures, and take such actions, as are reasonably necessary to administer their responsibilities under this chapter. Any such rules and procedures are to be recorded and transmitted to all of the judges on the FISC and on the Court of Review, the Chief Justice of the United States, the House and Senate Judiciary Committees, the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence.

Section 128(a)(3) of P.L. 109-177 added 50 U.S.C. § 1842(d)(2)(C), which permits the FISC, in an order authorizing use of a pen register or trap and trace device, to direct a wire or communication service provider to provide the federal officer using the device specific subscriber or customer information upon request. That information may include, with respect to a customer or subscriber using the service during the period of the order, the name of the customer or subscriber; the address of the customer or subscriber; the telephone or instrument number, or other subscriber number or identifier, of the customer or subscriber, including any temporarily assigned network address or associated routing or transmission information; the length of the provision of service by such provider to the customer or subscriber and the types of services utilized by the customer or subscriber. In the case of a provider of local or long distance telephone service, the information provided may include any local or long distance telephone records of the customer or subscriber; if applicable, any records reflecting period of usage (or sessions) by the customer or subscriber; any mechanisms and sources of payment for such service, including the number of any credit card or bank account utilized for payment for such service; and, if available, with respect to any customer or subscriber of incoming or outgoing communications to or from the service covered by the order, the name of such customer or subscriber; the address of such customer or subscriber; the telephone or instrument number, or other subscriber number or identifier, of such customer or subscriber, including any temporarily assigned network address or associated routing or transmission information; and the length of the provision of service by such provider to such customer or subscriber and the types of services utilized by such customer or subscriber.

Section 128(b) of P.L. 109-177 added the House and Senate Judiciary Committees to the list of committees to be kept fully informed by the Attorney General regarding all use of FISA pen registers and trap and trace devices.

Section 506 of P.L. 109-177 amends the definition of "Attorney General" under 50 U.S.C. § 1801(g) to include the Assistant Attorney General for National Security, so that the term includes "the Attorney General of the United States (or Acting Attorney General), the Deputy Attorney General, or, upon the designation of the Attorney General, the Assistant Attorney General designated as the Assistant Attorney General for National Security under section 507A of title 28, United States Code."

Section 3 of P.L. 109-178 amends the provisions in 50 U.S.C. § 1861(f) regarding judicial review of production orders and related nondisclosure orders. In addition, Section 4 of the measure amends 50 U.S.C. § 1861(d)(2) to provide that, at the request of the FBI Director or his designee, any person disclosing or intending to disclose that the FBI has sought or obtained tangible things under a FISA production order to someone in one of the three categories of individuals to whom such disclosure is permitted, shall identify to the Director or his designee the person to whom the disclosure will be or has been made. In so doing, the measure in effect deletes an exception to this identification requirement where the person to whom the disclosure is made is an attorney from whom the person making the disclosure is seeking legal advice or assistance.

In addition to examining the statutory structure in FISA, as amended, this report has explored two published decisions, one from the FISC in In re All Matters Submitted to the Foreign Intelligence Surveillance Court and one from the U.S. Foreign Intelligence Court of Review in In re Sealed Case . Because historically the decisions of the FISC have not been made public, and because the opinion of the U.S. Foreign Intelligence Surveillance Court of Review discussed in this report was the first decision ever made by that court, the recent decisions of the FISC and the Court of Review provided a unique opportunity to observe the decision-making processes and differing perspectives of the two courts created by FISA.

The FISC's decision was set against a backdrop of a significant number of instances in which the Department of Justice had failed to maintain a "wall" between foreign intelligence gathering and criminal investigations. All seven of the then sitting members of the FISC concurred in the May 17, 2002, order of the court, written by the then presiding judge of the court. The FISC, in its May 17 th opinion and order, treated the Attorney General's proposed 2002 "Intelligence Sharing Procedures for Foreign Intelligence and Foreign Counterintelligence Investigations Conducted by the FBI" as minimization procedures, and approved them as modified. The modifications made by the Court permitted the FBI, the Criminal Division, and OIPR to consult with one another "to coordinate their efforts to investigate or protect against foreign attack or other grave hostile acts, sabotage, international terrorism, or clandestine intelligence activities by foreign powers or their agents." In so doing, the FISC permitted such cooperation and coordination to address, among other things, the exchange of information already acquired, identification of categories of information needed and being sought, prevention of either foreign intelligence gathering or criminal law enforcement investigation or interest from obstructing or hindering the other; compromise of either investigation, and long term objectives and overall strategy of both investigations to insure that overlapping intelligence and criminal interests of the United States are both achieved. While permitting direct consultation and coordination between components, the FISC required that OIPR be invited to all consultations and, if OIPR was unable to attend, the modified procedures required that OIPR be "forthwith" informed in writing of the substance of the meeting so that the FISC could be notified promptly. In addition, under the procedures as modified by the FISC, law enforcement officials were prohibited from making recommendations to intelligence officials regarding the initiation, operation, continuation or expansion of FISA searches or surveillances. Nor could law enforcement officials direct or control the use of FISA procedures to enhance criminal prosecution. The FBI and the Criminal Division were given the responsibility to ensure that this did not occur, and were also required to make certain that advice intended to preserve the criminal prosecution option did not inadvertently result in the Criminal Division directing or controlling the investigation using FISA tools to further law enforcement objectives. In addition, the FISC adopted a new Rule 11, dealing with criminal investigations in FISA cases, to facilitate monitoring of compliance with its May 17, 2002 order. This rule required all FISA applications to include informative descriptions of ongoing criminal investigations of FISA targets, as well as the substance of consultations between the FBI and criminal prosecutors at the Department of Justice or a U.S. Attorney's office.

