Order Code RL30465
CRS Report for Congress
Received through the CRS Web
The Foreign Intelligence Surveillance Act:
An Overview of the Statutory Framework
and Recent Judicial Decisions
Updated April 21, 2005
Elizabeth B. Bazan
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

The Foreign Intelligence Surveillance Act:
An Overview of the Statutory Framework
and Recent Judicial Decisions
Summary
The Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et seq., (FISA) as
passed in 1978, provided a statutory framework for the use of electronic surveillance
in the context of foreign intelligence gathering. In so doing, the Congress sought to
strike a delicate balance between national security interests and personal privacy
rights. Subsequent legislation expanded federal laws dealing with foreign
intelligence gathering to address physical searches, pen registers and trap and trace
devices, and access to certain business records. The Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA PATRIOT) Act of 2001, P.L. 107-56, made significant changes to
some of these provisions. Further amendments were included in the Intelligence
Authorization Act for Fiscal Year 2002, P.L. 107-108, and the Homeland Security
Act of 2002, P.L. 107-296, and the Intelligence Reform and Terrorism Prevention
Act, P.L. 108-458. In addressing international terrorism or espionage, the same
factual situation may be the focus of both criminal investigations and foreign
intelligence collection efforts. Changes in FISA under these public laws are intended
to facilitate information sharing between law enforcement and intelligence elements.
In its Final Report, the 9/11 Commission noted that the removal of the pre-9/11
“wall” between intelligence and law enforcement “has opened up new opportunities
for cooperative action within the FBI.”
On May 17, 2002, the U.S. Foreign Intelligence Surveillance Court (FISC)
issued a memorandum opinion and order written by the then Presiding Judge of the
court, and concurred in by all of the other judges then on the court. The unclassified
opinion and order were provided to the Senate Judiciary Committee in response to
a letter from Senator Leahy, Senator Grassley, and Senator Specter, who released
them to the public on August 22, 2002. In its decision, the FISC considered a motion
by the U.S. Department of Justice “to vacate the minimization and ‘wall’ procedures
in all cases now or ever before the Court, including this Court’s adoption of the
Attorney General’s July 1995 intelligence sharing procedures, which are not
consistent with new intelligence sharing procedures submitted for approval with this
motion.” The FISC granted the Department’s motion, but modified part of the what
it saw as proposed minimization procedures. This decision was not appealed
directly, but the Department of Justice did seek review of a FISC order authorizing
electronic surveillance of an agent of a foreign power and of a FISC order renewing
that surveillance, both subject to restrictions based upon the May 17th memorandum
opinion and order by the FISC. The U.S. Foreign Intelligence Surveillance Court of
Review reversed and remanded the FISC orders on November 18, 2002.
This report will examine the detailed statutory structure provided by FISA and
related provisions of E.O. 12333. In addition, it will discuss the decisions of the U.S.
Foreign Intelligence Surveillance Court and the U.S. Foreign Intelligence
Surveillance Court of Review.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Executive Order 12333 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
The Foreign Intelligence Surveillance Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
The Statutory Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Electronic surveillance under FISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Physical searches for foreign intelligence gathering purposes . . . . . . . 34
Pen registers or trap and trace devices used for foreign
intelligence gathering purposes . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Access to certain business records for foreign intelligence purposes . 52
New Private Right of Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
USA PATRIOT Act Sunset Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Recent Decisions of the FISC and the U.S. Foreign Intelligence Surveillance
Court of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
The FISC Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Discussion of the Memorandum Opinion and Order . . . . . . . . . . . . . . 58
The Decision of the U.S. Foreign Intelligence Surveillance
Court of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Discussion of the Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

The Foreign Intelligence Surveillance Act:
An Overview of the Statutory Framework
and Recent Judicial Decisions
Introduction
On October 26, 2001, President George W. Bush signed P.L. 107-56, the
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act or the USA PATRIOT Act. Among its
provisions are a number which impacted or amended the Foreign Intelligence
Surveillance Act, 50 U.S.C. § 1801 et seq. (FISA). For example, the law expanded
the number of United States district court judges on the Foreign Intelligence
Surveillance Court and provided for roving or multipoint electronic surveillance
authority under FISA. It also amended FISA provisions with respect to pen registers
and trap and trace devices and access to business records. In addition, FISA, as
amended, substantially expanded the reach of the business records provisions. The
amended language changed the certification demanded of a federal officer applying
for a FISA order for electronic surveillance or a physical search from requiring a
certification that the purpose of the surveillance or physical search is to obtain
foreign intelligence information to requiring certification that a significant purpose
of the surveillance or search is to obtain foreign intelligence information. FISA, as
amended, also affords persons aggrieved by inappropriate use or disclosure of
information gathered in or derived from a FISA surveillance, physical search or use
of a pen register or trap and trace device a private right of action. Of the amendments
made by the USA PATRIOT Act, all but the section which increased the number of
judges on the Foreign Intelligence Surveillance Court will sunset on December 31,
2005. Subsequent amendments to FISA were made by the Intelligence Authorization
Act for Fiscal Year 2003, P.L. 107-108; the Homeland Security Act of 2002, P.L.
107-296; and the Intelligence Reform and Terrorism Protection Act of 2004, P.L.
108-458.
On May 17, 2002, the U.S. Foreign Intelligence Surveillance Court (FISC)
issued an opinion and order1 written by the then Presiding Judge of the court, U.S.
District Judge Royce C. Lamberth. All of the other judges then on the FISC
concurred in the order. The opinion was provided by the current Presiding Judge of
the FISC, U.S. District Judge Colleen Kollar-Kotelly, to the Senate Judiciary
Committee in response to a July 31 letter from Senator Leahy, Senator Grassley and
1 In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp.
2d 611(U.S. Foreign Intell. Surveil. Ct. 2002) (hereinafter FISC op.).

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Senator Specter.2 On August 22, 2002, the unclassified opinion was released to the
public by Senator Leahy, Senator Grassley and Senator Specter.
In the memorandum opinion and order, the FISC considered a motion by the
U.S. Department of Justice “to vacate the minimization and ‘wall’ procedures in all
cases now or ever before the Court, including this Court’s adoption of the Attorney
General’s July 1995 intelligence sharing procedures, which are not consistent with
new intelligence sharing procedures submitted for approval with this motion.”3 In
its memorandum and accompanying order, the FISC granted the Department of
Justice’s motion, but modified the second and third paragraphs of section II.B of the
proposed minimization procedures.4
The FISC’s May 17th memorandum opinion and order were not appealed
directly. However, the Justice Department sought review in the U.S. Foreign
Intelligence Court of Review (Court of Review) of an FISC order authorizing
electronic surveillance of an agent of a foreign power, subject to restrictions flowing
from the May 17th decision, and of an FISC order renewing that surveillance subject
to the same restrictions.5 The Court of Review reversed and remanded the FISC
orders.6 This opinion, the first issued by the U.S. Foreign Intelligence Surveillance
2 See, Statement of Sen. Patrick Leahy, Chairman, Committee on the Judiciary, “The USA
PATRIOT Act in Practice: Shedding Light on the FISA Process” (Sept. 10, 2002),
[http://judiciary.senate.gov/member_statement.cfm?id=398&wit_id=50]; “Courts,” National
Journal’s Technology Daily
(August 22, 2002, PM Edition); “Secret Court Rebuffs
Ashcroft; Justice Dept. Chided on Misinformation,” by Dan Eggen and Susan Schmidt,
Washington Post, p. A1 (August 23, 2002).
3 FISC op., 218 F. Supp. 2d at 613.
4 Id. at 624-27.
5 In re Sealed Case, 310 F.3d 717 (U.S. Foreign Intell. Surveil. Ct. Rev. 2002) (hereinafter
Court of Review op.).
6 The Foreign Intelligence Surveillance Act, P.L. 95-511, as amended (hereinafter FISA),
Title I, § 103, 50 U.S.C. § 1803, created both the U.S. Foreign Intelligence Surveillance
Court and the U.S. Foreign Intelligence Surveillance Court of Review. As originally
constituted the FISC was made up of 7 U.S. district court judges publicly designated by the
Chief Justice of the United States. As amended by the USA PATRIOT Act, P.L. 107-56,
§ 208, the membership in the FISC was expanded to 11 members, at least 3 of whom must
live within a 20 mile radius of the District of Columbia. The U.S. Foreign Intelligence
Surveillance Court of Review is made up of 3 U.S. district court or U.S. court of appeals
judges publicly designated by the Chief Justice.
The current language of 50 U.S.C. § 1803 provides:
§ 1803. Designation of judges
(a) Court to hear applications and grant orders; record of denial; transmittal to
court of review
The Chief Justice of the United States shall publicly designate 11 district
court judges from seven of the United States judicial circuits of whom no fewer
than 3 shall reside within 20 miles of the District of Columbia who shall
(continued...)

