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Amendments to the Foreign Intelligence Surveillance Act (FISA) Expiring on December 15, 2019

Changes from May 27, 2011 to April 11, 2016

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Amendments to the Foreign Intelligence Surveillance Act (FISA) Set to Expire May 27, 2011 Edward C. Liu Legislative Attorney May 13, 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 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. 149 and S. 289 would extend the three expiring provisions until December 13, 2013, and would also extend Title VII of FISA, which governs the electronic surveillance of persons outside the United States, until the same date. S. 193, 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 § 215 orders, certain other FISA provisions, and national security letters. S. 291 would make all three provisions permanent. Congressional Research Service 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........................................................................................................6 “Lone Wolf” Terrorists ..........................................................................................................6 Historical Context ...........................................................................................................7 Legislative Responses .....................................................................................................7 Roving Wiretaps ...................................................................................................................8 Background ....................................................................................................................8 Section 206 and “Other Persons”.....................................................................................8 Particularity Requirement of the Fourth Amendment .......................................................9 Access to Business Records Under FISA............................................................................. 10 Background .................................................................................................................. 11 Expansion of the Scope of Documents Subject to FISA................................................. 11 Changes to the Standard of Review ............................................................................... 12 Nondisclosure and Judicial Review ............................................................................... 13 DOJ OIG Report ........................................................................................................... 14 Effect of Sunset Provisions........................................................................................................ 14 Legislative Proposals in the 112th Congress ............................................................................... 15 Delay of Sunsets ................................................................................................................. 15 Substantive Amendments .................................................................................................... 16 Contacts Author Contact Information ...................................................................................................... 17 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). Congressional Research Service 1 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.”). Congressional Research Service 2 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, 551 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 912 (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). Congressional Research Service 3 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 Congressional Research Service 4 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. Electronic 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). Congressional Research Service 5 Amendments to the Foreign Intelligence Surveillance Act Set to Expire May 27, 2011 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 Congressional Research Service 6 Amendments to the Foreign Intelligence Surveillance Act Set to Expire May 27, 2011 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). Congressional Research Service 7 Amendments to the Foreign Intelligence Surveillance Act Set to Expire May 27, 2011 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 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). 52 P.L. 107-56, § 206, codified at 50 U.S.C. § 1805(c)(2)(B) (2008). 53 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”). 54 See 50 U.S.C. § 1805(c)(2)(B) (2001). 55 See 50 U.S.C. §§ 1809(a) and 1810 (2008). Congressional Research Service 8 Amendments to the Foreign Intelligence Surveillance Act Set to Expire May 27, 2011 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.”58 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.59 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.”60 One of the requirements, referred to as the particularity requirement, states that warrants shall “particularly describ[e] the place to be searched.”61 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,62 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.63 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.64 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.65 Second, Title III requires that the surveilled individuals be notified of the 56 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. 59 Id. 60 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). 61 Id. 62 See supra footnotes 16-17 and accompanying text. 63 Electronic Communications Privacy Act of 1986, P.L. 99-508, § 106(d)(3), codified at 18 U.S.C. § 2518(11) (2008). 64 18 U.S.C. § 2518(11)(b)(ii) (2008). 65 See 50 U.S.C. §§ 1804(a)(3), 1805(c)(1)(A) (2008). Congressional Research Service 9 Amendments to the Foreign Intelligence Surveillance Act Set to Expire May 27, 2011 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.68 Applying this test, the Ninth Circuit held that roving wiretaps under Title III satisfied the particularity clause of the Fourth Amendment. 69 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. 70 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.71 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.72 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.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. 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). 71 50 U.S.C. §§ 1804(a)(3), 1805(c)(1)(B) (2008). 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). 73 50 U.S.C. § 1861(a) (2008). Congressional Research Service 10 Amendments to the Foreign Intelligence Surveillance Act Set to Expire May 27, 2011 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. 76 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.77 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.”78 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.79 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.80 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.”81 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.82 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.83 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. 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 (continued...) Congressional Research Service 11 Amendments to the Foreign Intelligence Surveillance Act Set to Expire May 27, 2011 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.85 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.”86 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.]”87 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.]”88 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.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). 86 50 U.S.C. § 1862(b)(2)(B) (2001). 87 P.L. 107-56, § 215. 88 Surveillance Act (FISA) Expiring on December 15, 2019 April 11, 2016 (R40138) Jump to Main Text of Report

Summary

Two amendments to the Foreign Intelligence Surveillance Act (FISA) 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.

