Amendments to the Foreign Intelligence
Surveillance Act (FISA) Set to Expire
May 27, 2011
Edward C. Liu
Legislative Attorney
March 1May 20, 2011
Congressional Research Service
7-5700
www.crs.gov
R40138
CRS Report for Congress
Prepared for Members and Committees of Congress
Amendments to the Foreign Intelligence Surveillance Act Set to Expire May 27, 2011
Summary
Three amendments to the Foreign Intelligence Surveillance Act (FISA) are set to expire (sunset)
on May 27, 2011. The three sunsetting amendments expanded the scope of federal intelligencegathering authority following the 9/11 terrorist attacks.
Two amendments were enacted as part of the USA PATRIOT Act. Section 206 of the USA
PATRIOT Act amended FISA to permit multipoint, or “roving,” wiretaps by adding flexibility to
the degree of specificity with which the location or facility subject to electronic surveillance
under FISA must be identified. Section 215 enlarged the scope of materials that could be sought
under FISA to include “any tangible thing.” It also lowered the standard required before a court
order may be issued to compel their production.
The third amendment was enacted in 2004, as part of the Intelligence Reform and Terrorism
Prevention Act (IRTPA). Section 6001(a) of the IRTPA changed the rules regarding the types of
individuals who may be targets of FISA-authorized searches. Also known as the “lone wolf”
provision, it permits surveillance of non-U.S. persons engaged in international terrorism without
requiring evidence linking those persons to an identifiable foreign power or terrorist organization.
Although these provisions are set to sunset, grandfather clauses permit them to remain effective
with respect to investigations that began, or potential offenses that took place, before the sunset
date.
In the 112th Congress, several bills have been introduced that would extend all three provisions
for varying amounts of time. The current sunset date is the result of a three-month extension
contained in H.R. 514, which was signed into law on February 25, 2011. H.R. 67 would postpone
the sunset of all three provisions until February 29, 2012.
In the Senate, S. beyond May 27, 2011. In the House of Representatives, H.R. 67 would postpone the sunset of all
three provisions until February 29, 2012. H.R. 1800, which was favorably reported out of the
House Judiciary Committee on May 12, 2011, would extend the roving wiretap and section 215
authorities until December 31, 2017, while making the “lone wolf” provision permanent.
In the Senate, S. 1022 would extend the three expiring provisions until December 31, 2014. S.
149 and S. 289 would extend the three expiring provisions until December 13,
31, 2013, andbut would
also extend Title VII of FISA, which governs the electronic surveillance of
persons outside the
United States, until the same date. S. 193 and S. 290 would extend the three
provisions until December 31, 2013, and would, as favorably reported by the Senate Judiciary
Committee, would similarly extend the three expiring provisions and Title VII of FISA until
December 31, 2013. S. 193 would also make substantive amendments to the authorities
governing governing
§ 215 orders, certain other FISA provisions, and national security letters. S. 291 would
make all
three provisions permanent.
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Amendments to the Foreign Intelligence Surveillance Act Set to Expire May 27, 2011
Contents
Overview ....................................................................................................................................1
Background ................................................................................................................................2
Distinction Between FISA Court Orders and Warrants in Criminal Investigations ..................2
Distinction Between FISA Court Orders and National Security Letters ..................................4
Electronic Surveillance Targeting Persons Who Are Overseas ...............................................5
Expiring FISA Amendments........................................................................................................56
“Lone Wolf” Terrorists ..........................................................................................................56
Historical Context ...........................................................................................................57
Legislative Responses .....................................................................................................67
Roving Wiretaps ...................................................................................................................78
Background ....................................................................................................................78
Section 206 and “Other Persons”.....................................................................................78
Particularity Requirement of the Fourth Amendment .......................................................89
Access to Business Records Under FISA...............................................................................9 10
Background ....................................................................................................................9 11
Expansion of the Scope of Documents Subject to FISA................................................. 1011
Changes to the Standard of Review ............................................................................... 1112
Nondisclosure and Judicial Review ............................................................................... 1113
DOJ OIG Report ........................................................................................................... 1214
Effect of Sunset Provisions........................................................................................................ 1314
Legislative Proposals in the 112th Congress ............................................................................... 1415
Delay of Sunsets ................................................................................................................. 1415
Substantive Amendments .................................................................................................... 1416
Contacts
Author Contact Information ...................................................................................................... 1617
Congressional Research Service
Amendments to the Foreign Intelligence Surveillance Act Set to Expire May 27, 2011
Overview
The Foreign Intelligence Surveillance Act (FISA) provides a statutory framework by which
government agencies may, when gathering foreign intelligence investigation,1 obtain
authorization to conduct electronic surveillance2 or physical searches,3 utilize pen registers and
trap and trace devices, 4 or access specified business records and other tangible things.5
Authorization for such activities is typically obtained via a court order from the Foreign
Intelligence Surveillance Court (FISC), a specialized court created to act as a neutral judicial
decision maker in the context of FISA.
Shortly after the 9/11 terrorist attacks, Congress enacted the USA PATRIOT Act, in part, to
“provid[e] enhanced investigative tools” to “assist in the prevention of future terrorist activities
and the preliminary acts and crimes which further such activities.”6 That act and subsequent
measures7 amended FISA to enable the government to obtain information in a greater number of
circumstances.
The expanded authorities prompted concerns regarding the appropriate balance between national
security interests and civil liberties. Perhaps in response to such concerns, Congress established
sunset provisions which apply to three of the most controversial amendments to FISA. These
amendments include
•
Section 6001(a) of the Intelligence Reform and Terrorism Prevention Act
(IRTPA), also known as the “lone wolf” provision, which simplifies the
evidentiary showing needed to obtain a FISA court order to target non-U.S.
persons who engage in international terrorism or activities in preparation
therefor, specifically by authorizing such orders in the absence of a proven link
between a targeted individual and a foreign power;8
•
Section 206 of the USA PATRIOT Act, which permits multipoint, or “roving,”
wiretaps (i.e., wiretaps which may follow a target even when he or she changes
phones) by adding flexibility to the manner in which the subject of a FISA court
order is specified;9 and
1
Although FISA is often discussed in relation to the prevention of terrorism, it applies to the gathering of foreign
intelligence information for other purposes. For example, it extends to the collection of information necessary for the
conduct of foreign affairs. See 50 U.S.C. § 1801(e) (2008) (definition of “foreign intelligence information”).
2
50 U.S.C. §§ 1801-1808 (2008).
3
50 U.S.C. §§ 1822-1826 (2008).
4
50 U.S.C. §§ 1841-1846 (2008). Pen registers capture the numbers dialed on a telephone line; trap and trace devices
identify the originating number of a call on a particular phone line. See 18 U.S.C. § 3127(3)-(4) (2008).
5
50 U.S.C. §§ 1861-1862 (2008).
6
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
(USA PATRIOT) Act of 2001, P.L. 107-56 (2001); H.Rept. 107-236, pt. 1, at 41 (2001).
7
See, e.g., Intelligence Reform and Terrorism Prevention Act, P.L. 108-458 (2004).
8
Id. at § 6001(a), codified at 50 U.S.C. § 1801(b)(1)(C) (2008).
9
P.L. 107-56, § 206, codified at 50 U.S.C. § 1805(c)(2)(B) (2008).
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Amendments to the Foreign Intelligence Surveillance Act Set to Expire May 27, 2011
•
Section 215 of the USA PATRIOT Act, which broadens the types of records and
other tangible things that can be made accessible to the government under
FISA.10
Although the amendments were initially set to expire in 2005, a 2005 reauthorization measure set
a new sunset date of December 31, 2009.11 Since then, a number of additional extensions have
been enacted, with the most recent extension expiring on May 27, 2011.12
Background
FISA, enacted in 1978, provides a statutory framework which governs governmental authority to
conduct, as part of an investigation to gather foreign intelligence information, electronic
surveillance and other activities to which the Fourth Amendment warrant requirement would
apply if they were conducted as part of a domestic criminal investigation.13 Its statutory
requirements arguably provide a minimum standard that must be met before foreign intelligence
searches or surveillance may be conducted by the government.14
Distinction Between FISA Court Orders and Warrants in
Criminal Investigations
The Fourth Amendment to the U.S. Constitution protects against “unreasonable searches and
seizures.”15 In domestic criminal law investigations, it generally requires law enforcement
officers to obtain a court-issued warrant before conducting a search.16 When the warrant
10
Id. at § 215, codified at 50 U.S.C. §§ 1861-2 (2008).