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6 (...continued)
constitute a court which shall have jurisdiction to hear applications for and grant
orders approving electronic surveillance anywhere within the United States under
the procedures set forth in this chapter, except that no judge designated under
this subsection shall hear the same application for electronic surveillance under
this chapter which has been denied previously by another judge designated under
this subsection. If any judge so designated denies an application for an order
authorizing electronic surveillance under this chapter, such judge shall provide
immediately for the record a written statement of each reason for his decision
and, on motion of the United States, the record shall be transmitted, under seal,
to the court of review established under subsection (b) of this section.
(b) Court of review; record, transmittal to Supreme Court
The Chief Justice shall publicly designate three judges, one of whom shall
be publicly designated as the presiding judge, from the United States district
courts or courts of appeals who together shall comprise a court of review which
shall have jurisdiction to review the denial of any application made under this
chapter. If such court determines that the application was properly denied, the
court shall immediately provide for the record a written statement of each reason
for its decision and, on petition of the United States for a writ of certiorari, the
record shall be transmitted under seal to the Supreme Court, which shall have
jurisdiction to review such decision.
(c) Expeditious conduct of proceedings; security measures for maintenance of
records
Proceedings under this chapter shall be conducted as expeditiously as
possible. The record of proceedings under this chapter, including applications
made and orders granted, shall be maintained under security measures
established by the Chief Justice in consultation with the Attorney General and
the Director of National Intelligence.
(d) Tenure
Each judge designated under this section shall so serve for a maximum of
seven years and shall not be eligible for redesignation, except that the judges first
designated under subsection (a) of this section shall be designated for terms from
one to seven years so that one term expires each year, and that judges first
designated under subsection (b) of this section shall be designated for terms of
three, five, and seven years.
The reference in subsection (a), (b), and (c) to “this chapter” refers to chapter 36 of Title 50,
U.S.C., where the Foreign Intelligence Surveillance Act, as amended, is codified. This Act,
as amended, deals with electronic surveillance (50 U.S.C. § 1801 et seq.), physical searches
(50 U.S.C. § 1821 et seq.), pen registers and trap and trace devices (50 U.S.C. § 1841 et
seq.
), and “access to certain business records for foreign intelligence and international
terrorism investigations” (50 U.S.C. § 1861). The judges of the FISC are given jurisdiction
over applications for physical searches for the purpose of obtaining foreign intelligence
information anywhere in the United States under 50 U.S.C. § 1822(c). Under 50 U.S.C. §
1842(b), an application for an order authorizing or approving the installation and use of a
pen register or trap and trace device for foreign intelligence or international terrorism
investigations may be made to either a judge of the FISC or to a U.S. Magistrate Judge
publicly designated by the Chief Justice of the United States to have the power to hear
applications for and grant orders on behalf of an FISC judge approving such installation and
use. Similarly, under 50 U.S.C. § 1861(b), an application for an order for production of
tangible things under the “business records” provision may be made either to an FISC judge
or to a U.S. Magistrate Judge publicly designated by the Chief Justice of the United States
(continued...)

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Court of Review since its creation in 1978, was also released to the public. This
report will provide background on the Foreign Intelligence Surveillance Act, discuss
its statutory framework, and review these two decisions.
Background
Investigations for the purpose of gathering foreign intelligence give rise to a
tension between the Government’s legitimate national security interests and the
protection of privacy interests.7 The stage was set for legislation to address these
competing concerns in part by Supreme Court decisions on related issues. In Katz
v. United States
, 389 U.S. 347 (1967), the Court held that the protections of the
Fourth Amendment extended to circumstances involving electronic surveillance of
oral communications without physical intrusion.8 The Katz Court stated, however,
that its holding did not extend to cases involving national security.9 In United States
v. United States District Court
, 407 U.S. 297 (1972) (the Keith case), the Court
regarded Katz as “implicitly recogniz[ing] that the broad and unsuspected
governmental incursions into conversational privacy which electronic surveillance
entails necessitate the application of Fourth Amendment safeguards.”10 Mr. Justice
Powell, writing for the Keith Court, framed the matter before the Court as follows:
The issue before us is an important one for the people of our country and their
Government. It involves the delicate question of the President’s power, acting
through the Attorney General, to authorize electronic surveillance in internal
security matters without prior judicial approval. Successive Presidents for more
than one-quarter of a century have authorized such surveillance in varying
degrees, without guidance from the Congress or a definitive decision of this
Court. This case brings the issue here for the first time. Its resolution is a matter
of national concern, requiring sensitivity both to the Government’s right to
protect itself from unlawful subversion and attack and to the citizen’s right to be
secure in his privacy against unreasonable Government intrusion.11
6 (...continued)
to hear such an application and to grant such an order on behalf of an FISC judge.
7 The Fourth Amendment to the United States Constitution states:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to
be seized.
8 Katz v. United States, 389 U.S. 347, 353 (1967).
9 Id., at 359, n. 23.
10 United States v. United States District Court, 407 U.S. 297, 313-14 (1972).
11 407 U.S. at 299.

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The Court held that, in the case of intelligence gathering involving domestic security
surveillance, prior judicial approval was required to satisfy the Fourth Amendment.12
Justice Powell emphasized that the case before it “require[d] no judgment on the
scope of the President’s surveillance power with respect to the activities of foreign
powers, within or without the country.”13 The Court expressed no opinion as to “the
issues which may be involved with respect to activities of foreign powers or their
agents.”14 However, the guidance which the Court provided in Keith with respect to
national security surveillance in a domestic context to some degree presaged the
approach Congress was to take in foreign intelligence surveillance. The Keith Court
observed in part:
. . . We recognize that domestic surveillance may involve different policy and
practical considerations from the surveillance of “ordinary crime.” The
gathering of security intelligence is often long range and involves the
interrelation of various sources and types of information. The exact targets of
such surveillance may be more difficult to identify than in surveillance
operations against many types of crime specified in Title III [of the Omnibus
Crime Control and Safe Streets Act, 18 U.S.C. § 2510 et seq.]. Often, too, the
emphasis of domestic intelligence gathering is on the prevention of unlawful
activity or the enhancement of the Government’s preparedness for some possible
future crisis or emergency. Thus, the focus of domestic surveillance may be less
precise than that directed against more conventional types of crimes. Given these
potential distinctions between Title III criminal surveillances and those involving
domestic security, Congress may wish to consider protective standards for the
latter which differ from those already prescribed for specified crimes in Title III.
Different standards may be compatible with the Fourth Amendment if they are
reasonable both in relation to the legitimate need of Government for intelligence
information and the protected rights of our citizens. For the warrant application
may vary according to the governmental interest to be enforced and the nature
of citizen rights deserving protection. . . . It may be that Congress, for example,
would judge that the application and affidavit showing probable cause need not
follow the exact requirements of § 2518 but should allege other circumstances
more appropriate to domestic security cases; that the request for prior court
authorization could, in sensitive cases, be made to any member of a specially
designated court . . .; and that the time and reporting requirements need not be
so strict as those in § 2518. The above paragraph does not, of course, attempt to
12 Id., at 391-321. Justice Powell also observed that,
National security cases . . . often reflect a convergence of First and Fourth
Amendment values not present in cases of “ordinary” crime. Though the
investigative duty of the executive may be stronger in such cases, so also is there
greater jeopardy to constitutionally protected speech. “Historically the struggle
for freedom of speech and press in England was bound up with the issue of the
scope of the search and seizure power,” Marcus v. Search Warrant, 367 U.S.
717, 724 (1961). . . . Fourth Amendment protections become the more necessary
when the targets of official surveillance may be those suspected of unorthodoxy
in their political beliefs. The danger to political dissent is acute where the
Government attempts to act under so vague a concept as the power to protect
“domestic security.” . . . .
13 Id., at 308.
14 Id., at 321-22.