A third amendment to FISA 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.

In summer 2013, media began reporting on several foreign intelligence activities conducted by the National Security Agency (NSA), including the bulk collection of telephone metadata under Section 215 of the USA PATRIOT Act. After a one-day lapse in the expiring authorities, Congress enacted the USA FREEDOM Act, which placed new limitations on the scope of the government's foreign intelligence activities, while simultaneously extending the expired provisions through December 15, 2019.

Although these provisions are set to sunset at the end of 2019, grandfather clauses permit them to remain effective with respect to investigations that began, or potential offenses that took place, before the sunset date.

Amendments to the Foreign Intelligence Surveillance Act (FISA) Expiring on December 15, 2019

Overview

The Foreign Intelligence Surveillance Act (FISA) provides a statutory framework by which government agencies may, when gathering foreign intelligence for an 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 decisionmaker 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. At the time of enactment, these 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:

  • 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
  • Section 215 of the USA PATRIOT Act, which authorizes orders compelling a person to produce "any tangible thing" that is "relevant" to an authorized foreign intelligence, international terrorism, or counter-espionage investigation.10

These provisions were originally set to expire on December 31, 2005, but were extended multiple times, with slight modifications, through June 1, 2015.11 In summer 2013, media began reporting on several foreign intelligence activities conducted by the National Security Agency (NSA), including the bulk collection of telephone metadata under Section 215. The controversy surrounding Section 215 complicated efforts to reauthorize all three of the expiring provisions, and they eventually expired on June 1, 2015. One day later, Congress enacted the USA FREEDOM Act, which placed new limitations on the scope of the government's foreign intelligence activities, while simultaneously extending the expired provisions through December 15, 2019.12

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

Expiring FISA Amendments

The three amendments to FISA covered by this report are the "lone wolf," "roving wiretap," and Section 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.

Access to Business Records Under Section 215

As a result of the leaks by Edward Snowden, Section 215 has come to be the most controversial provision in recent years, as well as the provision with the most extensive legislative and litigation history. 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.15 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.16

Expansion of the Scope of Documents Subject to FISA

Prior to the USA PATRIOT Act, FISA authorized the production of only four types of business records in foreign intelligence or international terrorism investigations. These were records from common carriers, public accommodation facilities, storage facilities, and vehicle rental facilities.17 The USA PATRIOT Act expanded the scope of records to authorize the production of "any tangible things."18 The scope of documents potentially covered by Section 215 was not changed by the USA FREEDOM Act.

Changes to the Standard of Review

Section 215 of the USA PATRIOT Act also modified the evidentiary standard the FISC would apply before issuing an order compelling the production of documents. Prior to enactment of Section 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."19 In contrast, under Section 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.]"20 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.]"21 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.22

Beginning in 2006, the government began to use orders of the FISC issued pursuant to Section 215 to collect large amounts of domestic telephone metadata in bulk with the goal of helping to detect and identify individuals who were part of terrorist networks.23 This program is frequently described as collecting telephone metadata "in bulk" to distinguish it from the narrower collection of metadata pertaining to an identified individual or group of individuals that is commonplace in both law enforcement and national security investigations.24

Following the public disclosure of these bulk intelligence activities, Section 215 was amended by the USA FREEDOM Act to additionally require the use of a "specific selection term" (SST) to "limit collection to the greatest extent reasonably practicable."25 An SST was defined as "a term that specifically identifies a person, account, address, or personal device, or any other specific identifier." These amendments also expressly prohibited orders under Section 215 that are limited only by broad geographic terms (such as a state or zip code) or named communications service providers (such as Verizon or AT&T).26

A slightly relaxed standard can be used under the amended Section 215 to obtain telephone metadata on an ongoing basis, but only for international terrorism investigations.27 Whereas a standard order under Section 215 would produce only those records that are responsive to an approved SST, an order seeking telephone records for an international terrorism investigation can also be used to produce a second set of telephone records that are not themselves responsive to an approved SST, but that are connected to one of the records that was directly produced by an SST.28 For example, if Alice called Bob, and Bob also called Charles, then a single Section 215 order that used Alice's phone number as an SST could obtain records of the call to Bob as well as records of the call from Bob to Charles. In order to take advantage of this increased scope of production, the government would need to demonstrate to the FISC that there was a "reasonable articulable suspicion" that the SST is associated with a foreign power, or an agent of a foreign power, who was engaged in international terrorism.29