See USA PATRIOT Improvement and Reauthorization Act of 2005, P.L. 109-177 (2006). Congress also modified
the three amendments as part of the 2005 reauthorization act and various other measures. See, e.g., An act to amend the
USA PATRIOT Act to extend the sunset of certain provisions of that Act and the lone wolf provision of the
Intelligence Reform and Terrorism Prevention Act of 2004 to July 1, 2006, P.L. 109-160 (2005); USA PATRIOT Act
Additional Reauthorizing Amendments Act of 2006, P.L. 109-178 (2006); Protect America Act of 2007, P.L. 110-55
(2007); FISA Amendments Act of 2008, P.L. 110-261 (2008).
12
Department of Defense Appropriations Act, 2010, P.L. 111-118, § 1004 (2009) (replacing “December 31, 2009” with
“February 28, 2010” in relevant provisions of the USA PATRIOT Act and Intelligence Reform and Terrorism
Prevention Act).P.L. 111-141 (extension until February 28, 2011); P.L. 112-3 (extension until May 27, 2011).
13
The scope of activities governed by FISA relates to the scope of the Fourth Amendment warrant requirement insofar
as the statute refers to the warrant requirement in its definitions. See 50 U.S.C. § 1801 (restricting the definition of
electronic surveillance to instances “in which a person has a reasonable expectation of privacy and a warrant would be
required for law enforcement purposes”) (emphasis added).
14
But see CRS Report R40888, Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather
Foreign Intelligence Information, by Elizabeth B. Bazan and Jennifer K. Elsea, at 29-33 (“While the congressional
intent to cabin the President’s exercise of any inherent constitutional authority to engage in foreign intelligence
electronic surveillance may be clear from the exclusivity provision in FISA and from the legislative history of the
measure, some support may be drawn from the [Foreign Intelligence Surveillance] Court of Review’s decision in In re
Sealed Case for the position that the President continues to have the power to authorize warrantless electronic
surveillance to gather foreign intelligence outside the FISA framework”).
15
U.S. Const. amend. IV.
11
16
See Katz v. United States, 389 U.S. 347, 357 (1967) (“[S]earches conducted outside the judicial process without prior
approval by judge or magistrate are per se unreasonable under the Fourth Amendment—subject only to a few
specifically established and well delineated exceptions.”).
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Amendments to the Foreign Intelligence Surveillance Act Set to Expire May 27, 2011
requirement does not apply, government activity is generally subject to a “reasonableness” test
under the Fourth Amendment.17
The extent to which the warrant requirement applies to the government’s collection of foreign
intelligence is unclear. In a 1972 case, the Supreme Court invalidated warrantless electronic
surveillance of domestic organizations on Fourth Amendment grounds, despite the government’s
assertion of a national security rationale. 18 However, it indicated that its conclusion might be
different in a future case involving the electronic surveillance of foreign powers or their agents,
within or outside the United States.19 In a 2002 case, the Foreign Intelligence Surveillance Court
of Review upheld FISA, as amended by the USA PATRIOT Act, against a Fourth Amendment
challenge. 20 The court assumed, without deciding the question, that FISA court orders do not
constitute warrants for purposes of the Fourth Amendment analysis. Relying on a general
reasonableness analysis, it nonetheless upheld such orders, emphasizing both the privacy
protections in the statutory framework and the governmental interest in preventing national
security threats.21
Thus, although they apply to similar government activities, different standards govern FISA court
orders and warrants issued by judges in criminal investigations. Search warrants in the general
criminal law context must be justified by indicia of criminal conduct. In contrast, a substantial
purpose of court orders obtained pursuant to FISA must be the collection of foreign intelligence
information. 22 Although both FISA orders and criminal warrants require impartial judicial review
to determine whether probable cause exists, the propositions that must be supported by probable
cause are substantially different in the two frameworks. In the case of a FISA court order, the
FISC, in authorizing electronic surveillance or a physical search, must find probable cause to
believe both (1) that the person targeted by the order is a foreign power or its agent, and (2) that
the subject of the search (i.e., the telecommunications or place to be searched) is owned,
possessed, or will be used by the target.23
17
Also called the “general balancing,” “general reasonableness,” or “totality-of-the circumstances” test, it requires a
court to determine the constitutionality of a search or seizure “by assessing, on the one hand, the degree to which [a
search or seizure] intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the
promotion of legitimate governmental interests.” Samson v. California, 547 U.S. 843, 848 (2006).
18
U.S. v. U.S. District Court, 407 U.S. 297, 321-24 (1972) (also referred to as the Keith case, so named for the District
Court judge who initially ordered disclosure of unlawful warrantless electronic surveillance to the defendants).
19
Id. at 321-22. See also In re Directives, 2008 U.S. App. LEXIS 27417551 F.3d 1004 (U.S. Foreign Intell. Survellance Ct. Rev.
2008) (holding that
the foreign intelligence surveillance of targets reasonably believed to be outside of the U.S.
qualifies for the “special
needs” exception to the warrant requirement); CRS Report R40888, Presidential Authority to
Conduct Warrantless
Electronic Surveillance to Gather Foreign Intelligence Information, by Elizabeth B. Bazan and
Jennifer K. Elsea, at 9-12912 (discussing courts’ differing application of the Fourth Amendment to searches for the
purpose of foreign intelligence
collection).
20
In re Sealed Case, 310 F.3d 717 (Foreign Intell. Survellance Ct. Rev. 2002).
21
Id. at 738-46.
22
See, e.g., 50 U.S.C. § 1804(a)(7)(B) (2008). Prior to 2001, the statute had required that “the purpose” of a FISA
warrant be foreign intelligence collection.
23
50 U.S.C. § 1805(a)(3) (2008) (electronic surveillance); Id. at § 1824(a)(3) (physical searches). In contrast, federal
criminal search warrants require probable cause to believe that instrumentalities, evidence, or fruits of a crime will be
found in the place to be searched. See Fed. R. Crim. P. 41(c). Criminal warrants authorizing electronic surveillance
additionally require probable cause to believe that the target is engaged in criminal activities, that normal investigative
techniques are insufficient, and that the facilities that are the subject of surveillance will be used by the target. 18
U.S.C. § 2518(3) (2008).
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Amendments to the Foreign Intelligence Surveillance Act Set to Expire May 27, 2011
Distinction Between FISA Court Orders and
National Security Letters
Among the more complex questions regarding the expiring FISA amendments are those
concerning authorities for the production of business records and other tangible materials. One
reason for the complexity is that national security letters provide an overlapping source of
authority in some circumstances. National security letters, which are analogous to administrative
subpoenas and are authorized by five federal statutes,24 require businesses to produce specified
records to federal officials in national security investigations. 25 As a practical matter, national
security letters are issued much more frequently than are FISA court orders for the production of
documents. In 2006, for example, less than 50 such FISA orders were issued, compared with the
FBI’s issuance of more than 50,000 national security letters.26 However, FISA court orders
provide access to categories of records and other tangible things not available via national
security letters, which are relatively limited in scope.
Like orders issued pursuant to FISA, national security letters are justified by national interests
other than criminal law enforcement and are often presumed to be exempt from the Fourth
Amendment warrant requirement.27 They differ from FISA orders in several respects, however.
FISA orders must be obtained from the FISC; national security letters are issued directly by
federal agency officials. In addition, as mentioned, the scope of documents which may be
obtained pursuant to a national security letter is more limited than that which might be authorized
in a FISA order. As mentioned, the authority for national security letters is derived from five
statutes, each of which pertains to only a narrow category of documents.28
The USA PATRIOT Act expanded authorities for the issuance of national security letters. For
example, key amendments extended issuing authority to the Special Agents in Charge at FBI field
offices. The authority had previously been limited to officials at FBI headquarters. It also
extended issuing authority in some circumstances to officials from federal agencies other than the
FBI. Other provisions addressed the government’s authority to prohibit recipients of national
security letters to disclose that they have received such requests. Such authorities have been
modified since the USA PATRIOT Act by legislation and judicial decisions.29
24
See infra note 28 and accompanying text.
For a detailed examination of national security letters, see CRS Report RL33320, National Security Letters in
Foreign Intelligence Investigations: Legal Background and Recent Amendments, by Charles Doyle.