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guide the congressional judgment but rather to delineate the present scope of our
own opinion. We do not attempt to detail the precise standards for domestic
security warrants any more than our decision in Katz sought to set the refined
requirements for the specified criminal surveillances which now constitute Title
III. We do hold, however, that prior judicial approval is required for the type of
domestic surveillance involved in this case and that such approval may be made
in accordance with such reasonable standards as the Congress may prescribe.15
Court of appeals decisions following Keith met more squarely the issue of
warrantless electronic surveillance in the context of foreign intelligence gathering.
In United States v. Brown, 484 F.2d 418 (5th Cir. 1973), cert. denied, 415 U.S. 960
(1974), the Fifth Circuit upheld the legality of a warrantless wiretap authorized by
the Attorney General for foreign intelligence purposes where the conversation of
Brown, an American citizen, was incidentally overheard. The Third Circuit in United
States v. Butenko
, 494 F.2d 593 (3rd Cir. 1974), cert. denied sub nom, Ivanov v.
United States
, 419 U.S. 881 (1974), concluded that warrantless electronic
surveillance was lawful, violating neither Section 605 of the Communications Act
nor the Fourth Amendment, if its primary purpose was to gather foreign intelligence
information. In its plurality decision in Zweibon v. Mitchell, 516 F.2d 594, 613-14
(D.C. Cir. 1975), cert. denied, 425 U.S. 944 (1976), the District of Columbia Circuit
took a somewhat different view in a case involving a warrantless wiretap of a
domestic organization that was not an agent of a foreign power or working in
collaboration with a foreign power. Finding that a warrant was required in such
circumstances, the plurality also noted that “an analysis of the policies implicated by
foreign security surveillance indicates that, absent exigent circumstances, all
warrantless electronic surveillance is unreasonable and therefore unconstitutional.”
With the passage of the Foreign Intelligence Surveillance Act (FISA), P.L. 95-
511, Title I, Oct. 25, 1978, 92 Stat. 1796, codified as amended at 50 U.S.C. § 1801
et seq., Congress sought to strike a delicate balance between these interests when the
gathering of foreign intelligence involved the use of electronic surveillance.16
Collection of foreign intelligence information through electronic surveillance is now
governed by FISA and E.O. 12333.17 This report will examine the provisions of
FISA which deal with electronic surveillance, in the foreign intelligence context, as
well as those applicable to physical searches, the use of pen registers and trap and
trace devices under FISA, and access to business records and other tangible things
for foreign intelligence purposes. As the provisions of E.O. 12333 to some extent set
15 407 U.S. at 323-24.
16 For an examination of the legislative history of P.L. 95-511, see S.Rept. 95-604, Senate
Committee on the Judiciary, Parts I and II (Nov. 15, 22, 1977); S.Rept. 95-701, Senate
Select Committee on Intelligence (March 14, 1978); H.Rept. 95-1283, House Permanent
Select Committee on Intelligence (June 8, 1978); H. Conf. Rept. 95-1720 (Oct. 5, 1978);
Senate Reports and House Conference Report are reprinted in 1978 U.S. Code Cong. &
Admin. News
3904.
17 Physical searches for foreign intelligence information are governed by 50 U.S.C. § 1821
et seq., while the use of pen registers and trap and trace devices in connection with foreign
intelligence investigations is addressed in 50 U.S.C. § 1841 et seq. Access to certain
business records for foreign intelligence or international terrorism investigative purposes
is covered by 50 U.S.C. § 1861 et seq.

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the broader context within which FISA operates, we will briefly examine its pertinent
provisions first.
Executive Order 12333

Executive Order 12333 (December 4, 1981), as amended, 50 U.S.C. § 401 note,
deals with “United States Intelligence Activities.” Under Section 2.3 of E.O. 12333,
the agencies within the Intelligence Community are to “collect, retain or disseminate
information concerning United States persons only in accordance with procedures
established by the head of the agency concerned and approved by the Attorney
General, consistent with the authorities provided by Part 1 of this Order. . . .” Among
the types of information that can be collected, retained or disseminated under this
section are:
(a) Information that is publicly available or collected with the consent of
the person concerned;
(b) Information constituting foreign intelligence or counterintelligence,
including such information concerning corporations or other commercial
organizations. Collection within the United States of foreign intelligence not
otherwise obtainable shall be undertaken by the FBI or, when significant foreign
intelligence is sought, by other authorized agencies of the Intelligence
Community, provided that no foreign intelligence collection by such agencies
may be undertaken for the purpose of acquiring information concerning the
domestic activities of United States persons;
(c) Information obtained in the course of a lawful foreign intelligence,
counterintelligence, international narcotics or international terrorism
investigation;
(d) Information needed to protect the safety of any persons or organizations,
including those who are targets, victims or hostages of international terrorist
organizations;
(e) Information needed to protect foreign intelligence or counterintelligence
sources or methods from unauthorized disclosure. Collection within the United
States shall be undertaken by the FBI except that other agencies of the
Intelligence Community may also collect such information concerning present
or former employees, present or former intelligence agency contractors or their
present or former employees, or applicants for any such employment or
contracting;
(f) Information concerning persons who are reasonably believed to be
potential sources or contacts for the purpose of determining their suitability or
credibility;
(g) Information arising out of a lawful personnel, physical or
communications security investigation;
. . .
(i) Incidentally obtained information that may indicate involvement in
activities that may violate federal, state, local or foreign laws; and
(j) Information necessary for administrative purposes.
In addition, agencies within the Intelligence Community may disseminate
information, other than information derived from signals intelligence, to each
appropriate agency within the Intelligence Community for purposes of allowing
the recipient agency to determine whether the information is relevant to its
responsibilities and can be retained by it.

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In discussing collections techniques, Section 2.4 of E.O. 12333 indicates that
agencies within the Intelligence Community are to use
the least intrusive collection techniques feasible within the United States or
directed against United States persons abroad. Agencies are not authorized to
use such techniques as electronic surveillance, unconsented physical search, mail
surveillance, physical surveillance, or monitoring devices unless they are in
accordance with procedures established by the head of the agency concerned and
approved by the Attorney General. Such procedures shall protect constitutional
and other legal rights and limit use of such information to lawful governmental
purposes. . . .
Section 2.5 of the Executive Order 12333 states that:
The Attorney General hereby is delegated the power to approve the use for
intelligence purposes, within the United States or against a United States person
abroad, of any technique for which a warrant would be required if undertaken for
law enforcement purposes, provided that such techniques shall not be undertaken
unless the Attorney General has determined in each case that there is probable
cause to believe that the technique is directed against a foreign power or an agent
of a foreign power. Electronic surveillance, as defined in the Foreign
Intelligence Surveillance Act of 1978 [section 1801 et seq. of this title], shall be
conducted in accordance with that Act, as well as this Order.
The Foreign Intelligence Surveillance Act
The Statutory Framework
Electronic surveillance under FISA. The Foreign Intelligence
Surveillance Act (FISA), P.L. 95-511, Title I, Oct. 25, 1978, 92 Stat. 1796, codified
at 50 U.S.C. § 1801 et seq., as amended, provides a framework for the use of
electronic surveillance,18 physical searches, pen registers and trap and trace devices
18 50 U.S.C. § 1801(f)(2) defines “electronic surveillance” to mean:
(1) the acquisition by an electronic, mechanical, or other surveillance device of
the contents of any wire or radio communication sent by or intended to be
received by a particular, known United States person who is in the United States,
if the contents are acquired by intentionally targeting that United States person,
under circumstances in which a person has a reasonable expectation of privacy
and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of
the contents of any wire communication to or from a person in the United States,
without the consent of any person thereto, if such acquisition occurs in the
United States, but does not include the acquisition of those communications of
computer trespassers that would be permissible under section 2511(2)(i) of Title
18
;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance
device of the contents of any radio communication, under circumstances in
which a person has a reasonable expectation of privacy and a warrant would be
required for law enforcement purposes, and if both the sender and all intended
(continued...)

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to acquire foreign intelligence information.19 This measure seeks to strike a balance
between national security needs in the context of foreign intelligence gathering and
privacy rights.20
18 (...continued)
recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance
device in the United States for monitoring to acquire information, other than
from a wire or radio communication, under circumstances in which a person has
a reasonable expectation of privacy and a warrant would be required for law
enforcement purposes.
The italicized portion of Subsection 1801(f)(2) was added by Sec. 1003 of P.L. 107-56.
19 “Foreign intelligence information” is defined in 50 U.S.C. § 1801(e) to mean:
(1) information that relates to, and if concerning a United States person is
necessary to, the ability of the United States to protect against —
(A) actual or potential attack or other grave hostile acts of a foreign power
or an agent of a foreign power;
(B) sabotage or international terrorism by a foreign power or an agent of a
foreign power;
(C) clandestine intelligence activities by an intelligence service or network
of a foreign power or by an agent of a foreign power; or
(2) information with respect to a foreign power or foreign territory that relates
to, and if concerning a United States person is necessary to —
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.
“International terrorism” is defined in 50 U.S.C. § 1801(c) to mean activities that:
(1) involve violent acts or acts dangerous to human life that are a violation of the
criminal laws of the United States or of any State, or that would be a criminal
violation if committed within the jurisdiction of the United States or any State;
(2) appear to be intended —
(A) to intimidate or coerce a civilian population;
(B) to influence the policy of a government by intimidation or coercion; or
(C) to affect the conduct of a government by assassination or kidnapping;
and
(3) occur totally outside the United States, or transcend national boundaries in
terms of the means by which they are accomplished, the persons they appear
intended to coerce or intimidate, or the locale in which their perpetrators operate
or seek asylum.
“Sabotage” is defined in 50 U.S.C. § 1801(d) to mean “activities that involve a violation of
chapter 105 of Title 18, or that would involve such a violation if committed against the
United States.”
20 In addition to the provisions dealing with electronic surveillance, physical searches and
pen registers and trap and trace devices, FISA includes a section which permits the Director
of the FBI or his designee (whose rank may be no lower than an Assistant Special Agent
in Charge) to apply for an order requiring “production of any tangible things (including
books, records, papers, documents, and other items) for an investigation to obtain foreign
(continued...)

