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.

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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