In its November 18, 2002 opinion, the Court of Review took a starkly different view of the Attorney General's proposed procedures and firmly rejected the FISC analysis and conclusions. The issue came before the Court of Review as an appeal of two FISC orders, one granting an application to authorize electronic surveillance of an agent of a foreign power subject to restrictions stemming from the FISC May 17 th opinion and order and the other renewing the authorization for electronic surveillance subject to the same conditions.

The Court of Review held that the FISC's interpretation of the augmented 1995 procedures and the proposed 2002 procedures as minimization procedures under 50 U.S.C. § 1801(h) was in error. The Court of Review found that the FISC had misconstrued 50 U.S.C. §§ 1801(h) and 1805 and may have overstepped its constitutional authority by asserting authority to govern the internal organization and investigative procedures of the Justice Department.

It found that FISA, as originally enacted, did not create a dichotomy between foreign intelligence information gathering and law enforcement investigations, nor did it require maintenance of a "wall" between such investigations. While FISA as enacted in 1978 required that a national security official certify that "the purpose" of the investigation was to gather foreign intelligence information, the court regarded the definition of "foreign intelligence information" as including evidence of criminal wrongdoing where a U.S. person is the target of the FISA investigation. In light of the fact that the definition of "agent of a foreign power" applicable to U.S. persons involved criminal conduct, or, in the context of clandestine intelligence operations, the possibility of criminal conduct, the court distinguished "foreign intelligence crimes" from "ordinary crimes." In foreign intelligence crimes, intelligence gathering and criminal investigations may become intertwined.

The Court of Review reviewed past court decisions requiring that, in seeking a FISA order authorizing electronic surveillance, the government must demonstrate that the "primary purpose" of the surveillance was to gather foreign intelligence information and not to further law enforcement purposes. Rejecting the "primary purpose test" as applied by the FISC and the courts of appeals of several circuits, the Court of Review did not find it to be compelled by the statutory language of FISA as originally enacted or by the Fourth Amendment.

The Court of Review also held the FISC to have been in error in its refusal "to consider the legal significance of the Patriot Act's crucial amendments...." In particular, the court focused upon the change of the required certification by the national security official from a certification that "the purpose" of the surveillance was to obtain foreign intelligence information to a certification that "a significant purpose" of the surveillance was to obtain foreign intelligence information in 50 U.S.C. § 1804(a)(7)(B); and the enactment of 50 U.S.C. § 1806(k), authorizing consultation and coordination by federal officers engaged in electronic surveillance to acquire foreign intelligence information with federal law enforcement officers.

Finding that the "significant purpose" amendment recognized the existence of a dichotomy between intelligence gathering and law enforcement purposes, the Court of Review concluded that this test was satisfied if the government had "a measurable foreign intelligence purpose, other than just criminal prosecution of even foreign intelligence crimes." While the gathering of foreign intelligence information for the sole objective of criminal prosecution would be precluded by the "significant purpose" language, if "the government entertains a realistic option of dealing with the agent [of a foreign power] other than through criminal prosecution," the court found the "significant purpose" test satisfied. Although the court was of the view that, prior to passage of the USA PATRIOT Act, the FISC may well not have had authority under 50 U.S.C. § 1805(a)(5) to inquire into anything other than the issue of "whether the information sought was a type of foreign intelligence information, in light of the significant purpose amendment of section 1804" the Court of Review concluded that "it seems section 1805 must be interpreted as giving the FISA court the authority to review the government's purpose in seeking the information." The court held that the government's purpose under 50 U.S.C. § 1804(a)(7)(B) was "to be judged by the national security official's articulation and not by a FISA court inquiry into the origins of an investigation nor an examination of the personnel involved.... [I]f the FISA court has reason to doubt that the government has any real non-prosecutorial purpose in seeking foreign intelligence information it can demand further inquiry into the certifying officer's purpose—or perhaps even the Attorney General's or Deputy Attorney General's reasons for approval."

The Court of Review also considered whether FISA, as amended, passed constitutional muster under the Fourth Amendment. It deemed the procedures and government showings required under FISA to come close to the minimum requirements for a warrant under the Fourth Amendment, if not meeting such requirements. Assuming arguendo that a FISA order was not a warrant for Fourth Amendment purposes, the Court of Review found FISA constitutional because the surveillances authorized thereunder were reasonable.