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Under 50 U.S.C. § 1802, the President, through the Attorney General, may
authorize electronic surveillance to acquire foreign intelligence information for up
to one year without a court order if two criteria are satisfied. First, to utilize this
authority, the Attorney General must certify in writing under oath that:
(A) the electronic surveillance is solely directed at —
(i) the acquisition of the contents of communications transmitted by
means of communications used exclusively between or among foreign
powers, as defined in section 1801(a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken
communications of individuals, from property or premises under the open
and exclusive control of a foreign power, as defined in section 1801(a)(1),
(2) or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the
contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance
meet the definition of minimization procedures under section 1801(h) of this
title;21 . . . .
20 (...continued)
intelligence information not concerning a United States person or to protect against
international terrorism or clandestine intelligence activities . . . .” 50 U.S.C. § 1861(a)(1).
Where such an investigation is of a United States person, it may not be conducted “solely
upon the basis of activities protected by the first amendment to the Constitution.” Id.
Although this section is entitled “access to certain business records for foreign intelligence
and international terrorism investigations,” it encompasses substantially more than just
business records. The current language of 50 U.S.C. §§ 1861 and 1862 (which deals with
congressional oversight of all such requests for production of tangible things under § 1861)
was added by the USA PATRIOT Act, and amended by P.L. 107-108. It replaced former
50 U.S.C. §§ 1861-1863, added by P.L. 105-272, title VI, § 602, 112 Stat. 2411 (Oct. 20,
1998), which defined various terms, provided for applications for orders for access to certain
limited types of business records (relating to records in the possession of common carriers,
physical storage facilities, public accommodation facilities, and vehicle rental facilities) for
foreign intelligence and international terrorism investigations, and provided for
congressional oversight of such records requests.
21 Minimization procedures with respect to electronic surveillance are defined in 50 U.S.C.
§ 1801(h) to mean:
(1) specific procedures, which shall be adopted by the Attorney General,
that are reasonably designed in light of the purpose and technique of the
particular surveillance, to minimize the acquisition and retention, and prohibit
the dissemination, of nonpublicly available information concerning unconsenting
United States persons consistent with the need of the United States to obtain,
produce, and disseminate foreign intelligence information;
(2) procedures that require that nonpublicly available information, which
is not foreign intelligence information, as defined in subsection (e)(1) of this
section, shall not be disseminated in a manner that identifies any United States
person, without such person’s consent, unless such person’s identity is necessary
to understand foreign intelligence information or assess its importance;
(3) notwithstanding paragraphs (1) and (2), procedures that allow for the
retention and dissemination of information that is evidence of a crime which has
been, is being, or is about to be committed and that is to be retained or
(continued...)

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21 (...continued)
disseminated for law enforcement purposes; and
(4) notwithstanding paragraphs (1), (2), and (3), with respect to any
electronic surveillance approved pursuant to section 1802(a) of this title,
procedures that require that no contents of any communication to which a
United States person is a party shall be disclosed, disseminated, or used for any
purpose or retained for longer than 72 hours unless a court order under section
1805 of this title is obtained or unless the Attorney General determines that the
information indicates a threat of death or serious bodily harm to any person.
Sec. 314(a)(1) of H.Rept. 107-328, the conference report on the Intelligence Authorization
Act for Fiscal Year 2002 to accompany H.R. 2883, amended 50 U.S.C. § 1801(h)(4) to
change to 72 hours what was previously a 24 hour period beyond which the contents of any
communication to which a U.S. person is a party may not be retained absent a court order
under 50 U.S.C. § 1805 or a finding by the Attorney General that the information indicates
a threat of death or serious bodily injury. The conference version of H.R. 2883 received the
approbation of both houses of Congress, and was forwarded to the President on December
18, 2001, for his signature. Signed by the President ten days later, it became P.L. 107-108.
“United States person” is defined in 50 U.S.C. § 1801(i) to mean
a citizen of the United States, an alien lawfully admitted for permanent residence
(as defined in section 1101(a)(20) of Title 8), an unincorporated association a
substantial number of members of which are citizens of the United States or
aliens lawfully admitted for permanent residence, or a corporation which is
incorporated in the United States, but does not include a corporation or an
association which is a foreign power, as defined in subsection (a)(1), (2), or (3)
of this section.
“Foreign power” is defined in 50 U.S.C. § 1801(a) to mean:
(1) a foreign government or any component thereof, whether or not
recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of
United States persons;
(3) an entity that is openly acknowledged by a foreign government or
governments to be directed and controlled by such foreign government or
governments;
(4) a group engaged in international terrorism or activities in preparation
therefor;
(5) a foreign-based political organization, not substantially composed of
United States persons; or
(6) an entity that is directed and controlled by a foreign government or
governments.
“Agent of a foreign power” is defined in 50 U.S.C. § 1801(b) to mean:
(1) any person other than a United States person, who —
(A) acts in the United States as an officer or employee of a foreign
power, or as a member of a foreign power as defined in subsection (a)(4)
of this section;
(B) acts for or on behalf of a foreign power which engages in
(continued...)

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21 (...continued)
clandestine intelligence activities in the United States contrary to the
interests of the United States, when the circumstances of such person’s
presence in the United States indicate that such person may engage in such
activities in the United States, or when such person knowingly aids or abets
any person in the conduct of such activities or knowingly conspires with
any person to engage in such activities; or
(C) engages in international terrorism or activities in preparation
therefore
[sic]; or
(2) any person who —
(A) knowingly engages in clandestine intelligence gathering activities
for or on behalf of a foreign power, which activities involve or may involve
a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of
a foreign power, knowingly engages in any other clandestine intelligence
activities for or on behalf of such foreign power, which activities involve
or are about to involve a violation of the criminal statutes of the United
States;
(C) knowingly engages in sabotage or international terrorism, or
activities that are in preparation therefor, or on behalf of a foreign power;
or
(D) knowingly enters the United States under a false or fraudulent
identity for or on behalf of a foreign power or, while in the United States,
knowingly assumes a false or fraudulent identity for or on behalf of a
foreign power; or
(E) knowingly aids or abets any person in the conduct of activities
described in subparagraph (A), (B), or (C) or knowingly conspires with any
person to engage in activities described in subparagraph (A), (B), or (C).
The italicized language in 50 U.S.C. § 1801(b)(1)(C) was added to the definition of
“agent of a foreign power” in Section 6001 of the Intelligence Reform and Terrorism
Prevention Act of 2004, P.L. 108-458. This provision would be “subject to the sunset
provision in section 224 of the USA PATRIOT Act of 2001 (Public Law 107-56, 115 Stat.
295), including the exception provided in subsection (b) of such section 224.” The sunset
provision in Section 224 of P.L. 107-56, would take effect on December 31, 2005, except
for any foreign intelligence investigation begun before that date or any criminal offense or
potential offense that began or occurred before that date. For a more in depth discussion of
this so-called “lone wolf” provision, see CRS Report for Congress RS22011, Intelligence
Reform and Terrorism Prevention Act of 2004: “Lone Wolf” Amendment to the Foreign
Intelligence Surveillance Act
, by Elizabeth B. Bazan (December 29, 2004). For an
examination of this and other legislative measures related to FISA from the 108th Congress,
see CRS Report for Congress RL32608, Foreign Intelligence Surveillance Act: Selected
Legislation from the 108th Congress
, by Elizabeth B. Bazan (updated January 11, 2005).
Several other provisions of Intelligence Reform and Terrorism Prevention Act also
impacted FISA. Section 1011 of the measure amended Title I of the National Security Act
of 1947, 50 U.S.C. § 402 et seq., to strike the previous Sections 102 through 104 of the Act
50 U.S.C. §§ 403, 403-1, 403-3, and 403-4, and insert new Sections 102 through 104A. The
new Section 102 created the position of Director of National Intelligence (DNI). Section
102A outlined authorities and responsibilities of the position. Under the new Section
102A(f)(6) of the National Security Act, the DNI was given responsibility "to establish
requirements and priorities for foreign intelligence information to be collected under [FISA],
(continued...)

