#25 Class More FISA 1. When, precisely, must the government seek a FISA order before conducting electronic surveillance? 2. The "wall" where did it come from, why did it go away, and will it come back? 3. Pen Registers/Trap & Trace (criminal and FISA)
Fourth Amendment Considerations
Criminal Investigation: traditional warrant required
Fourth Amendment Considerations
Criminal Investigation: traditional warrant required
Domestic Intelligence: special warrant required by Keith (1972)
Fourth Amendment Considerations
Criminal Investigation: traditional warrant required
Domestic Intelligence: special warrant required by Keith (1972) Foreign Intelligence: no warrant required by Truong (1980)
Fourth Amendment Considerations
Domestic Intelligence: special warrant required by Keith (1972)
Criminal Investigation: traditional warrant required
BUT NO SUCH REGIME EVER CREATED BY CONGRESS
Foreign Intelligence: no warrant required by Truong (1980)
Fourth Amendment Considerations
Domestic Intelligence: special warrant required by Keith (1972)
Criminal Investigation: traditional warrant required
BUT NO SUCH REGIME EVER CREATED BY CONGRESS
Foreign Intelligence: no warrant required by Truong (1980)
CONGRESS IMPOSED A WARRANT REGIME IN FISA IN 1978
Fourth Amendment Considerations
Domestic Intelligence: special warrant required by Keith (1972)
Criminal Investigation: traditional warrant required
BUT NO SUCH REGIME EVER CREATED BY CONGRESS
Foreign Intelligence: no warrant required by Truong (1980)
CONGRESS IMPOSED A SPECIAL WARRANT REGIME (FISA) IN 1978
Issue: Which rule applies when the government wishes both to gather foreign intelligence and,potentially, to prosecute?
The Foreign Intelligence Surveillance Act of 1978
50 USC 1804 Applying for a FISA Order (here) 50 USC 1801 Definitions (here) 50 USC 1805 Issuing a Surveillance Order (here) 50 USC 1806 Use of FISA Information (here) 50 USC 1807-1810 Protecting Against Abuse Through Oversight and Liability (here) 50 USC 1802 Emergency Procedures (here) 50 USC 1811 Wartime Exemption (here)
The Foreign Intelligence Surveillance Act of 1978
What test does the FISA judge apply? (50 USC 1805)
The Foreign Intelligence Surveillance Act of 1978
What test does the FISA judge apply? (50 USC 1805) 1.Was the application approved by the Attorney General?
The Foreign Intelligence Surveillance Act of 1978
What test does the FISA judge apply? (50 USC 1805) 1.Was the application approved by the Attorney General? 2.Is there probable cause to believe the target is a foreign power/agent of foreign power? Note that if the target is a US person, probable cause cannot be demonstrated on the basis of First Amendment activities alone.
The Foreign Intelligence Surveillance Act of 1978
What test does the FISA judge apply? (50 USC 1805) 1.Was the application approved by the Attorney General? 2.Is there probable cause to believe the target is a foreign power/agent of foreign power? Note that if the target is a US person, probable cause cannot be demonstrated on the basis of First Amendment activities alone. 3.Is there probable cause to believe the facility/location to be surveilled is being used, or is going to be used, by that target?
The Foreign Intelligence Surveillance Act of 1978
What test does the FISA judge apply? (50 USC 1805) 1.Was the application approved by the Attorney General? 2.Is there probable cause to believe the target is a foreign power/agent of foreign power? Note that if the target is a US person, probable cause cannot be demonstrated on the basis of First Amendment activities alone. 3.Is there probable cause to believe the facility/location to be surveilled is being used, or is going to be used, by that target? 4.Are the proposed minimization procedures adequate?
The Foreign Intelligence Surveillance Act of 1978
What test does the FISA judge apply? (50 USC 1805) 1.Was the application approved by the Attorney General? 2.Is there probable cause to believe the target is a foreign power/agent of foreign power? Note that if the target is a US person, probable cause cannot be demonstrated on the basis of First Amendment activities alone. 3.Is there probable cause to believe the facility/location to be surveilled is being used, or is going to be used, by that target? 4.Are the proposed minimization procedures adequate? 5.Does the application have all the required certifications? Note that if the target is not a US person, this inquiry is purely formal (i.e., have the right boxes been checked). If the target is a US person, the judge can consider whether the certifications are plausible on their face.
The Foreign Intelligence Surveillance Act of 1978
50 USC 1804 Applying for a FISA Order (here) 50 USC 1801 Definitions (here) 50 USC 1805 Issuing a Surveillance Order (here) 50 USC 1806 Use of FISA Information (here) 50 USC 1807-1810 Protecting Against Abuse Through Oversight and Liability (here) 50 USC 1802 Emergency Procedures (here) 50 USC 1811 Wartime Exemption (here)
The Foreign Intelligence Surveillance Act of 1978
When precisely does the government's use of electronic devices trigger the need to get a FISA warrant? (50 USC 1801)
The Foreign Intelligence Surveillance Act of 1978
When precisely does the government's use of electronic devices trigger the need to get a FISA warrant? (50 USC 1801)
(1) the acquisition by an electronic, mechanical, or other surveillance of device the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
The Foreign Intelligence Surveillance Act of 1978
When precisely does the government's use of electronic devices trigger the need to get a FISA warrant? (50 USC 1801)
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;
The Foreign Intelligence Surveillance Act of 1978
When precisely does the government's use of electronic devices trigger the need to get a FISA warrant? (50 USC 1801)
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
The Foreign Intelligence Surveillance Act of 1978
When precisely does the government's use of electronic devices trigger the need to get a FISA warrant? (50 USC 1801)
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
The Foreign Intelligence Surveillance Act of 1978
50 USC 1802 Emergency Procedures (here) 50 USC 1811 Wartime Exemption (here)
Fourth Amendment Considerations
Domestic Intelligence: special warrant required by Keith (1972)
Criminal Investigation: traditional warrant required
BUT NO SUCH REGIME EVER CREATED BY CONGRESS
Foreign Intelligence: no warrant required by Truong (1980)
CONGRESS IMPOSED A SPECIAL WARRANT REGIME (FISA) IN 1978
Issue: Which rule applies when the government wishes both to gather foreign intelligence and,potentially, to prosecute?
Pen Registers and TrapandTrace Devices
Pen Registers and TrapandTrace Devices 1979 The Supreme Court decides Smith v. Maryland
Pen Registers and TrapandTrace Devices 1979 The Supreme Court decides Smith v. Maryland 1986 The Pen Register Act (18 USC 3123) provides:
Pen Registers and TrapandTrace Devices 1979 The Supreme Court decides Smith v. Maryland 1986 The Pen Register Act (18 USC 3123) provides:
"...the court shall enter an ex parte order authorizing the installation and use of a pen register or trap and trace device anywhere within the United States, if the court finds that the attorney for the Government has certified to the court that the information likely...