26
See OFFICE OF THE INSPECTOR GENERAL, DEP’T OF JUSTICE, A Review of the FBI’s Use of National Security Letters:
Assessment of Corrective Actions and Examination of NSL Usage in 2006, March 2008, http://www.usdoj.gov/oig/
special/s0803b/final.pdf; OFFICE OF THE INSPECTOR GENERAL, DEP’T OF JUSTICE, A Review of the FBI’s Use of Section
215 Orders for Business Records in 2006, March 2008, available at http://www.usdoj.gov/oig/special/s0803a/final.pdf.
27
Support for the exemption may be found in a 1976 Supreme Court case, U.S. v. Miller, 425 U.S. 435 (1976), in
which the Court held that the warrant requirement does not apply to an individual’s bank account records.
28
See 12 U.S.C. § 3414(a)(5) (records of 21 specified types of financial institutions); 18 U.S.C. § 2709 (records of
telecommunications providers); 15 U.S.C. §§ 1681u, 1681v (credit reports); and 50 U.S.C. § 436 (various specified
types of records related to the finances and travel of government employees, which may be obtained only in
investigations involving alleged leaks of classified information by such employees).
29
The 2005 reauthorization of the USA PATRIOT Act, P.L. 109-177, created a judicial enforcement mechanism,
tightened and clarified the circumstances in which an agency can prohibit a provider from disclosing the receipt of a
national security letter, expanded congressional oversight, and called for an audit by the Justice Department Office of
the Inspector General, among other measures. Judicial decisions preceding the reauthorization measure had struck
down provisions which denied judicial review and prohibited disclosure. See Doe v. Ashcroft, 334 F.Supp.2d 471
(continued...)
25
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Amendments to the Foreign Intelligence Surveillance Act Set to Expire May 27, 2011
Additional USA PATRIOT Act amendments to national security letter authorities resembled the
§ 215 amendment governing FISA orders for the production of documents, discussed infra. In
both cases, the relevant amendments broadened the predicate circumstances which trigger
authority for the request of documents. National security letters previously required the
government to demonstrate a connection to a foreign power or its agent. The USA PATRIOT Act
amendments authorize their issuance when documents sought are shown to be relevant to an
investigation to protect against international terrorism or foreign spying. The § 215 amendment
makes an analogous change. Unlike the § 215 amendment, however, the national security letter
amendment contains no sunset provision.
Expiring FISA Amendments
As discussed, three amendments to FISA are set to sunset—the “lone wolf,” “roving wiretap,”
and § 215 provisions. Although the amendments are often discussed as a group and may implicate
similar questions regarding what legal standards govern the FISC’s determinations, unique
historical and legal issues apply to each amendment.
“Lone Wolf” Terrorists
Commonly referred to as the “lone wolf” provision, § 6001(a) of IRTPA simplifies the evidentiary
standard used to determine whether an individual, other than a citizen or a permanent resident of
the United States, who engages in international terrorism, may be the target of a FISA court order.
It does not modify other standards used to determine the secondary question of whether the
electronic surveillance or a physical search of the subject of a court order is justified in a specific
situation.
Historical Context
The historical impetus for the “lone wolf” provision involved Zacarias Moussaoui, one of the
individuals believed to be responsible for the 9/11 terrorist attacks. During the examination of the
events leading up to the attacks, it was reported that investigations regarding Moussaoui’s
involvement were hampered by limitations in FISA authorities.30 Specifically, FBI agents
investigating Moussaoui suspected that he had planned a terrorist attack involving piloting
commercial airliners, and had detained him in August of 2001 on an immigration charge. 31 The
FBI agents then sought a court order under FISA to examine the contents of Moussaoui’s laptop
(...continued)
(S.D.N.Y. 2004); Doe v. Gonzales, 386 F.Supp.2d 66 (D.Conn. 2005). In a decision which post-dates the
reauthorization, John Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008), the U.S. Court of Appeals for the Second Circuit
held that the national security letter provision related to electronic communications records is unconstitutional to the
extent that it imposes a nondisclosure requirement without government-initiated judicial review in which the
government bears the burden of proving that nondisclosure is necessary.
30
NAT’L COMM. ON TERRORIST ATTACKS UPON THE U.S., The 9/11 Commission Report, at 273-274 [hereinafter “9/11
Comm’n Rep.”]
31
Id. at 273. Moussaoui, a French national, was present in the United States with an expired visa.
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Amendments to the Foreign Intelligence Surveillance Act Set to Expire May 27, 2011
computer.32 However, the agency apparently concluded that it had insufficient information at that
time to demonstrate that Moussaoui was an agent of a foreign power as then required by FISA.33
Prior to its amendment, FISA authorized the FISC to approve, among other things, physical
searches of a laptop only if probable cause existed to believe the laptop was owned or used by a
foreign power or its agent.34 The definition of a “foreign power” included “groups engaged in
international terrorism or activities in preparation therefor.”35 Individuals involved in international
terrorism for or on behalf of those groups were considered “agents of a foreign power.”36 In the
weeks leading up to the attacks, it appears that the FBI encountered an actual or perceived
insufficiency of information demonstrating probable cause to believe that Moussaoui was acting
for or on behalf of an identifiable group engaged in international terrorism. 37
Legislative Responses
Following these revelations, a number of legislative proposals were put forth to amend the
definition of “agents of a foreign power” under FISA so that individuals engaged in international
terrorism need not be linked to a specific foreign power.38 One such amendment was ultimately
enacted with passage of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA).39
Section 6001 of the legislation, known as the “lone wolf” provision, provides that persons, other
than citizens or permanent residents of the U.S., who are engaged in international terrorism are
presumptively considered to be agents of a foreign power. 40 The provision obviates any need to
provide an evidentiary connection between an individual and a foreign government or terrorist
group.
Critics of the “lone wolf” provision argued that the laptop in the Moussaoui case could have been
lawfully searched under FISA or the laws governing generic criminal warrants.41 Critics also
expressed concern that the simplified “lone wolf” standard would lead to “FISA serving as a
substitute for some of our most important criminal laws.”42
Proponents of the provision noted that the increased self-organization among terror networks has
made proving connections to identifiable groups more difficult. Thus, a “lone wolf” provision is
32
Id. at 273-274.
Id. at 274. Based upon this conclusion, the FBI “declined to submit a FISA application” to the FISC.
34
50 U.S.C. § 1821-1824 (2001).
35
50 U.S.C. § 1801(a)(4) (2001). At the time, foreign powers also included foreign governments, entities controlled by
those governments, and factions of foreign nations and foreign-based political organizations that are not substantially
composed of United States persons. Id. at § (a)(1-6)
36
50 U.S.C. § 1801(b)(2)(C) (2001).
37
See 9/11 Comm’n Rep. at 274. It is unclear whether a search of Moussaoui’s laptop before September 11, 2001,
would have provided enough information to prevent or minimize those attacks.
38
S. 2586, 107th Cong. (2002); S. 113, 108th Cong. (2003).
39
S. 2845, 108th Cong. (2004) (enacted).
40
P.L. 108-458, § 6001(a), codified at 50 U.S.C. § 1801(b)(1)(3) (2008).
33
41
See S.Rept. 108-40 at 33-41 (additional views of Senator Leahy and Senator Feingold on a similar “lone wolf”
provision in S. 113).
42
Id. at 73 (additional views of Senator Feingold).
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necessary to combat terrorists who use a modern organizational structure or who are selfradicalized.43
Roving Wiretaps
Section 206 of the USA PATRIOT Act amended FISA to permit multipoint, or “roving,” wiretaps
by adding flexibility to the degree of specificity with which the location or facility subject to
electronic surveillance under FISA must be identified.44 It is often colloquially described as
allowing FISA wiretaps to target persons rather than places.
Background
Prior to enactment of § 206, the scope of electronic surveillance authorized by a court order was
limited in two ways. First, the location or facility that was the subject of surveillance had to be
identified. 45 Second, only identifiable third parties could be directed by the government to
facilitate electronic surveillance.46 Conducting electronic surveillance frequently requires the
assistance of telecommunications providers, landlords, or other third parties. Furthermore,
telecommunications providers are generally prohibited from assisting in electronic surveillance
for foreign intelligence purposes, except as authorized by FISA.47Electronic Surveillance Targeting Persons Who Are Overseas
While FISA is clearly applicable to the domestic use of these intelligence gathering tools when
targeted at persons located in the United States, policymakers have debated how FISA should
apply to the use of electronic surveillance and other intelligence tools in foreign jurisdictions or to
situations where the target is not presently in the United States. Currently, FISA’s applicability in
these contexts is governed by the provisions of the FISA Amendments Act of 2008,30 which is
subject to sunset on December 31, 2012. In light of this approaching sunset, this section provides
a brief history and overview of the FISA Amendments Act, as issues relating to its reauthorization
have begun to be considered alongside the more immediate sunsets.