CRS-13
Second, in order for the President, through the Attorney General, to use this authority
. . . the Attorney General [must report] such minimization procedures and any
changes thereto to the House Permanent Select Committee on Intelligence and
the Senate Select Committee on Intelligence at least thirty days prior to their
effective date, unless the Attorney General determines immediate action is
required and notifies the committees immediately of such minimization and the
reason for their becoming effective immediately.
21 (...continued)
and provide assistance to the Attorney General to ensure that information derived from
electronic surveillance or physical searches under that act is disseminated so that it may be
used efficiently and effectively for foreign intelligence purposes, except that the Director
shall have no authority to direct, manage, or undertake electronic surveillance or physical
search operations pursuant to that act unless otherwise authorized by statute or Executive
order." New Section 102A(f)(8) of the National Security Act, as enacted by P.L. 108-458,
Section 1011, provided that, "Nothing in this act shall be construed as affecting the role of
the Department of Justice or the Attorney General with respect to applications under the
Foreign Intelligence Surveillance Act."
Section 1071(e) of P.L. 108-458, amended FISA to insert "Director of National
Intelligence" in lieu of "Director of Central Intelligence" in each place in which it appeared.
Section 6002 created additional semiannual reporting requirements under FISA. Under
the new language, the Attorney General, on a semiannual basis, must submit to the House
Permanent Select Committee on Intelligence, the Senate Select Committee on Intelligence,
the House Judiciary Committee and the Senate Judiciary Committee, in a manner consistent
with protection of national security, reports setting forth with respect to the preceding six
month period:
(1) the aggregate number of persons targeted for orders issued under this
Act, including a breakdown of those targeted for–
(A) electronic surveillance under section 105 [50 U.S.C. § 1805];
(B) physical searches under section 304 [50 U.S.C. § 1824];
(C) pen registers under section 402 [50 U.S.C. § 1842]; and
(D) access to records under section 501 [50 U.S.C. § 1861];
(2) the number of individuals covered by an order issued pursuant to section
101(b)(1)(C) [50 U.S.C. § 1801(b)(1)(C)];
(3) the number of times that the Attorney General has authorized that
information obtained under this Act may be used in a criminal proceeding or any
information derived therefrom may be used in a criminal proceeding;
(4) a summary of significant legal interpretations of this Act involving
matters before the Foreign Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review, including interpretations presented
in applications or pleadings filed with the Foreign Intelligence Surveillance
Court or the Foreign Intelligence Court of Review by the Department of Justice;
and
(5) copies of all decisions (not including orders) or opinions of the Foreign
Intelligence Surveillance Court or Foreign Intelligence Surveillance Court of
Review that include significant construction or interpretation of the provisions
of this Act.

CRS-14
Such electronic surveillance must be conducted only in accordance with the Attorney
General’s certification and minimization procedures adopted by him. A copy of his
certification must be transmitted by the Attorney General to the court established
under 50 U.S.C. § 1803(a) (hereinafter the FISC).22 This certification remains under
seal unless an application for a court order for surveillance authority is made under
50 U.S.C. §§ 1801(h)(4) and 1804,23 or the certification is necessary to determine the
legality of the surveillance under 50 U.S.C. § 1806(f).24 50 U.S.C. § 1802(a)(2) and
(a)(3).
In connection with electronic surveillance so authorized, the Attorney General
may direct a specified communications common carrier to furnish all information,
facilities, or technical assistance needed for the electronic surveillance to be
accomplished in a way that would protect its secrecy and minimize interference with
the services provided by the carrier to its customers. 50 U.S.C. § 1802(a)(4)(A). In
addition, the Attorney General may direct the specified communications common
carrier to maintain any records, under security procedures approved by the Attorney
General and the Director of National Intelligence, concerning the surveillance or the
assistance provided which the carrier wishes to retain. 50 U.S.C. § 1802(a)(4)(B).
Compensation at the prevailing rate must be made to the carrier by the Government
for providing such aid.
If the President, by written authorization, empowers the Attorney General to
approve applications to the FISC, an application for a court order may be made
pursuant to 50 U.S.C. § 1802(b). A judge receiving such an application may grant
an order under 50 U.S.C. § 1805 approving electronic surveillance of a foreign power
or an agent of a foreign power to obtain foreign intelligence information. There is
an exception to this, however. Under 50 U.S.C. § 1802(b), a court does not have
jurisdiction to grant an order approving electronic surveillance directed solely as
22 Under 50 U.S.C. § 1803(a), as amended by Section 208 of P.L. 107-56, the Chief Justice
of the United States must publicly designate eleven U.S. district court judges from seven of
the United States judicial circuits, of whom no fewer than three must reside within 20 miles
of the District of Columbia. These eleven judges constitute the court which has jurisdiction
over applications for and orders approving electronic surveillance anywhere within the
United States under FISA. If an application for electronic surveillance under this act is
denied by one judge of this court, it may not then be considered by another judge on the
court. If a judge denies such an application, he or she must immediately provide a written
statement for the record of the reason(s) for this decision. If the United States so moves, this
record must then be transmitted under seal to a court of review established under 50 U.S.C.
§ 1803(b). The Chief Justice also publicly designates the three U.S. district court or U.S.
court of appeals judges who together make up the court of review having jurisdiction to
review any denial of an order under FISA. If that court determines that an application was
properly denied, again a written record of the reason(s) for the court of review’s decision
must be provided for the record, and the United States may petition for a writ of certiorari
to the United States Supreme Court. All proceedings under this Act must be conducted
expeditiously, and the record of all proceedings including applications and orders granted,
must be maintained under security measures established by the Chief Justice in consultation
with the Attorney General and the Director of National Intelligence. 50 U.S.C. § 1803(c).
23 50 U.S.C. § 1804 is discussed at pages 15-19 of this report, infra.
24 50 U.S.C. § 1806 is discussed at pages 25-32 of this report, infra.

CRS-15
described in 50 U.S.C. § 1802(a)(1)(A) (that is, at acquisition of the contents of
communications transmitted by means of communications used exclusively between
or among foreign powers, or acquisition of technical intelligence, other than the
spoken communications of individuals, from property or premises under the open and
exclusive control of a foreign power), unless the surveillance may involve the
acquisition of communications of a United States person. 50 U.S.C. § 1802(b).
An application for a court order authorizing electronic surveillance for foreign
intelligence purposes may be sought under 50 U.S.C. § 1804. An application for
such a court order must be made by a federal officer in writing on oath or affirmation
to an FISC judge. The application must be approved by the Attorney General based
upon his finding that the criteria and requirements set forth in 50 U.S.C. § 1801 et
seq.
have been met. Section 1804(a) sets out what must be included in the
application:
(1) the identity of the Federal officer making the application;
(2) the authority conferred on the Attorney General by the President of the
United States and the approval of the Attorney General to make the application;
(3) the identity, if known, or a description of the target of the electronic
surveillance;
(4) a statement of the facts and circumstances relied upon by the applicant
to justify his belief that —
(A) the target of the electronic surveillance is a foreign power or an
agent of a foreign power; and
(B) each of the facilities or places at which the electronic surveillance
is directed is being used, or is about to be used, by a foreign power or an
agent of a foreign power;
(5) a statement of the proposed minimization procedures;
(6) a detailed description of the nature of the information sought and the
type of communications or activities to be subjected to the surveillance;
(7) a certification or certifications by the Assistant to the President for
National Security Affairs or an executive branch official or officials designated
by the President from among those executive officers employed in the area of
national security or defense and appointed by the President with the advice and
consent of the Senate25 —
(A) that the certifying official deems the information sought to be
foreign intelligence information;
25 Under Section 1-103 of Executive Order 12139, the Secretary of State, the Secretary of
Defense, the Director of Central Intelligence, the Director of the FBI, the Deputy Secretary
of State, the Deputy Secretary of Defense, and the Deputy Director of Central Intelligence
were designated to make such certifications in support of applications to engage in
electronic surveillance for foreign intelligence purposes. Neither these officials nor anyone
acting in those capacities may make such certifications unless they are appointed by the
President with the advice and consent of the Senate.

