Chapter 19 - Congressional Authority for
National Security Surveillance
Part I
Smith v. Maryland United States Supreme
Court, 442 U.S. 735 (1979)
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What is a pen-register and why did the police use them?
Are the customers of the phone company aware that this
information was being collected by the phone company?
How is a pen register different from a Katz wiretap?
Why isn't the installation of the pen-register a search?
What is the search?
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United States v. Miller, 425 U.S. 435 (1976)
Access to Bank Records
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‘‘The depositor takes the risk, in revealing his affairs to
another, that the information will be conveyed by that
person to the Government. . . . This Court has held
repeatedly that the Fourth Amendment does not prohibit
the obtaining of information revealed to a third party and
conveyed by him to Government authorities, even if the
information is revealed on the assumption that it will be
used only for a limited purpose and the confidence
placed in the third party will not be betrayed.’’
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Expectation of Privacy
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Why did the defendant not have an expectation of
privacy?
Why is the dissent concerned about basing the
4th amendment on reasonable expectations of
privacy?
Has the court adopted the dissent's view over
time?
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Subsequent Legislation
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What sort of warrant requirement did Congress
enact?
 Is this like an administrative search?
What does this standard about information
provided to third parties tell us about social
networking?
 Information other than conversations that come
from Internet and cell phone use?
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Background for FISA
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When was FISA passed?
What abuses in the Church Report drove the
passage of FISA?
How about the concentration camp list?
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United States v. Duggan, 743 F.2d 59
(1984)
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What organization were the defendants part of?
What were they objecting to?
Who does FISA apply to?
 Expanded later
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FISA Definitions
What is a United States person?
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''United States person'' to include a citizen of the
United States, an alien lawfully admitted for
permanent residence (as defined in section
1101(a)(20) of title 8), [and] an unincorporated
association a substantial number of members of
which are citizens of the United States or aliens
lawfully admitted for permanent residence.
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What is the relevant definition of foreign
intelligence?
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(1) information that relates to, and if concerning a United States
person is necessary to, the ability of the United States to protect
against- . . .
(B) sabotage or international terrorism by a foreign power or an
agent of a foreign power; or . . .
(2) information with respect to a foreign power or foreign territory
that relates to, and if concerning a United States person is
necessary to(A) the national defense or security of the United States; or
(B) the conduct of the foreign affairs of the United States. Id.
§1801(e).
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What is the definition of international
terrorism?
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1) involve violent acts or acts dangerous to human life
that . . . would be a criminal violation if committed within
the jurisdiction of the United States or any State;
(2) appear to be intended
 (A) to intimidate or coerce a civilian population;
 (B) to influence the policy of a government by
intimidation or coercion; or
 (C) to affect the conduct of a government by
assassination or kidnapping; and
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Where must it occur?
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(3) occur totally outside the United States, or
transcend national boundaries in terms of the
means by which they are accomplished, the
persons they appear intended to coerce or
intimidate, or the locale in which their
perpetrators operate or seek asylum.
How does this definition try to differentiate
ordinary crime?
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Are Defendants Agents of Ireland?
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What part of the definition of foreign power in
FISA covers defendants?
How does this expand the traditional notion of a
foreign power as a state?
How big does a group have to be to be a FISA
foreign power?
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FISA Warrants
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What must the government show to get a FISA
warrant?
What else must the government do if the target is
a United States person?
What must the judge find that there is probable
cause to support?
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What must the government do if the target
is a United States person?
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When the target is a United States person, the
government is required to minimize the
acquisition and retention of nonpublicly available
information and to prohibit its dissemination,
consistent with the need of the United States to
obtain, produce, and disseminate foreign
intelligence information, id. §1801(h); and the
application must set out what minimization
procedures are proposed, id. §1804(a)(5).
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Non-U.S. Persons
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What does this implicitly tell you about the review
standard for non-US persons?
How does this differ from the requirements for a
criminal law warrant?
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The Real Meaning of FISA
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Core question - Does FISA delineate 4th
Amendment standards for foreign intelligence, or
does FISA establish the standards for deciding
that intelligence is outside the scope of the 4th
amendment?
 What did Congress think it was doing?
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The Holding
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What did the judge hold about the FISA balancing
of 4th amendment protections and the need to do
foreign intelligence?
What about defendant's claims that foreign
terrorism does not implicate US national security
interests?
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When is FISA Necessary?
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Given what we now know about the application of
the constitution to foreigners outside of the US, if
the judge finds that the intelligence is directed at
foreigners outside the US, does the government
need FISA at all?
 In that situation, what is the role of FISA?
When is FISA necessary outside the US?
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The FISA Court
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How is the FISA court selected?
What is the FISA appeals court?
Does the United States Supreme Court have jurisdiction
over FISA appeals?
Why was FISA amended to require the Attorney General
personally to review and to justify in writing any decision
not to approve an application for a FISA order?
What is the problem with doing quality control on FISA
requests?
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Standard for Reviewing the FISA Judge
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How does the legislative history indicate that the
appeals court should review the findings of the
FISA judge?
Does this look like classic agency deference,
rather than the review of a criminal law warrant?
What did the Senate report say about the overlap
between foreign intelligence and criminal
investigations?
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The Primary Purpose versus Sole Purpose
Doctrine
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What is the problem that the primary purpose doctrine
addresses?
When may the judge disclose supporting documents for
the FISA warrant to the defense?
 The judge has the discretion to disclose portions of
the documents, under appropriate protective
procedures, only if he decides that such disclosure is
‘‘necessary to make an accurate determination of the
legality of the surveillance.’’ 50 U.S.C. §1806(f).
What is the standard for disclosing documents to the
defense in the ordinary criminal proceedings?
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FISA
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What types of electronic surveillance does FISA
contemplate?
 http://www4.law.cornell.edu/uscode/50/usc_sec
_50_00001801----000-.html
Does FISA allow video surveillance?
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Post 9/11 Changes
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How was the pen register language modified after 9/11 to
include email?
 ‘‘dialing, routing, addressing, or signaling information
transmitted by an instrument or facility from which a
wire or electronic communication is transmitted,
provided . . . that such information shall not include
the contents of any communication.’’
What else might this allow the feds to collect?
How might an automatic out of office message get you in
trouble under this law?
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Physical Searches
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How was FISA amended to include physical searches?
 Congress amended FISA to permit physical searches
in the United States for the purpose of collecting
‘‘foreign intelligence information’’ of the ‘‘premises,
property, information or material of a foreign power or
agent of a foreign power.’
What are the limits on a physical search?
Is there a notice provision for the target?
Why are different procedures used than for criminal
searches?
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The Lone Wolf Provision
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What is the "lone wolf provision" - 50 U.S.C.
§1801(b)(1)(C)?
 any person who engages in international
terrorism or activities in preparation therefore
What does the "lone wolf provision" do to the
notion of an agency of a foreign power?
Add in the transnational boundary provisions and
how can you include the military base shooter?
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FISA Expansion
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How was the basis for probable cause under FISA
expanded in 2000?
How does this broaden FISA?
 Why should this make you worry more about
mistakes by NSA in reading your email?
What does it mean for Jerry Adams?
What is the emergency exception for FISA?
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