Nondisclosure and Judicial Review

Orders issued under Section 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.30 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.31

The USA PATRIOT Improvement and Reauthorization Act of 2005 provided procedures by which a recipient of a Section 215 order may challenge orders compelling the production of business records.32 Once a petition for review is submitted by a recipient, a FISC judge must determine whether the petition is frivolous within 72 hours.33 If the petition is frivolous, it must be denied and the order affirmed.34 The order may be modified or set aside if it does not meet the requirements of FISA or is otherwise unlawful.35 Appeals by either party may be heard by the Foreign Intelligence Court of Review and the Supreme Court.36

Judicial review of nondisclosure orders operates under a similar procedure,37 but such orders are not reviewable for one year after they are initially issued.38 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.39

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.40 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.41 Appeals by either party may be heard by the Foreign Intelligence Court of Review and the Supreme Court.42

"Lone Wolf" Terrorists

Commonly referred to as the "lone wolf" provision, Section 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.43 Specifically, FBI agents investigating Moussaoui suspected that he had planned a terrorist attack involving piloting commercial airliners, and had detained him in August 2001 on an immigration charge.44 The FBI agents then sought a court order under FISA to examine the contents of Moussaoui's laptop computer.45 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.46

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.47 The definition of a "foreign power" included "groups engaged in international terrorism or activities in preparation therefor."48 Individuals involved in international terrorism for or on behalf of those groups were considered "agents of a foreign power."49 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.50

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.51 One such amendment was ultimately enacted with passage of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA).52 Section 6001 of the legislation, known as the "lone wolf" provision, provides that persons, other than citizens or permanent residents of the United States, who are engaged in international terrorism are presumptively considered to be agents of a foreign power.53 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.54 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."55

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 self-radicalized.56

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.57 It is often colloquially described as allowing FISA wiretaps to target persons rather than places.

Background

Prior to enactment of Section 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.58 Second, only identifiable third parties could be directed by the government to facilitate electronic surveillance.59 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.60 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 Section 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."61 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.62 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."63 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.64

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."65 One of the requirements, referred to as the particularity requirement, states that warrants shall "particularly describ[e] the place to be searched."66 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,67 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 Section 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.68 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.69 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.70 Second, Title III requires that the surveilled individuals be notified of the surveillance, generally 90 days after surveillance terminates.71 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.72 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.73

Applying this test, the Ninth Circuit held that roving wiretaps under Title III satisfied the particularity clause of the Fourth Amendment.74 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.75

Critics of roving wiretaps under FISA may argue that Section 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.76

Effect of Sunset Provisions

As noted above, these three FISA amendments have been extended until December 15, 2019. If that date were to arrive without any extension, the amended FISA authorities would revert to their text as it appeared before the enactment of the USA PATRIOT Act. For example, in the context of roving wiretaps, Section 105(c)(2) of FISA would read as it did on October 25, 2001,77 eliminating the authority for FISA court orders to direct other unspecified persons to assist with electronic surveillance.78 Likewise, regarding FISA orders for the production of documents, Sections 501 and 502 of FISA would read as they did on October 25, 2001,79 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."80

However, a grandfather clause applies to each of the three provisions.81 The grandfather clauses authorize the continued effect of the amendments with respect to investigations that began, or potential offenses that took place, before the provisions' sunset date.82 Thus, for example, if a non-U.S. person were engaged in international terrorism before the sunset date, 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 before that date, he may be the target of a roving wiretap under FISA even if authority for new roving wiretaps expired.

Author Contact Information

[author name scrubbed], Legislative Attorney ([email address scrubbed], [phone number scrubbed])

Footnotes

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) (definition of "foreign intelligence information").

2.

50 U.S.C. §§ 1801-1808.

3.

50 U.S.C. §§ 1822-1826.

4.

50 U.S.C. §§ 1841-1846. 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).

5.

50 U.S.C. §§ 1861-1862.

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).

9.

P.L. 107-56, § 206, codified at 50 U.S.C. § 1805(c)(2)(B).

10.

Id. at § 215, codified at 50 U.S.C. §§ 1861-2. Records are considered 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. Additionally, 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, and cannot be further delegated.