CRS-16
(B) that a significant26 purpose of the surveillance is to obtain foreign
26 Section 218 of P.L. 107-56 amended the requisite certifications to be made by the
Assistant to the President for National Security Affairs, or other designated official (see
footnote 25). Heretofore, the certifying official had to certify, among other things, that the
purpose of the electronic surveillance under FISA was to obtain foreign intelligence
information. Under the new language, the certifying official must certify that a significant
purpose of such electronic surveillance is to obtain foreign intelligence information. This
change may have the effect of somewhat blurring the line between electronic surveillance
for foreign intelligence purposes and that engaged in for criminal law enforcement purposes.
Indeed, as interpreted by the Court of Review in In re Sealed Case, 310 F.3d 717, 728-38
(U.S. Foreign Intell. Surveil.Ct. Rev. 2002), this language appears to exclude FISA as a
vehicle for authorizing electronic surveillance where the sole purpose of an investigation is
criminal prosecution. The government must have a measurable foreign intelligence purpose
other than criminal prosecution, even of foreign intelligence crimes, in order to satisfy the
“significant purpose” standard. The Court’s analysis appears to suggest that the primary
purpose of the investigation under FISA may be criminal prosecution, so long as collection
of foreign intelligence information is also a significant purpose of the electronic
surveillance. This issue was not addressed directly in the opinion of the U.S. Foreign
Intelligence Surveillance Court in In re All Matters Submitted to the Foreign Intelligence
Surveillance Court, 218 F. Supp. 2d 611( U.S. Foreign Intell. Surveil. Ct. 2002). Id., at 615
n.2. Both opinions are addressed later in this report in the section entitled “Recent
Decisions of the FISC and the U.S. Foreign Intelligence Surveillance Court of Review.”

Past cases considering the constitutional sufficiency of FISA in the context of
electronic surveillance have rejected Fourth Amendment challenges and due process
challenges under the Fifth Amendment to the use of information gleaned from a FISA
electronic surveillance in a subsequent criminal prosecution, because the purpose of the
FISA electronic surveillance, both initially and throughout the surveillance, was to secure
foreign intelligence information and not primarily oriented towards criminal investigation
or prosecution, United States v. Megahey, 553 F. Supp. 1180, 1185-1193 (D.N.Y.), aff’d 729
F.2d 1444 (2d Cir. 1982); United States v. Ott, 827 F.2d 473, 475 (9th Cir. 1987); United
States. v Badia, 827 F. 2d 1458, 1464 (11th Cir. 1987). See also, United States v. Johnson,
952 F.2d 565, 572 (1st Cir. 1991), rehearing and cert. denied, 506 U.S. 816 (1991) (holding
that, although evidence obtained in FISA electronic surveillance may later be used in a
criminal prosecution, criminal investigation may not be the primary purpose of the
surveillance, and FISA may not be used as an end-run around the 4th Amendment); United
States v. Pelton, 835 F.2d 1067, 1074-76 (4th Cir. 1987), cert. denied, 486 U.S.1010 (1987)
(holding that electronic surveillance under FISA passed constitutional muster where primary
purpose of surveillance, initially and throughout surveillance, was gathering of foreign
intelligence information; also held that an otherwise valid FISA surveillance was not
invalidated because later use of the fruits of the surveillance in criminal prosecution could
be anticipated. In addition, the court rejected Pelton’s challenge to FISA on the ground that
allowing any electronic surveillance on less than the traditional probable cause standard —
i.e. probable cause to believe the suspect has committed, is committing, or is about to
commit a crime for which electronic surveillance is permitted, and that the interception will
obtain communications concerning that offense — for issuance of a search warrant was
violative of the 4th Amendment, finding FISA’s provisions to be reasonable both in relation
to the legitimate need of Government for foreign intelligence information and the protected
rights of U.S. citizens ); United States v. Rahman, 861 F. Supp. 247, 251 (S.D. N.Y. 1994).
Cf., United States v. Bin Laden, 2001 U.S. Dist. LEXIS 15484 (S.D. N.Y., October 2, 2001);
United States v. Bin Laden, 126 F. Supp. 264, 277-78 (S.D. N.Y. 2000) (adopting foreign
intelligence exception to the warrant requirement for searches targeting foreign powers or
(continued...)

CRS-17
26 (...continued)
agents of foreign powers abroad; noting that this “exception to the warrant requirement
applies until and unless the primary purpose of the searches stops being foreign intelligence
collection. . . . If foreign intelligence collection is merely a purpose and not the primary
purpose of a search, the exception does not apply.”) Cf., United States v. Sarkissian, 841
F.2d 959, 964-65 (9th Cir. 1988) (FISA court order authorizing electronic surveillance, which
resulted in the discovery of plan to bomb the Honorary Turkish Consulate in Philadelphia,
and of the fact that bomb components were being transported by plane from Los Angeles.
The FBI identified the likely airlines, flight plans, anticipated time of arrival, and suspected
courier. Shortly before the arrival of one of those flights, the investigation focused upon an
individual anticipated to be a passenger on a particular flight meeting all of the previously
identified criteria. An undercover police officer spotted a man matching the suspected
courier’s description on that flight. The luggage from that flight was sniffed by a trained
dog and x-rayed. A warrantless search was conducted of a suitcase that had been shown by
x-ray to contain an unassembled bomb. Defendants unsuccessfully moved to suppress the
evidence from the FISA wiretap and the warrantless search. On appeal the court upheld the
warrantless suitcase search as supported by exigent circumstances. Defendants contended
that the FBI’s primary purpose for the surveillance had shifted at the time of the wiretap
from an intelligence investigation to a criminal investigation and that court approval for the
wiretap therefore should have been sought under Title III of the Omnibus Crime Control and
Safe Streets Act, 18 U.S.C. § 2510 et seq., rather than FISA. The court, while noting that
in other cases it had stated that “the purpose of [electronic] surveillance” under FISA “must
be to secure foreign intelligence information”, “not to ferret out criminal activity,” declined
to decide the issue of whether the standard under FISA required “the purpose” or “the
primary purpose” of the surveillance to be gathering of foreign intelligence information.
The court stated, “Regardless of whether the test is one of purpose or primary purpose, our
review of the government’s FISA materials convinces us that it is met in this case. . . . We
refuse to draw too fine a distinction between criminal and intelligence investigations.
“International terrorism ,” by definition, requires the investigation of activities that
constitute crimes. 50 U.S.C. § 1806(f). That the government may later choose to prosecute
is irrelevant. FISA contemplates prosecution based on evidence gathered through
surveillance. . . . “Surveillances . . . need not stop once conclusive evidence of a crime is
obtained, but instead may be extended longer where protective measures other than arrest
and prosecution are more appropriate.” S. Rep. No. 701, 95th Cong., 1st Sess. 11 . . .
.[(1978)]. . . .FISA is meant to take into account “the differences between ordinary criminal
investigations to gather evidence of specific crimes and foreign counterintelligence
investigations to uncover and monitor clandestine activities . . .” Id. . . . . At no point was
this case an ordinary criminal investigation.”). Cf., United States v. Falvey, 540 F. Supp.
1306 (E.D.N.Y. 1982) (distinguishing United States v. Truong Dinh Hung, 629 F.2d 908,
912-13 (4th Cir. 1980); and United States v. Butenko, 494 F.2d 593, 606 (3d Cir.) (en banc),
cert. denied sub nom, Ivanov v. United States, 419 U.S. 881 (1974), which held that, while
warrantless electronic surveillance for foreign intelligence purposes was permissible, when
the purpose or primary purpose of the surveillance is to obtain evidence of criminal activity,
evidence obtained by warrantless electronic surveillance is inadmissible at trial, 540 F.
Supp. at 1313; on the theory that the evidence in the case before it was obtained pursuant
to a warrant — a lawfully obtained court order under FISA, id. at 1314. The court noted that
the “bottom line of Truong is that evidence derived from warrantless foreign intelligence
searches will be admissible in a criminal proceeding only so long as the primary purpose of
the surveillance is to obtain foreign intelligence information.” Id. at 1313-14. After noting
that Congress, in enacting FISA, “expected that evidence derived from FISA surveillances
could then be used in a criminal proceeding,” the court concluded that “it was proper for the
FISA judge to issue the order in this case because of the on-going nature of the foreign
(continued...)