This debate was largely precipitated by media reports, in 2005, that the National Security Agency,
with the cooperation of domestic telecommunications providers, had been intercepting calls made
between suspected terrorists located outside of the United States and others located within the
United States without obtaining judicial orders authorizing such surveillance through the
procedures provided under FISA.31 In response to this revelation, Congress enacted the Protect
America Act (PAA) in 2007 to explicitly limit the scope of FISA’s traditional electronic
surveillance approval process to domestically located targets.32 For targets that were located
outside of the United States, the PAA permitted wiretapping of such persons if jointly authorized
by the Attorney General and the Director of National Intelligence, without prior judicial review
by the FISC.33 The PAA was only authorized for one year, and was allowed to expire in 2008.
(...continued)
(S.D.N.Y. 2004); Doe v. Gonzales, 386 F.Supp.2d 66 (D.Conn. 2005). In a decision which post-dates the
reauthorization, John Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008), the U.S. Court of Appeals for the Second Circuit
held that the national security letter provision related to electronic communications records is unconstitutional to the
extent that it imposes a nondisclosure requirement without government-initiated judicial review in which the
government bears the burden of proving that nondisclosure is necessary.
30
P.L. 110-261.
31
See James Risen and Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at 1.
32
50 U.S.C. § 1805a.
33
50 U.S.C. § 1805b. Although the FISC would not review the individual authorizations made by the Attorney General
and the Director of National Intelligence, the PAA did require the FISC to approve the procedures that would be used
by the Attorney General and the DNI to determine whether the targets were presently located within the United States.
50 U.S.C. § 1805c. In 2008, the FISA Court of Review held that these procedures were constitutional because the
warrant requirement did not apply to foreign intelligence acquisitions targeting persons outside of the United States,
and the search was otherwise reasonable. In re Directives Pursuant to Section 105b of the Foreign Intelligence
Surveillance Act, 551 F.3d 1004 (U.S. Foreign Intel. Surveil. Ct. Rev. 2008) (upholding telecommunication company’s
challenge to electronic surveillance conducted without a FISA court order).
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After the expiration of the PAA, Congress enacted the FISA Amendments Act (FAA) to again
address the targeting of persons while they were outside the United States to gather foreign
intelligence information. Unlike the PAA, the FAA did not constrain the use of FISA’s classic
procedures for conducting surveillance on overseas targets. However, the FAA did provide
alternate procedures that could be used to target these persons, subject to a sunset of December
31, 2012.34
The procedures for targeting persons abroad varied based on whether the target was a United
States person, as well as whether the physical location where the acquisition of foreign
intelligence information would take place was on domestic or foreign soil. Acquiring electronic
communications of non-U.S. persons while they are abroad may be jointly authorized by the
Attorney General and the Director of National Intelligence, rather than by an order issued by the
FISC.35 Electronic surveillance and physical searches targeting U.S. persons who are abroad still
requires a court to find that there is probable cause to believe that the target is a foreign power, or
an agent of a foreign power.36
Upon enactment of the FAA, a number of organizations brought suit challenging the joint
authorization procedure for surveillance of non-U.S. persons abroad as violating the Fourth
Amendment. Although the case was originally dismissed for lack of standing, the Second Circuit
recently ruled that the organizations had suffered sufficient injury, based on the financial costs
they incurred in order to avoid the reasonable fear of being subject to surveillance under the FAA.
Consequently, the case has been remanded to the trial court to address the merits of the plaintiffs’
Fourth Amendment challenge. 37
Expiring FISA Amendments
As discussed, three amendments to FISA are set to sunset—the “lone wolf,” “roving wiretap,”
and § 215 provisions. Although the amendments are often discussed as a group and may implicate
similar questions regarding what legal standards govern the FISC’s determinations, unique
historical and legal issues apply to each amendment.
“Lone Wolf” Terrorists
Commonly referred to as the “lone wolf” provision, § 6001(a) of IRTPA simplifies the evidentiary
standard used to determine whether an individual, other than a citizen or a permanent resident of
the United States, who engages in international terrorism, may be the target of a FISA court order.
It does not modify other standards used to determine the secondary question of whether the
electronic surveillance or a physical search of the subject of a court order is justified in a specific
situation.
34
P.L. 110-261, § 403(b)(1).
50 U.S.C. § 1881a.
36
50 U.S.C. §§ 1881b, 1881c.
37
Amnesty Int’l v. Clapper, 2011 U.S. App. LEXIS 5699 (2d Cir. Mar. 21, 2011) reversing Amnesty Int'l United States
v. McConnell, 646 F. Supp. 2d 633 (S.D.N.Y., 2009).
35
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Historical Context
The historical impetus for the “lone wolf” provision involved Zacarias Moussaoui, one of the
individuals believed to be responsible for the 9/11 terrorist attacks. During the examination of the
events leading up to the attacks, it was reported that investigations regarding Moussaoui’s
involvement were hampered by limitations in FISA authorities.38 Specifically, FBI agents
investigating Moussaoui suspected that he had planned a terrorist attack involving piloting
commercial airliners, and had detained him in August of 2001 on an immigration charge. 39 The
FBI agents then sought a court order under FISA to examine the contents of Moussaoui’s laptop
computer.40 However, the agency apparently concluded that it had insufficient information at that
time to demonstrate that Moussaoui was an agent of a foreign power as then required by FISA.41
Prior to its amendment, FISA authorized the FISC to approve, among other things, physical
searches of a laptop only if probable cause existed to believe the laptop was owned or used by a
foreign power or its agent.42 The definition of a “foreign power” included “groups engaged in
international terrorism or activities in preparation therefor.”43 Individuals involved in international
terrorism for or on behalf of those groups were considered “agents of a foreign power.”44 In the
weeks leading up to the attacks, it appears that the FBI encountered an actual or perceived
insufficiency of information demonstrating probable cause to believe that Moussaoui was acting
for or on behalf of an identifiable group engaged in international terrorism. 45
Legislative Responses
Following these revelations, a number of legislative proposals were put forth to amend the
definition of “agents of a foreign power” under FISA so that individuals engaged in international
terrorism need not be linked to a specific foreign power.46 One such amendment was ultimately
enacted with passage of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA).47
Section 6001 of the legislation, known as the “lone wolf” provision, provides that persons, other
than citizens or permanent residents of the U.S., who are engaged in international terrorism are
presumptively considered to be agents of a foreign power. 48 The provision obviates any need to
provide an evidentiary connection between an individual and a foreign government or terrorist
group.
38
NAT’L COMM. ON TERRORIST ATTACKS UPON THE U.S., The 9/11 Commission Report, at 273-274 [hereinafter “9/11
Comm’n Rep.”]
39
Id. at 273. Moussaoui, a French national, was present in the United States with an expired visa.
40
Id. at 273-274.
41
Id. at 274. Based upon this conclusion, the FBI “declined to submit a FISA application” to the FISC.
42
50 U.S.C. § 1821-1824 (2001).
43
50 U.S.C. § 1801(a)(4) (2001). At the time, foreign powers also included foreign governments, entities controlled by
those governments, and factions of foreign nations and foreign-based political organizations that are not substantially
composed of United States persons. Id. at § (a)(1-6)
44
50 U.S.C. § 1801(b)(2)(C) (2001).
45
See 9/11 Comm’n Rep. at 274. It is unclear whether a search of Moussaoui’s laptop before September 11, 2001,
would have provided enough information to prevent or minimize those attacks.
46
S. 2586, 107th Cong. (2002); S. 113, 108th Cong. (2003).
47
S. 2845, 108th Cong. (2004) (enacted).
48
P.L. 108-458, § 6001(a), codified at 50 U.S.C. § 1801(b)(1)(3) (2008).
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Critics of the “lone wolf” provision argued that the laptop in the Moussaoui case could have been
lawfully searched under FISA or the laws governing generic criminal warrants.49 Critics also
expressed concern that the simplified “lone wolf” standard would lead to “FISA serving as a
substitute for some of our most important criminal laws.”50
Proponents of the provision noted that the increased self-organization among terror networks has
made proving connections to identifiable groups more difficult. Thus, a “lone wolf” provision is
necessary to combat terrorists who use a modern organizational structure or who are selfradicalized.51
Roving Wiretaps
Section 206 of the USA PATRIOT Act amended FISA to permit multipoint, or “roving,” wiretaps
by adding flexibility to the degree of specificity with which the location or facility subject to
electronic surveillance under FISA must be identified.52 It is often colloquially described as
allowing FISA wiretaps to target persons rather than places.