11.

See, e.g., P.L. 109-160 (extension until February 3, 2006); USA PATRIOT Improvement and Reauthorization Act of 2005, P.L. 109-177 (extension until December 31, 2009); Department of Defense Appropriations Act, 2010, P.L. 111-118, § 1004 (2009) (extension until February 28, 2010); P.L. 111-141 (extension until February 28, 2011); P.L. 112-3 (extension until May 27, 2011); and P.L. 112-14 (extension until June 1, 2015).

12.

Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015, P.L. 114-23.

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 [author name scrubbed] and [author name scrubbed], 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.

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.

16.

50 U.S.C. § 1861.

17.

50 U.S.C. § 1862(a).

18.

50 U.S.C. § 1861(a)(1). 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. E.g. Richard B. Schmitt, House Weakens Patriot Act's 'Library Provision', L.A. Times, June 16, 2005, at A-1. 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. 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).

19.

50 U.S.C. § 1862(b)(2)(B).

20.

P.L. 107-56, § 215.

21.
USA PATRIOT Improvement and Reauthorization Act of 2005, P.L. 109-177, § 106(b). 89 50 U.S.C. § 1861(b)(2)(A). Congressional Research Service 12 Amendments to the Foreign Intelligence Surveillance Act Set to Expire May 27, 2011 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.93 If the petition is frivolous, it must be denied and the order affirmed. 94 The order may be modified or set aside if it does not meet the requirements of FISA or is otherwise unlawful.95 Appeals by either party may be heard by the Foreign Intelligence Court of Review and the Supreme Court.96 Judicial review of nondisclosure orders operates under a similar procedure,97 but such orders are not reviewable for one year after they are initially issued.98 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.99 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.100 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.101 Appeals by either party may be heard by the Foreign Intelligence Court of Review and the Supreme Court.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). 94 Id. 95 50 U.S.C. § 1861(f)(2)(B) (2008). 96 50 U.S.C. § 1861(f)(3) (2008). 97 22.

50 U.S.C. § 1861(b)(2)(A).

23.

Unclassified Declaration of Frances J. Fleisch, National Security Agency, Schubert v. Obama, No. 07-cv-0693-JSW at ¶ 32 (N.D. Cal. December 20, 2013) available at http://icontherecord.tumblr.com. Metadata in this context includes dialed and incoming call logs, along with the date, time, and duration of the calls. The collection of bulk metadata had begun at the NSA shortly after the terrorist attacks of September 11, 2001. This earlier collection did not use the authority of Section 215. In re Application of the FBI for an Order Requiring the Production of Tangible Things from [Redacted], No. BR 14-01, at 11 n.7 (FISA Ct. March 20, 2014).

24.

A number of lawsuits were also filed by private citizens and advocacy groups alleging that the bulk collection under Section 215 violated both constitutional and statutory provisions. See CRS Report R43459, Overview of Constitutional Challenges to NSA Collection Activities, by [author name scrubbed], [author name scrubbed], and [author name scrubbed]. These suits have largely been rendered moot by the enactment of the USA FREEDOM Act, with the exception of plaintiffs' requests to delete information previously collected.

25.

P.L. 114-23, § 103.

26.

Id. § 107.

27.

Id. § 101. Codified at 50 U.S.C. § 1861(b)(2)(C). Orders issued under this authority would last for 180 days. 50 U.S.C. § 1861(c)(2)(F)(i).

28.

50 U.S.C. § 1861(c)(2)(F)(iv).

29.

50 U.S.C. § 1861(b)(2)(C)(ii).

30.

50 U.S.C. § 1861(d)(1).

31.

50 U.S.C. § 1861(d)(2)(C).

32.

50 U.S.C. § 1861(f)(2)(A)(i).

33.

50 U.S.C. § 1861(f)(2)(A)(ii).

34.

Id.

35.

50 U.S.C. § 1861(f)(2)(B).

36.

