Class #8: Electronic Surveillance: Edward Snowden & the FISA Amendments Act Professor Emily Berman Thursday, September 18, 2014
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Class #8: Electronic Surveillance: Edward Snowden & the FISA
Amendments Act
Professor Emily BermanThursday, September 18, 2014
Thursday, September 18, 2014
Wrap up In re Directives
Continue Discussion of Programmatic Surveillance
• Closer look at Section 702 of the FISA Amendments Act of 2008
• [Case Title Redacted], FISC, 2012 (Bates, J.)
2
Implemented shortly after 9/11
Initially included four elements (internet
& telephone content and metadata)
2001-2007: Authorized by executive-
branch officials
January – May 2007: TSP authorized by
FISC judges
August 2007 – January 2008: Protect
America Act
July 2008 - Present: FISA Amendments Act3
Facts:
• Government acquired an order to engage in non-
individualized warrantless surveillance
• [Redacted] telecommunications company
(Yahoo) challenged the directive with respect to
its customers.
Holding:
• Programmatic surveillance qualifies for a warrant
exception under the “special needs” doctrine.
• The surveillance is reasonable because of the
strength of the government interest and the
privacy protections built into the statute.4
Relevant Privacy Protections:
• Targeting Procedures
• Minimization procedures
• Requirement that foreign intelligence
collection be a “significant purpose” of the
surveillance
• Executive order 12,333
• Defense Department procedures (NSA is
part of the Defense Department)
• [Redacted] procedures5
(a): Empowers the AG and DNI to “authorize jointly, for a period of up to 1 year . . . the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.”
(b)(1): May not target anyone known to be in the US.
(b)(2): May not target someone outside the US in order to collect communications of a particular person in the US.
(b)(3): May not target a US person abroad.
50 U.S.C. § 1881a (a/k/a FAA § 702) (619):
6
Former CIA analyst and NSA contractor
Leaked a number of classified documents to, inter alia, Glenn Greenwald, a reporter for The Guardian.
Documents relate to FAA § 702 andother programs. 7
Edward Snowden
8
9
10
11
Collection
Target or
“facility”
Selectors
Tasking
Contact chaining
Queries
Minimization
12Edward Snowden
Facts:
• Government was seeking recertification of
a collection program that had been
approved by the FISC in “prior dockets.”
• Government disclosed new information
about the nature of the NSA’s “upstream
collection” of Internet communications that
changed the FISC’s opinion of the
constitutionality of the collection, given
existing minimization procedures. 13
New Information provided to the FISC (115):
• “[Internet transactions that the NSA collects]
could and often do contain multiple discrete
communications, including wholly non-target
communications and other non-target
communications to, from, or concerning USPs.
. . . “[T]he net effort of the procedures [was]
that thousands of [communications] that are
not to or from a targeted selector but that are
to, from, or concerning USPs, would be
retained by NSA for at least 5 years.”14
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