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intelligence information;
(C) that such information cannot reasonably be obtained by normal
investigative techniques;
(D) that designates the type of foreign intelligence information being
sought according to the categories described in 1801(e) of this title; and
(E) including a statement of the basis for the certification that —
(i) the information sought is the type of foreign intelligence
information designated; and
(ii) such information cannot reasonably be obtained by normal
investigative techniques;
(8) a statement of the means by which the surveillance will be effected and
a statement whether physical entry is required to effect the surveillance;
(9) a statement of the facts concerning all previous applications that have
been made to any judge under this subchapter involving any of the persons,
facilities, or places specified in the application, and the action taken on each
previous application;
(10) a statement of the period of time for which the electronic surveillance
is required to be maintained, and if the nature of the intelligence gathering is
such that the approval of the use of electronic surveillance under this subchapter
should not automatically terminate when the described type of information has
first been obtained, a description of facts supporting the belief that additional
information of the same type will be obtained thereafter; and
(11) whenever more that one electronic, mechanical or other surveillance
device is to be used with respect to a particular proposed electronic surveillance,
the coverage of the devices involved and what minimization procedures apply to
information acquired by each device.
26 (...continued)
intelligence investigation. . . . The fact that evidence of criminal activity was thereafter
uncovered during the investigation does not render the evidence inadmissible. There is no
question in [the court’s] mind that the purpose of the surveillance, pursuant to the order, was
the acquisition of foreign intelligence information. Accordingly, [the court found] that the
FISA procedures on their face satisfy the Fourth Amendment warrant requirement, and that
FISA was properly implemented in this case.” Id. at 1314.).
It is worthy of note that none of these decisions were handed down by the U.S. Foreign
Intelligence Surveillance Court or the U.S. Foreign Intelligence Surveillance Court of
Review. For a discussion of the recent decisions of those two courts regarding the Attorney
General’s 2002 minimization procedures, please see the discussion in the portion of this
report regarding “Recent Decisions of the FISC and the U.S. Foreign Intelligence
Surveillance Court of Review,” infra. Nor do these decisions of the U.S. district courts and
U.S. courts of appeal reflect recent legislative amendments to the FISA statute. However,
the FISC, in its decision, did not address potential Fourth Amendment implications, and the
U.S. Foreign Intelligence Court of Review, in its decision, appears to imply that some
Fourth Amendment issues in the FISA context may be non-justiciable. Alternatively, the
language in the Court of Review opinion might mean that the issue has not yet been
considered by the courts. Using a balancing test it derived from Keith between foreign
intelligence crimes and ordinary crimes, the Court of Review found surveillances under
FISA, as amended by the USA PATRIOT Act, to be reasonable and therefore constitutional,
while at the same time acknowledging that the constitutional question presented by the case
before it — “whether Congress’ disapproval of the primary purpose test is consistent with
the Fourth Amendment — has no definitive jurisprudential answer.” Court of Review op.,
301 F.3d at 746.

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The application for a court order need not contain the information required in
Subsections 1804(6), (7)(E), (8), and (11) above if the target of the electronic
surveillance is a foreign power and each of the facilities or places at which
surveillance is directed is owned, leased, or exclusively used by that foreign power.
However, in those circumstances, the application must indicate whether physical
entry is needed to effect the surveillance, and must also contain such information
about the surveillance techniques and communications or other information regarding
United States persons likely to be obtained as may be necessary to assess the
proposed minimization procedures. 50 U.S.C. § 1804(b).
Where an application for electronic surveillance under 50 U.S.C. § 1804(a)
involves a target described in 50 U.S.C. § 1801(b)(2),27 the Attorney General must
personally review the application if requested to do so, in writing, by the Director of
the Federal Bureau of Investigation, the Secretary of Defense, the Secretary of State,
or the Director of National Intelligence.28 The authority to make such a request may
not be delegated unless the official involved is disabled or otherwise unavailable.29
Each such official must make appropriate arrangements, in advance, to ensure that
such a delegation of authority is clearly established in case of disability or other
unavailability.30 If the Attorney General determines that an application should not
be approved, he must give the official requesting the Attorney General’s personal
review of the application written notice of the determination. Except in cases where
the Attorney General is disabled or otherwise unavailable, the responsibility for such
a determination may not be delegated. The Attorney General must make advance
plans to ensure that the delegation of such responsibility where the Attorney General
is disabled or otherwise unavailable is clearly established.31 Notice of the Attorney
General’s determination that an application should not be approved must indicate
what modifications, if any, should be made in the application needed to make it meet
with the Attorney General’s approval.32 The official receiving the Attorney General’s
notice of modifications which would make the application acceptable must modify
the application if the official deems such modifications warranted. Except in cases
of disability or other unavailability, the responsibility to supervise any such
modifications is also a non-delegable responsibility.33
If a judge makes the findings required under 50 U.S.C. § 1805(a), then he or she
must enter an ex parte order as requested or as modified approving the electronic
surveillance. The necessary findings must include that:
(1) the President has authorized the Attorney General to approve
applications for electronic surveillance for foreign intelligence information;
27 For a list of those covered in 50 U.S.C. § 1801(b)(2), see fn. 25, supra.
28 50 U.S.C. § 1804(e)(1)(A).
29 50 U.S.C. § 1804(e)(1)(B).
30 50 U.S.C. § 1804(e)(1)(C).
31 50 U.S.C. § 1804(e)(2)(A).
32 50 U.S.C. § 1804(e)(2)(B).
33 50 U.S.C. § 1804(e)(2)(C).

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(2) the application has been made by a Federal officer and approved by the
Attorney General;
(3) on the basis of the facts submitted by the applicant there is probable
cause to believe that —
(A) the target of the electronic surveillance is a foreign power or an
agent of a foreign power: Provided, That no United States person may be
considered a foreign power or an agent of a foreign power solely upon the
basis of activities protected by the first amendment to the Constitution of
the United States; and
(B) each of the facilities or places at which the electronic surveillance
is directed is being used, or is about to be used, by a foreign power or an
agent of a foreign power;
(4) the proposed minimization procedures meet the definition of
minimization procedures under section 1801(h) of this title; and
(5) the application which has been filed contains all statements and
certifications required by section 1804 of this title and, if the target is a United
States person, the certification or certifications are not clearly erroneous on the
basis of the statement made under section 1804(a)(7)(E) of this title and any
other information furnished under section 1804(d) of this title.
In making a probable cause determination under 50 U.S.C. § 1805(a)(3), the judge
may consider past activities of the target as well as facts and circumstances relating
to the target’s current or future activities.34 An order approving an electronic
surveillance under Section 1805(c) must:
(1) specify —
(A) the identity, if known, or a description of the target of the electronic
surveillance;
(B) the nature and location of each of the facilities or places at which the
electronic surveillance will be directed, if known;35
(C) the type of information sought to be acquired and the type of
communications or activities to be subjected to the surveillance;
(D) the means by which the electronic surveillance will be effected and
whether physical entry will be used to effect the surveillance;
(E) the period of time during which the electronic surveillance is approved;
and
(F) whenever more than one electronic, mechanical, or other surveillance
device is to be used under the order, the authorized coverage of the device
involved and what minimization procedures shall apply to information subject
to acquisition by each device; and
(2) direct —
(A) that the minimization procedures be followed;
(B) that, upon the request of the applicant a specified communication or
other common carrier, landlord, custodian, or other specified person, or in
circumstances where the Court finds that the actions of the target of the

34 50 U.S.C. § 1805(b).
35 Section 314(a)(2)(A) of H.Rept. 107-328, the conference report on the Intelligence
Authorization Act for Fiscal Year 2002, to accompany H.R. 2883, added “if known” to the
end of Section 1805(c)(1)(B) before the semi-colon. The conference version of the bill
passed both the House and the Senate, and was signed by the President on December 28,
2001, as P.L. 107-108.