Background
Prior to enactment of § 206, the scope of electronic surveillance authorized by a court order was
limited in two ways. First, the location or facility that was the subject of surveillance had to be
identified. 53 Second, only identifiable third parties could be directed by the government to
facilitate electronic surveillance.54 Conducting electronic surveillance frequently requires the
assistance of telecommunications providers, landlords, or other third parties. Furthermore,
telecommunications providers are generally prohibited from assisting in electronic surveillance
for foreign intelligence purposes, except as authorized by FISA.55 In cases where the location or
facility was unknown, the identity of the person needed to assist the government could not be
specified in the order. Therefore, limiting the class of persons that could be directed to assist the
government by a FISA court order effectively limited the reach to known and identifiable
locations.
Section 206 and “Other Persons”
Section 206 of the USA PATRIOT Act amended § 105(c)(2)(B) of FISA. It authorizes FISA
orders to direct “other persons” to assist with electronic surveillance if “the Court finds, based on
specific facts provided in the application, that the actions of the target ... may have the effect of
thwarting the identification of a specified person.”48 In a technical amendment later that year, the
requirement that the order specify the location of the surveillance was also changed so that this
requirement only applies if the facilities or places are known.49 These modifications have the
effect of permitting FISA orders to direct unspecified individuals to assist the government in
performing electronic surveillance, thus permitting court orders to authorize surveillance of
places or locations that are unknown at the time the order is issued.
43
49
See S.Rept. 108-40 at 33-41 (additional views of Senator Leahy and Senator Feingold on a similar “lone wolf”
provision in S. 113).
50
Id. at 73 (additional views of Senator Feingold).
51
S.Rept. 108-40 at 4-6. But see Letter from the U.S. Department of Justice to Hon. Patrick J. Leahy, at 5 (Sept. 14,
2009) (acknowledging that the amendment has not yet been relied upon in an investigation).
4452
P.L. 107-56, § 206, codified at 50 U.S.C. § 1805(c)(2)(B) (2008).
4553
See 50 U.S.C. § 1805(c)(1)(B) (2001) (requiring FISA warrants to specify the “nature and location of each of the
facilities or places at which electronic surveillance will be directed”).
4654
See 50 U.S.C. § 1805(c)(2)(B) (2001).
4755
See 50 U.S.C. §§ 1809(a) and 1810 (2008).
48
P.L. 107-56, § 206, codified at 50 U.S.C. § 1805(c)(2)(B) (2008).
49
P.L. 107-108, § 314(a)(2)(A).
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thwarting the identification of a specified person.”56 In a technical amendment later that year, the
requirement that the order specify the location of the surveillance was also changed so that this
requirement only applies if the facilities or places are known.57 These modifications have the
effect of permitting FISA orders to direct unspecified individuals to assist the government in
performing electronic surveillance, thus permitting court orders to authorize surveillance of
places or locations that are unknown at the time the order is issued.
This section was further amended by the USA PATRIOT Improvement and Reauthorization Act
of 2005 to require that the FISC be notified within 10 days after “surveillance begins to be
directed at any new facility or place.”5058 In addition, the FISC must be told the nature and location
of each new facility or place, the facts and circumstances relied upon to justify the new
surveillance, a statement of any proposed minimization procedures (i.e., rules to limit the
government’s acquisition and dissemination of information involving United States citizens) that
differ from those contained in the original application or order, and the total number of facilities
or places subject to surveillance under the authority of the present order.5159
Particularity Requirement of the Fourth Amendment
The Fourth Amendment imposes specific requirements upon the issuance of warrants authorizing
searches of “persons, houses, papers, and effects.”5260 One of the requirements, referred to as the
particularity requirement, states that warrants shall “particularly describ[e] the place to be
searched.”5361 Under FISA, roving wiretaps are not required to identify the location that may be
subject to surveillance. Therefore, some may argue that roving wiretaps do not comport with the
particularity requirement of the Fourth Amendment. It is not clear that the Fourth Amendment
would require that searches for foreign intelligence information be supported by a warrant,5462 but
prior legal challenges to similar provisions of Title III of the Omnibus Crime Control and Safe
Streets Act may be instructive in the event that challenges to § 206 are brought alleging violations
of the particularity requirement of the Fourth Amendment.
Similar roving wiretaps have been permitted under Title III since 1986 in cases where the target
of the surveillance takes actions to thwart such surveillance.5563 The procedures under Title III are
similar to those currently used under FISA, but two significant differences exist. First, a roving
wiretap under Title III must definitively identify the target of the surveillance.5664 Fixed wiretaps
under Title III and all wiretaps under FISA need only identify the target if the target’s identity is
known. FISA permits roving wiretaps via court orders that only provide a specific description of
the target.5765 Second, Title III requires that the surveilled individuals be notified of the
surveillance, generally 90 days after surveillance terminates. 58 FISA contains no similar
notification provision.
In United States v. Petti, the U.S. Court of Appeals for the Ninth Circuit was presented with a
challenge to a roving wiretap under Title III alleging that roving wiretaps do not satisfy the
particularity requirement of the Fourth Amendment.59 The court initially noted that
5056
57
P.L. 107-56, § 206, codified at 50 U.S.C. § 1805(c)(2)(B) (2008).
P.L. 107-108, § 314(a)(2)(A).
58
P.L. 109-177, § 108(b)(4), codified at 50 U.S.C. § 1805(c)(3) (2008). This deadline for notification can be extended
to up to 60 days by the FISC upon a showing of good cause.
5159
Id.
5260
U.S. CONST. amend. IV. The Supreme Court has held that electronic surveillance of private conversations qualifies as
a search for purposes of the Fourth Amendment. See Katz v. United States, 389 U.S. 347 (1967).
5361
Id.
5462
See supra footnotes 16-17 and accompanying text.
5563
Electronic Communications Privacy Act of 1986, P.L. 99-508, § 106(d)(3), codified at 18 U.S.C. § 2518(11) (2008).
5664
18 U.S.C. § 2518(11)(b)(ii) (2008).
5765
See 50 U.S.C. §§ 1804(a)(3), 1805(c)(1)(A) (2008).
58
18 U.S.C. § 2518(8)(d) (2008). This notification may be postponed upon an ex parte showing of good cause.
59
973 F.2d 1441 (9th Cir. 1992).
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surveillance, generally 90 days after surveillance terminates. 66 FISA contains no similar
notification provision.
In United States v. Petti, the U.S. Court of Appeals for the Ninth Circuit was presented with a
challenge to a roving wiretap under Title III alleging that roving wiretaps do not satisfy the
particularity requirement of the Fourth Amendment.67 The court initially noted that
the test for determining the sufficiency of the warrant description is whether the place to be
searched is described with sufficient particularity to enable the executing officer to locate
and identify the premises with reasonable effort, and whether there is any reasonable
probability that another premise might be mistakenly searched.6068
Applying this test, the Ninth Circuit held that roving wiretaps under Title III satisfied the
particularity clause of the Fourth Amendment. 6169 The court in this case relied upon the fact that
targets of roving wiretaps had to be identified and that they were only available where the target’s
actions indicated an intent to thwart electronic surveillance. 6270
Critics of roving wiretaps under FISA may argue that § 206 increases the likelihood that innocent
conversations will be the subject of electronic surveillance. They may further argue that the threat
of these accidental searches of innocent persons is precisely the type of injury sought to be
prevented by the particularity clause of the Fourth Amendment. Such a threat may be particularly
acute in this case given the fact that there is no requirement under FISA that the target of a roving
wiretap be identified, although the target must be specifically described.6371
Access to Business Records Under FISA
Section 215 of the USA PATRIOT Act broadened federal officials’ access to materials in
investigations to obtain foreign intelligence information not concerning a United States person or
to protect against international terrorism or clandestine intelligence activities.6472 It both enlarged
the scope of materials that may be sought and lowered the standard for a court to issue an order
compelling their production. In all investigations, the production of items pertaining to a U.S.
person may not be compelled solely upon the basis of activities protected by the First Amendment
to the Constitution.65
Background
In 1976, the Supreme Court held that an individual’s bank account records did not fall within the
protection of the Fourth Amendment’s prohibition on unreasonable searches and seizures. 66
Subsequently, Congress passed laws protecting various types of transactional information, but
built in exceptions to provide some access to statutorily protected records sought for counter
intelligence purposes. 67 These exceptions comprise the authority for national security letters,
60
61
73
66
18 U.S.C. § 2518(8)(d) (2008). This notification may be postponed upon an ex parte showing of good cause.
973 F.2d 1441 (9th Cir. 1992).
68
Id. at 1444 (internal quotation marks omitted).