50 U.S.C. § 1861(f)(3).

37.
Judicial review of nondisclosure orders was added by P.L. 109-178, § 3. 98 38. 50 U.S.C. § 1861(f)(2)(A)(i) (2008). 99 . 39. 50 U.S.C. § 1861(f)(2)(C)(i) (2008). 100 . 40. 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). 101 50 U.S.C. § 1861(f)(2)(C)(iii) (2008). 102 50 U.S.C. § 1861(f)(3) (2008). 91 Congressional Research Service 13 Amendments to the Foreign Intelligence Surveillance Act Set to Expire May 27, 2011 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. 105 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.106 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.107 Effect of Sunset Provisions As mentioned, the expiring FISA amendments were originally scheduled to sunset on December 31, 2005,108 but the sunset dates have been extended to May 27, 2011.109 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, 2001,110 eliminating the authority for FISA court orders to 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. 106 Id. at 5. 107 Id. at 6. 108 P.L. 108-458, § 6001(b); P.L. 107-56, § 224(a). 109 P.L. 109-177, § 103; P.L. 111-118, § 1004; P.L. 111-141; P.L. 112-3. 110 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). 104 Congressional Research Service 14 Amendments to the Foreign Intelligence Surveillance Act Set to Expire May 27, 2011 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 on 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 on that date, he may 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 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 FISA Sunsets Extension Act (S. 149)116 would extend all three provisions until December 31, 2013, and 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 provisions and Title VII of FISA until December 31, 2013. It would additionally impose the same sunset date on national security letter 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. 41.

50 U.S.C. § 1861(f)(2)(C)(iii).

42.

50 U.S.C. § 1861(f)(3).

43.

Nat'l Comm. on Terrorist Attacks Upon the U.S., The 9/11 Commission Report, at 273-274 [hereinafter "9/11 Comm'n Rep."]

44.

Id. at 273. Moussaoui, a French national, was present in the United States with an expired visa.

45.

Id. at 273-274.

46.

Id. at 274. Based upon this conclusion, the FBI "declined to submit a FISA application" to the FISC.

47.

50 U.S.C. § 1821-1824.

48.

50 U.S.C. § 1801(a)(4). 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)

49.

50 U.S.C. § 1801(b)(2)(C).

50.

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.

51.

S. 2586, 107th Cong. (2002); S. 113, 108th Cong. (2003).

52.

S. 2845, 108th Cong. (2004) (enacted).

53.

P.L. 108-458, § 6001(a), codified at 50 U.S.C. § 1801(b)(1)(3).

54.

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).

55.

Id. at 73 (additional views of Senator Feingold).

56.

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).

57.

P.L. 107-56, § 206, codified at 50 U.S.C. § 1805(c)(2)(B).

58.

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").

59.

See 50 U.S.C. § 1805(c)(2)(B) (2001).

60.

See 50 U.S.C. §§ 1809(a) and 1810.

61.

P.L. 107-56, § 206, codified at 50 U.S.C. § 1805(c)(2)(B).

62.

P.L. 107-108, § 314(a)(2)(A).

63.

P.L. 109-177, § 108(b)(4), codified at 50 U.S.C. § 1805(c)(3). This deadline for notification can be extended to up to 60 days by the FISC upon a showing of good cause.

64.

Id.

65.

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).

66.

Id.

67.

See supra footnotes 16-17 and accompanying text.

68.

Electronic Communications Privacy Act of 1986, P.L. 99-508, § 106(d)(3), codified at 18 U.S.C. § 2518(11).

69.

18 U.S.C. § 2518(11)(b)(ii).

70.

See 50 U.S.C. §§ 1804(a)(3), 1805(c)(1)(A).

71.

18 U.S.C. § 2518(8)(d). This notification may be postponed upon an ex parte showing of good cause.

72.

973 F.2d 1441 (9th Cir. 1992).

73.

Id. at 1444 (internal quotation marks omitted).

74.

Id. at 1445.

75.

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).

76.

50 U.S.C. §§ 1804(a)(3), 1805(c)(1)(B).

77.

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).

78.

The sunset will not repeal the provision of FISA that permits a FISA warrant to omit the identify of 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.

79.

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).

80.

50 U.S.C. § 1862(b)(2)(B) (2001).

81.

None of the extensions have affected the grandfather provisions.

82. 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. Congressional Research Service 15 Amendments to the Foreign Intelligence Surveillance Act Set to Expire May 27, 2011 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.119 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 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 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. Congressional Research Service 16 Amendments to the Foreign Intelligence Surveillance Act Set to Expire May 27, 2011 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. Author Contact Information Edward C. Liu Legislative Attorney eliu@crs.loc.gov, 7-9166 Congressional Research Service 17 224(b)).