Class #7: Electronic Surveillance: The TSP & the Evolution of FISA Professor Emily Berman Tuesday, September 16, 2014
Class #7: Electronic Surveillance: The
TSP & the Evolution of FISA
Professor Emily BermanTuesday, September 16, 2014
Tuesday, September 16, 2014
Recap the rise and fall of The Wall & In re Sealed Case
Programmatic Surveillance• The Terrorist Surveillance Program (TSP)
• The Protect America Act of 2007
• The FISA Amendments Act of 2008
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Pre-9/11: Requirement that “thepurpose” of surveillance is to obtain foreign intelligence information interpreted by DOJ to require strict criminal/intelligence separation.
Post-9/11: PATRIOT Act amended the statutory language so that only “a significant purpose” of the surveillance must be to obtain foreign intelligence information.
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Holding:
• Distinguished between “ordinary crimes,”
whose prosecution cannot be the primary
purpose of FISA surveillance, and “national
security crimes.”
Per Curiam (602):
• “[I]t is virtually impossible to read the 1978
FISA to exclude from its purpose the
prosecution of FI crimes” such as espionage,
sabotage or terrorism.
4
Lingering limits on use of FISA
surveillance:
• (604): “Sole objective” cannot be is to
obtain evidence of a past criminal conduct.
• (604): “Primary objective cannot be to
prosecute for a non-foreign intelligence
crime.”
Note: The FI/non-FI distinction is not
necessarily any more stable or predictable
than the primary purpose test it replaced.5
Applies only to “electronic surveillance:
1) wire or radio communication to/from an
intentionally targeted USP in the US;
2) wire (fiber-optics) communication to/from
any person in the US, if such acquisition
occurs in the United States;
3) radio (satellite) communication, if the
sender & all recipients are in the US; or
4) Installation of a surveillance device in the
US for information . . . that would require a
warrant for law enforcement purposes.6
Four Elements of the PSP
1. Internet metadata (discontinued in
2011 because ineffective)
2. Internet communications
3. Telephone metadata
4. Telephone communications (TSP)
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Technological changes + 1% doctrine = TSP:
Surveillance of communications where at
least one party was outside the US and there
was reason to believe (not necessarily
probable cause) that one or more parties
involved in the communication had ties to
al Qaeda.
Why could the government not
achieve this with traditional FISA?8
Chronology of the PSP
2001: TSP implemented in secret
2004: DOJ officials question the legality of some elements of the PSP, and some changes are made
2005: WaPo reveals the existence of element #4 of the PSP, known as the TSP
January 2007: TSP brought under the auspices of the FISC & “traditional” FISA
May 2007: FISC refuses to reauthorize the TSP under FISA, and the President asks Congress to enact legislation
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The PSP & TSP:
• Initiated in 2001
• Authorized surveillance of the
international electronic communications
to/from anyone with a link to AQ.
Protect America Act of 2007(PAA):
• Expired after 6 months.
• Subject of In re Directives.
FISA Amendments Act of 2008 (FAA):
• Reinstated a regime similar to the PAA.
• Includes the controversial “section 702.”10
(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 (no “reverse targeting”).
(b)(3): May not target a US person abroad.
50 U.S.C. § 1881a (a/k/a FAA § 702) (619):
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Facts:
• Government acquired an order to engage in
non-individualized warrantless surveillance
• Telecommunications company challenged the
directive with respect to its customers.
Selya, C.J. (623):
• “Applying principles derived form the special
needs cases, we conclude that this type of
foreign intelligence surveillance possesses
characteristics that qualify for such an
exception.”
• Court also finds the surveillance reasonable.12