69
Id. at 1445.
62
67
70
Id. See also United States v. Bianco, 998 F.2d 1112, 1124 (2nd Cir. 1993) (similarly holding that a provision
authorizing roving bugs under Title III was constitutional).
6371
50 U.S.C. §§ 1804(a)(3), 1805(c)(1)(B) (2008).
64
72
The gathering of intelligence information not concerning a U.S. person was authorized by a technical amendment to
§ 215 passed a few months after its enactment. See P.L. 107-56, § 215, amended by P.L. 107-108, § 314, codified at 50
U.S.C. § 1861 (2008).
65
50 U.S.C. § 1861(a) (2008).
66
U.S. v. Miller, 425 U.S. 435 (1976). The rationale was that persons have a diminished expectation of privacy when
information sought has already been revealed to a third party.
67
See CRS Report RL33320, National Security Letters in Foreign Intelligence Investigations: Legal Background and
Recent Amendments, by Charles Doyle, at 3-4.
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73
50 U.S.C. § 1861(a) (2008).
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Background
In 1976, the Supreme Court held that an individual’s bank account records did not fall within the
protection of the Fourth Amendment’s prohibition on unreasonable searches and seizures. 74
Subsequently, Congress passed laws protecting various types of transactional information, but
built in exceptions to provide some access to statutorily protected records sought for counter
intelligence purposes. 75 These exceptions comprise the authority for national security letters,
discussed supra, which are relied upon to compel the production of records in limited
circumstances.
In 1998, Congress first amended FISA to authorize the production of documents not available
through national security letters. Four types of documents initially could be sought in foreign
intelligence or international terrorism investigations, including records from common carriers,
public accommodation facilities, storage facilities, and vehicle rental facilities. 6876 Applications for
orders under this section had to be made by FBI agents with a rank of Assistant Special Agent in
Charge or higher and investigations could not be conducted solely on the basis of activities
protected by the First Amendment.6977 Under these procedures the FISC would issue an order if,
inter alia, the application contained “specific and articulable facts giving reason to believe that
the person to whom the records pertain is a foreign power or an agent of a foreign power.”7078
Recipients of an order under this section were required to comply with it, and were also
prohibited from disclosing to others that an order had been issued.7179
Expansion of the Scope of Documents Subject to FISA
As mentioned, § 215 of the USA PATRIOT Act made several changes to the procedures under
FISA for obtaining business records.7280 Among these was an expansion of the scope of records that
are subject to compulsory production. Prior to the USA PATRIOT Act amendment, only records
from the four categories of businesses mentioned above could be obtained. In contrast, § 215
authorizes the production of “any tangible things.”7381
This expanded scope drew strong opposition from the library community, so much so that § 215
came to be known as the “library provision” despite the fact that the original text of the provision
did not mention libraries.7482 Opposition from this group appears to have been primarily based upon
the chilling effect such access could have on the exercise of First Amendment rights and
purported intrusions into areas protected by the Fourth Amendment.75 Opposition from library
advocates may have also been a residual response to prior attempts by the FBI to gather foreign
intelligence information from library staff during the Cold War.76
In response to these concerns, a library-specific amendment was made to the § 215 procedures by
the USA PATRIOT Improvement and Reauthorization Act of 2005. Under this amendment, if the
records sought are “library circulation records, library patron lists, book sales records, book
68
50 U.S.C. § 1862(a) (2001).
50 U.S.C. § 1862(a)(1) (2001).
70
50 U.S.C. § 1862(b)(2)(B) (2001).
71
50 U.S.C. § 1862(d)(1)-(2) (2001).
72
P.L. 107-56, § 215 codified at 50 U.S.C. § 1862(a)-(b) (2008).
73
50 U.S.C. § 1861(a)(1) (2008).
7483 Opposition from library
74
U.S. v. Miller, 425 U.S. 435 (1976). The rationale was that persons have a diminished expectation of privacy when
information sought has already been revealed to a third party.
75
See CRS Report RL33320, National Security Letters in Foreign Intelligence Investigations: Legal Background and
Recent Amendments, by Charles Doyle, at 3-4.
76
50 U.S.C. § 1862(a) (2001).
77
50 U.S.C. § 1862(a)(1) (2001).
78
50 U.S.C. § 1862(b)(2)(B) (2001).
79
50 U.S.C. § 1862(d)(1)-(2) (2001).
80
P.L. 107-56, § 215 codified at 50 U.S.C. § 1862(a)-(b) (2008).
81
50 U.S.C. § 1861(a)(1) (2008).
82
E.g. Richard B. Schmitt, House Weakens Patriot Act’s ‘Library Provision’, L.A. TIMES, June 16, 2005, at A-1.
69
75
83
See, e.g., AMERICAN LIBRARY ASSOCIATION, Resolution on the USA Patriot Act and Related Measures That Infringe
on the Rights of Library Users, Jan. 29, 2003, available at http://www.ala.org; Judith King, Director ALA Office for
Intellectual Freedom, Letter to the Editor, FBI ‘Fishing Expeditions’ Librarians’ Biggest Worry, WALL ST. J., May 24,
2004, at A15; David Mehegan, Reading Over Your Shoulder: The Push Is On To Shelve Part Of The Patriot Act,
BOSTON GLOBE, March 9, 2004, at E5.
76
See Ulrika Ekman Ault, The FBI’s Library Awareness Program: Is Big Brother Reading Over Your Shoulder?, 65
N.Y.U. L. REV. 1532 (1990).
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(continued...)
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advocates may have also been a residual response to prior attempts by the FBI to gather foreign
intelligence information from library staff during the Cold War.84
In response to these concerns, a library-specific amendment was made to the § 215 procedures by
the USA PATRIOT Improvement and Reauthorization Act of 2005. Under this amendment, if the
records sought are “library circulation records, library patron lists, book sales records, book
customer lists, firearms sales records, tax return records, educational records, or medical records
containing information that would identify a person,” the application must be approved by one of
three high-ranking FBI officers.7785
Changes to the Standard of Review
Section 215 of the USA PATRIOT Act also modified the standard for the FISC to issue an order
compelling the production of documents. Prior to enactment of § 215, an applicant had to have
“specific and articulable facts giving reason to believe that the person to whom the records
pertain is a foreign power or an agent of a foreign power.”7886 In contrast, under § 215 as originally
enacted, the applicant only needed to “specify that the records concerned [were] sought for a
[foreign intelligence, international terrorism, or espionage investigation.]”7987
In 2005, Congress further amended FISA procedures for obtaining business records. The
applicable standard was changed to require “a statement of facts showing that there are
reasonable grounds to believe that the tangible things sought are relevant to a [foreign
intelligence, international terrorism, or espionage investigation.]”8088 Under this standard, records
are presumptively relevant if they pertain to
•
a foreign power or an agent of a foreign power;
•
the activities of a suspected agent of a foreign power who is the subject of such
authorized investigation; or
•
an individual in contact with, or known to, a suspected agent of a foreign power
who is the subject of such authorized investigation.81
Nondisclosure and Judicial Review
Orders issued under § 215, as amended, are accompanied by nondisclosure orders prohibiting the
recipients from disclosing that the FBI has sought or obtained any tangible things pursuant to a
FISA order. However, the recipient may discuss the order with other persons as necessary to
comply with the order, with an attorney to obtain legal advice or assistance, or with other persons
as permitted by the FBI.82 The recipient must identify persons to whom disclosure has been made,
or is intended to be made, if the FBI requests, except that attorneys with whom the recipient has
consulted do not need to be identified.83
The USA PATRIOT Improvement and Reauthorization Act of 2005 provided procedures by
which a recipient of a § 215 order may challenge orders compelling the production of business
77
89
(...continued)
Intellectual Freedom, Letter to the Editor, FBI ‘Fishing Expeditions’ Librarians’ Biggest Worry, WALL ST. J., May 24,
2004, at A15; David Mehegan, Reading Over Your Shoulder: The Push Is On To Shelve Part Of The Patriot Act,
BOSTON GLOBE, March 9, 2004, at E5.
84
See Ulrika Ekman Ault, The FBI’s Library Awareness Program: Is Big Brother Reading Over Your Shoulder?, 65
N.Y.U. L. REV. 1532 (1990).
85
Applications for these records could be made only by the Director of the Federal Bureau of Investigation, the Deputy
Director of the Federal Bureau of Investigation, or the Executive Assistant Director for National Security. This
authority cannot be further delegated. 50 U.S.C. § 1861(a)(3) (2008).
7886
50 U.S.C. § 1862(b)(2)(B) (2001).
7987
P.L. 107-56, § 215.
8088
USA PATRIOT Improvement and Reauthorization Act of 2005, P.L. 109-177, § 106(b).
8189
50 U.S.C. § 1861(b)(2)(A).
82
50 U.S.C. § 1861(d)(1) (2008).
83
50 U.S.C. § 1861(d)(2)(C) (2008).
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Nondisclosure and Judicial Review
Orders issued under § 215, as amended, are accompanied by nondisclosure orders prohibiting the
recipients from disclosing that the FBI has sought or obtained any tangible things pursuant to a
FISA order. However, the recipient may discuss the order with other persons as necessary to
comply with the order, with an attorney to obtain legal advice or assistance, or with other persons
as permitted by the FBI.90 The recipient must identify persons to whom disclosure has been made,
or is intended to be made, if the FBI requests, except that attorneys with whom the recipient has
consulted do not need to be identified.91
The USA PATRIOT Improvement and Reauthorization Act of 2005 provided procedures by
which a recipient of a § 215 order may challenge orders compelling the production of business
records.92 Once a petition for review is submitted by a recipient, a FISC judge must determine
whether the petition is frivolous within 72 hours.8593 If the petition is frivolous, it must be denied
and the order affirmed. 8694 The order may be modified or set aside if it does not meet the
requirements of FISA or is otherwise unlawful.8795 Appeals by either party may be heard by the
Foreign Intelligence Court of Review and the Supreme Court.8896
Judicial review of nondisclosure orders operates under a similar procedure,8997 but such orders are
not reviewable for one year after they are initially issued.9098 If the petition is not determined to be
frivolous, a nondisclosure order may be set aside if there is
no reason to believe that disclosure may endanger the national security of the United States,
interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere
with diplomatic relations, or endanger the life or physical safety of any person.9199
A petition to set aside a nondisclosure order may be defeated if the government certifies that
disclosure would endanger the national security or interfere with diplomatic relations.92100 Absent
any finding of bad faith, such a certification is to be treated as conclusive by the FISC. If a
petition is denied, either due to a certification described above, frivolity, or otherwise, the
petitioner may not challenge the nondisclosure order for another year.93101 Appeals by either party
may be heard by the Foreign Intelligence Court of Review and the Supreme Court.94
DOJ OIG Report
The USA PATRIOT Improvement and Reauthorization Act of 2005 directed the Inspector General
of the Department of Justice (OIG) to audit the FBI’s use of § 215 authority and report its
findings to Congress.95 An unclassified version of the OIG’s audit for calendar year 2006 was
released in March of 2008.96 According to the report, the number of requests for § 215 orders
submitted to the FISC in 2006 totaled 47, although more than half were requests to renew or
extend previous orders. The FISC granted all 47 of the requests submitted that year. However, six
additional requests were processed but withdrawn before formal consideration by the FISC. The
84
102
90
50 U.S.C. § 1861(d)(1) (2008).
50 U.S.C. § 1861(d)(2)(C) (2008).
92
50 U.S.C. § 1861(f)(2)(A)(i) (2008).
93
50 U.S.C. § 1861(f)(2)(A)(ii) (2008).
8694
Id.
8795
50 U.S.C. § 1861(f)(2)(B) (2008).
8896
50 U.S.C. § 1861(f)(3) (2008).
8997
Judicial review of nondisclosure orders was added by P.L. 109-178, § 3.
9098
50 U.S.C. § 1861(f)(2)(A)(i) (2008).
9199
50 U.S.C. § 1861(f)(2)(C)(i) (2008).
92100
Such certifications must be made by the Attorney General, Deputy Attorney General, an Assistant Attorney General,
or the Director of the Federal Bureau of Investigation. 50 U.S.C. § 1861(f)(2)(C)(ii) (2008).
93101
50 U.S.C. § 1861(f)(2)(C)(iii) (2008).
94
50 U.S.C. § 1861(f)(3) (2008).
95
P.L. 109-177, § 106A.
96
OFFICE OF THE INSPECTOR GENERAL, DEP’T OF JUSTICE, A Review of the FBI’s Use of Section 215 Orders for Business
Records in 2006, March 2008, available at http://www.usdoj.gov/oig/special/s0803a/final.pdf. For more recent statistics
regarding the use of both § 215 requests and § 206 roving wiretap authority, see Reauthorizing the USA PATRIOT Act:
Ensuring Liberty and Security: Hearing Before the S. Judiciary Comm., 111th Cong. (Sept. 23, 2009) (written
testimony of David Kris, Assistant Attorney General, U.S. Department of Justice).
85
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102
50 U.S.C. § 1861(f)(3) (2008).
91
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DOJ OIG Report
The USA PATRIOT Improvement and Reauthorization Act of 2005 directed the Inspector General
of the Department of Justice (OIG) to audit the FBI’s use of § 215 authority and report its
findings to Congress.103 An unclassified version of the OIG’s audit for calendar year 2006 was
released in March of 2008.104 According to the report, the number of requests for § 215 orders
submitted to the FISC in 2006 totaled 47, although more than half were requests to renew or
extend previous orders. The FISC granted all 47 of the requests submitted that year. However, six
additional requests were processed but withdrawn before formal consideration by the FISC. The
report indicates that the FBI withdrew at least one such request because the FISC had indicated
that it would not sign the order due to First Amendment concerns. 97105
The report identified several issues related to the implementation of § 215 for Congress’
consideration. For example, it noted that no settled procedure governs situations in which
providers, in response to a § 215 request for documents, submit information that is outside of the
scope of the § 215 order. It also stated that in at least one instance, the FBI had issued a national
security letter to obtain the same information that had been the subject of a § 215 request that was
withdrawn due to First Amendment concerns.98106 It also concluded that the interim minimization
procedures, promulgated by the Justice Department to fulfill a requirement that it implement rules
to limit the government’s acquisition and dissemination of information involving United States
citizens, were inadequate.99107
Effect of Sunset Provisions
As mentioned, the expiring FISA amendments were originally scheduled to sunset on December
31, 2005,100108 but the sunset dates have been extended to May 27, 2011.101109 If that date passed
without reauthorization, the amended FISA authorities would read as they did before the
enactment of the amendments. For example, regarding roving wiretaps, § 105(c)(2) of FISA
would read as it did on October 25, 2001,102110 eliminating the authority for FISA court orders to
direct other unspecified persons to assist with electronic surveillance. 103 Likewise, regarding
FISA orders for the production of documents, §§ 501 and 502 of FISA would read as they did on
October 25, 2001,104 restricting the types of business records that are subject to FISA and
reinstating the requirement for “specific and articulable facts giving reason to believe that the
person to whom the records pertain is a foreign power or an agent of a foreign power.”105
However, a grandfather clause applies to each of the three provisions. 106 The grandfather clauses
authorize the continued effect of the amendments with respect to investigations that began, or
97
103
P.L. 109-177, § 106A.
OFFICE OF THE INSPECTOR GENERAL, DEP’T OF JUSTICE, A Review of the FBI’s Use of Section 215 Orders for
Business Records in 2006, March 2008, available at http://www.usdoj.gov/oig/special/s0803a/final.pdf. For more
recent statistics regarding the use of both § 215 requests and § 206 roving wiretap authority, see Reauthorizing the USA
PATRIOT Act: Ensuring Liberty and Security: Hearing Before the S. Judiciary Comm., 111th Cong. (Sept. 23, 2009)
(written testimony of David Kris, Assistant Attorney General, U.S. Department of Justice).
105
Id. at 33. In indicating that it would deny the application, the FISC appears to have decided that “the facts were too
‘thin’ and that this request implicated the target’s First Amendment rights.” Id. at 68.
98106
Id. at 5.
99107
Id. at 6.
100108
P.L. 108-458, § 6001(b); P.L. 107-56, § 224(a).
101109
P.L. 109-177, § 103; P.L. 111-118, § 1004; P.L. 111-141; P.L. 112-3.
102110
P.L. 109-177, § 102(b). The relevant section of FISA will then provide
that, upon the request of the applicant, a specified communication or other common carrier,
landlord, custodian, or other specified person furnish the applicant forthwith all information,
facilities, or technical assistance necessary to accomplish the electronic surveillance in such a
manner as will protect its secrecy and produce a minimum of interference with the services that
such carrier, landlord, custodian, or other person is providing that target of electronic surveillance.
50 U.S.C. § 1805(c)(2) (2001).
103
The sunset will not repeal the provision of FISA that permits a FISA warrant to fail to identify facilities or places
that will be subject to electronic surveillance. However, the authority for most new roving wiretaps may be effectively
repealed because new orders may not direct unspecified persons to assist with surveillance.
104
P.L. 109-177, § 102(b). Access will then be limited to records held by common carriers, public accommodation
facilities, physical storage facilities, and vehicle rental facilities. 50 U.S.C. § 1862(c)(2) (2001).
105
50 U.S.C. § 1862(b)(2)(B) (2001).
106
The 2005 reauthorization act and other measures did not affect the grandfather provisions.
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potential offenses that took place, before the provision’s sunset date.107 Thus, for example, if a
non-U.S. person were engaged in international terrorism on the sunset date of May 27, 2011, he
104
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direct other unspecified persons to assist with electronic surveillance. 111 Likewise, regarding
FISA orders for the production of documents, §§ 501 and 502 of FISA would read as they did on
October 25, 2001,112 restricting the types of business records that are subject to FISA and
reinstating the requirement for “specific and articulable facts giving reason to believe that the
person to whom the records pertain is a foreign power or an agent of a foreign power.”113
However, a grandfather clause applies to each of the three provisions. 114 The grandfather clauses
authorize the continued effect of the amendments with respect to investigations that began, or
potential offenses that took place, before the provision’s sunset date.115 Thus, for example, if a
non-U.S. person were engaged in international terrorism before the sunset date of May 27, 2011,
he would still be considered a “lone wolf” for FISA court orders sought after the provision has
expired. Similarly, if an individual is engaged in international terrorism onbefore that date, he may be
be the target of a roving wiretap under FISA even after authority for new roving wiretaps has
expired.
Legislative Proposals in the 112th Congress
Delay of Sunsets
Several bills introduced in the 112th Congress would extend all three of the expiring FISA
amendments. The current sunset date is the result of a three-month extension contained in H.R.
514, which was signed into law on February 25, 2011.108 H.R. 67 would postpone the sunset of all
three provisions until February 29, 2012.
Both S. 149 and S. 289 would extend all three provisions until December 31, 2013, and would
also extend the sunset of Title VII of FISA, regarding surveillance of persons outside of the
United States, until December 31, 2013. Currently, Title VII of FISA is scheduled to sunset on
December 31, 2012.
S. 193 and S. 290 would also extend all three provisions until December 31, 2013, and would
additionally impose the same sunset date on national security letter authorities, which are
currently not scheduled to expire.
S. 291 would repeal the sunsets of the “lone wolf” provision, § 206 roving wiretaps, and § 215
orders making these authorities permanent.
Substantive Amendments
In addition to extending the sunset of the three expiring provisions, S. 193 and S. 290 would
change the standard for issuing a § 215 order to eliminate the presumption that the requested
records are relevant to a national security investigation or clandestine intelligence activities if
beyond May 27, 2011. In the House of Representatives, H.R. 67 (a bill to extend
expiring provisions of the USA PATRIOT Improvement and Reauthorization Act of 2005 and
Intelligence Reform and Terrorism Prevention Act of 2004) would postpone the sunset of all three
provisions until February 29, 2012. The FISA Sunsets Reauthorization Act (H.R. 1800), would
extend the roving wiretaps and Section 215 order authorities until December 31, 2017, and would
make the “lone wolf” provision permanent.
In the Senate, the PATRIOT Sunsets Extension Act of 2011 (S. 1022) would extend the three
expiring provisions until December 31, 2014. The FISA Sunsets Extension Act (S. 149)116 would
extend all three provisions until December 31, 2013, but would also extend the sunset of Title VII
of FISA,117 regarding surveillance of persons outside of the United States, until December 31,
2013. Currently, Title VII of FISA is scheduled to sunset on December 31, 2012. The USA
PATRIOT Act Sunset Extension Act (S. 193), as reported,118 would also extend all three
111
The sunset will not repeal the provision of FISA that permits a FISA warrant to fail to identify facilities or places
that will be subject to electronic surveillance. However, the authority for most new roving wiretaps may be effectively
repealed because new orders may not direct unspecified persons to assist with surveillance.
112
P.L. 109-177, § 102(b). Access will then be limited to records held by common carriers, public accommodation
facilities, physical storage facilities, and vehicle rental facilities. 50 U.S.C. § 1862(c)(2) (2001).
113
50 U.S.C. § 1862(b)(2)(B) (2001).
114
The 2005 reauthorization act and other measures did not affect the grandfather provisions.
115
P.L. 107-56, § 224(b); P.L. 108-458, § 6001(b) (referencing PATRIOT Act sunset provision in P.L. 107-56, §
224(b)).
116
S. 289 is identical to S. 149.
117
Title VII of FISA, added by the FISA Amendments Act of 2008, is discussed supra at “Electronic Surveillance
Targeting Persons Who Are Overseas.”
118
S. 290 is identical to S. 193 as introduced, but does not include the amendments made by the Senate Judiciary
Committee.
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provisions and Title VII of FISA until December 31, 2013. It would additionally impose the same
sunset date on national security letter authorities, which are currently not scheduled to expire. The
USA PATRIOT Reauthorization Act (S. 291) would repeal the sunsets of the “lone wolf”
provision, § 206 roving wiretaps, and § 215 orders making these authorities permanent.
Substantive Amendments
In addition to creating a uniform sunset date of December 31, 2013, S. 193 would make a number
of substantive changes to existing authorities. It would change the standard for issuing a § 215
order to eliminate the presumption that the requested records are relevant to a national security
investigation or clandestine intelligence activities if they pertain to
•
a foreign power or an agent of a foreign power;
•
the activities of a suspected agent of a foreign power who is the subject of such
authorized investigation; or
•
an individual in contact with, or known to, a suspected agent of a foreign power
who is the subject of such authorized investigation.109
107
P.L. 107-56, § 224(b); P.L. 108-458, § 6001(b) (referencing PATRIOT Act sunset provision in P.L. 107-56, §
224(b)).
108
P.L. 112-3.
109
See supra at footnote 81 and accompanying text.
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If the records sought to include the circulation records or patron lists of a library, as defined under
the Library Services and Technology Act, S. 193 and S. 290119
If the records sought are bookseller records or library records containing personally identifiable
information, S. 193 would require an application for a §
215 order to contain facts showing
reasonable grounds to believe that the records pertain to an
agent of a foreign power, the activities
of a suspected agent of a foreign power, or an individual in
contact with or known to a suspected
agent of a foreign power. Section 215 applications would
also have to include a statement of
proposed minimization procedures and would give the FISA
Court of Review authority to ensure
compliance with those minimization procedures.
S. 193 and S. 290 would also modify the process for judicial review of non-disclosure orders
imposed on
recipients of § 215 orders by (1) allowing petitions for review to be brought
immediately, rather
than after one year; and (2) by no longer mandating that courts conclusively
accept good-faith
certifications by the Attorney General, or his designee, that disclosure would
endanger national
security or interfere with diplomatic relations.
In addition to the modifications to § 215 orders for business records or other tangible things, S.
193 and S. 290 would make a number of changes to other authorities including
119
•
requiring applications for pen registers or trap and trace orders under FISA to
include a statement of facts and circumstances relied upon by the applicant
(rather than the certification currently required), a statement of whether
minimization procedures are being proposed, and a description of those
procedures;
•
modifying judicial review of non-disclosure orders imposed on recipients of
national security letters;
•
requiring national security letter certifications be supported by a written
statement (which would be retained by the FBI or other investigating agency)
providing specific facts showing that reasonable grounds exist to believe that
See supra at footnote 89 and accompanying text.
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information sought is relevant to an authorized investigation to protect against
international terrorism or clandestine intelligence activities;
•
increasing Congressional reporting of use of national security letter and FISA
authorities;
•
requiring audits by the DOJ Inspector General on the use of § 215 orders, orders
for pen registers or trap and trace devices, and national security letters;
•
requiring delayed notification of an executed search warrant within 7 days
instead of 30 days;
•
requiring the Attorney General to periodically review the minimization
procedures in use for information collected pursuant to a national security letter;
•
requiring orders for roving wiretaps to describe the target with particularity;
•
making certain terrorism related crimes eligible for the death penalty; and
•
rescinding $5,000,000 from the unobligated balances in the Department of
Justice Asset Forfeiture Fund.
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Author Contact Information
Edward C. Liu
Legislative Attorney
eliu@crs.loc.gov, 7-9166
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