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application may have the effect of thwarting the identification of a specified
person, such other persons,
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;
(C) that such carrier, landlord, custodian, or other person maintain under
security procedures approved by the Attorney General and the Director of
National Intelligence any records concerning the surveillance or the aid furnished
that such person wishes to retain; and
(D) that the applicant compensate, at the prevailing rate, such carrier,
landlord, custodian, or other person for furnishing such aid.36
The italicized portions of Section 1805(c)(1)(B) and Section 1805(c)(2)(B)
reflect changes, added by P.L. 107-108 and P.L. 107-56 respectively, intended to
provide authority for “multipoint” or “roving” electronic surveillance where the
actions of the target of the surveillance, such as switching phones and locations
repeatedly, may thwart that surveillance. The Conference Report on H.R. 2338, the
Intelligence Authorization Act for Fiscal Year 2002 (which became P.L. 107-108),
H.Rept. 107-328, at page 24, provided the following explanation of these changes:
The multipoint wiretap amendment to FISA in the USA PATRIOT Act
(section 206) allows the FISA court to issue generic orders of assistance to any
communications provider or similar person, instead of to a particular
communications provider. This change permits the Government to implement
new surveillance immediately if the FISA target changes providers in an effort
to thwart surveillance. The amendment was directed at persons who, for
example, attempt to defeat surveillance by changing wireless telephone providers
or using pay phones.
Currently, FISA requires the court to “specify” the “nature and location of
each of the facilities or places at which the electronic surveillance will be
directed.” 50 U.S.C. § 105(c)(1)(B). Obviously, in certain situations under
current law, such a specification is limited. For example, a wireless phone has
no fixed location and electronic mail may be accessed from any number of
locations.
To avoid any ambiguity and clarify Congress’ intent, the conferees agreed
to a provision which adds the phrase, “if known,” to the end of 50 U.S.C. §
1805(c)(1)(B). The “if known” language, which follows the model of 50 U.S.C.
§ 1805(c)(1)(A), is designed to avoid any uncertainty about the kind of
specification required in a multipoint wiretap case, where the facility to be
monitored is typically not known in advance.
36 50 U.S.C. § 1805(c). The italics in 50 U.S.C. § 1805(c)(2)(B), above, indicate new
language added by Section 206 of P.L. 107-56. Where circumstances suggest that a target’s
actions may prevent identification of a specified person, this new language appears to permit
the Foreign Intelligence Surveillance Court to require a service provider, other common
carrier, landlord, custodian or other persons to provide necessary assistance to the applicant
for a FISA order for electronic surveillance. The heading to Section 6 of P.L. 107-56 refers
to this as “roving surveillance authority.” H.Rept. 107-328 calls this a “multipoint” wiretap.
Intelligence Authorization Act for Fiscal Year 2002, 107th Cong., 1st Sess., H.Rept. 107-328,
Conference Report, at 24 (Dec. 6, 2001).

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If the target of the electronic surveillance is a foreign power and each of the
facilities or places at which the surveillance is directed is owned, leased, or
exclusively used by that foreign power, the order does not need to include the
information covered by Section 1805(c)(1)(C), (D), and (F), but must generally
describe the information sought, the communications or activities subject to
surveillance, the type of electronic surveillance used, and whether physical entry is
needed. 50 U.S.C. § 1805(d).
Such an order may approve an electronic surveillance for the period of time
necessary to achieve its purpose or for ninety days, whichever is less, unless the order
is targeted against a foreign power. In that event, the order shall approve an
electronic surveillance for the period specified in the order or for one year, whichever
is less. An order under FISA for surveillance targeted against an agent of a foreign
power who acts in the United States as an officer or employee of a foreign power, or
as a member of a group engaged in international terrorism or activities in preparation
therefor, may be for the period specified in the order or 120 days, whichever is less.37
Generally, upon application for an extension, a court may grant an extension of an
order on the same basis as an original order. An extension must include new findings
made in the same manner as that required for the original order. However, an
extension of an order for a surveillance targeting a foreign power that is not a United
States person may be for a period of up to one year if the judge finds probable cause
to believe that no communication of any individual United States person will be
acquired during the period involved. In addition, an extension of an order for
surveillance targeted at an agent of a foreign power who acts in the United States as
an officer or employee of a foreign power or as a member of a group engaged in
international terrorism or activities in preparation therefore may be extended to a
period not exceeding one year. 50 U.S.C. § 1805(e)(2)(A) and (B).38
37 50 U.S.C. § 1805(e)(1)(B), as added by Section 207 of P.L. 107-56.
38 Section 207 of P.L. 107-56 appears to have included a mistaken citation here, referring
to 50 U.S.C. § 1805(d)(2) instead of 50 U.S.C. § 1805(e)(2) (emphasis added). Section
314(c)(1) of P.L. 107-108 corrected the apparent error from P.L. 107-56, Section 207, so
that the reference is now to 50 U.S.C. § 1805(e)(2).

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Emergency situations are addressed in 50 U.S.C. § 1805(f).39 Notwithstanding
other provisions of this subchapter, if the Attorney General reasonably determines
that an emergency situation exists with respect to the employment of electronic
surveillance to obtain foreign intelligence information before an order authorizing
such surveillance can with due diligence be obtained and that the factual basis for
issuance of an order under this subchapter to approve such surveillance exists, he
may authorize electronic surveillance if specified steps are taken. At the time of the
Attorney General’s emergency authorization, he or his designee must inform an FISC
judge that the decision to employ emergency electronic surveillance has been made.
An application for a court order under Section 1804 must be made to that judge as
soon as practicable, but not more than 72 hours after the Attorney General authorizes
such surveillance. If the Attorney General authorizes emergency electronic
surveillance, he must require compliance with the minimization procedures required
for the issuance of a judicial order under this subchapter. Absent a judicial order
approving the emergency electronic surveillance, the surveillance must terminate
when the information sought is obtained, when the application for the order is denied,
or after 72 hours from the time of the Attorney General’s authorization, whichever
is earliest.40 If no judicial order approving the surveillance is issued, the information
garnered may not be received in evidence or otherwise disclosed in any court
39 50 U.S.C. § 1805(g) authorizes officers, employees, or agents of the United States to
conduct electronic surveillance in the normal course of their official duties to test electronic
equipment, to determine the existence and capability of equipment used for unauthorized
electronic surveillance, or to train intelligence personnel in the use of electronic surveillance
equipment. Under 50 U.S.C. § 1805(h), the certifications of the Attorney General pursuant
to 50 U.S.C. § 1802(a) and applications made and orders granted for electronic surveillance
under FISA must be retained for at least 10 years.
Section 225 of P.L. 107-56 appears to create a second subsection 1805(h), which
precludes any cause of action in any court “against any provider of a wire or electronic
communication service, landlord, custodian, or other person (including any officer,
employee, agent, or other specified person thereof) that furnishes any information, facilities,
or technical assistance in accordance with a court order or request for emergency assistance”
under FISA. This immunity provision is included in 50 U.S.C. § 1805, and was
denominated “Immunity for Compliance with FISA Wiretap” in Section 225 of the USA
PATRIOT Act, both facts which might lead one to conclude that it applied only to electronic
surveillance under FISA, but this does not appear to be the view of expressed in H.Rept.
107-328, the conference report accompanying H.R. 2883, which became P.L. 107-108. P.L.
107-108 redesignated 50 U.S.C. § 1805(h) as 50 U.S.C. § 1805(i). In H.Rept. 107-328, the
conferees expressed the view that “the text of section 225 refers to court orders and requests
for emergency assistance ‘under this act,’ which makes clear that it applies to physical
searches (and pen-trap requests — for which there already exists an immunity provision, 50
U.S.C. § 1842(f) — and subpoenas) as well as electronic surveillance.” Id. at 25.
Section 314(a)(2)(C) of P.L. 107-108 changed subsection (h), which was added to 50
U.S.C. § 1805 by Section 225 of P.L. 107-56, to subsection (i). In addition, Section
314(a)(2)(D) of P.L. 107-108 added “for electronic surveillance or physical search” to the
end of the newly designated 50 U.S.C. § 1805(i) before the final period.
40 Section 314(a)(2)(B) of P.L. 107-108, the Intelligence Authorization Act for Fiscal Year
2002, H.Rept. 107-328, replaced 24 hours with 72 hours in each place that it appears in 50
U.S.C. § 1805(f).

CRS-24
proceeding, or proceeding in or before any grand jury, department, office, agency,
regulatory body, legislative committee, or other authority of the United States, a
State, or political subdivision thereof. No information concerning any United States
person acquired through such surveillance may be disclosed by any Federal officer
or employee without the consent of that person, unless the Attorney General approves
of such disclosure or use where the information indicates a threat of death or serious
bodily harm to any person.41
41 Some of the provisions dealing with interception of wire, oral, or electronic
communications in the context of criminal law investigations, 18 U.S.C. §§ 2510 et seq.,
may also be worthy of note. With certain exceptions, these provisions, among other things,
prohibit any person from engaging in intentional interception; attempted interception; or
procuring others to intercept or endeavor to intercept wire, oral, or electronic
communication; or intentional disclosure; attempting to disclose; using or endeavoring to
use the contents of a wire, oral or electronic communication, knowing or having reason to
know that the information was obtained by such an unlawful interception. 18 U.S.C. § 2511.
“Person” is defined in 18 U.S.C. § 2510(6) to include “any employee, or agent of the United
States or any State or political subdivision thereof, and any individual, partnership,
association, joint stock company, trust, or corporation.” Among the exceptions to Section
2511 are two of particular note:
(2)(e) Notwithstanding any other provision of this title or section 705 or
706 of the Communications Act of 1934, it shall not be unlawful for an officer,
employee, or agent of the United States in the normal course of his official duty
to conduct electronic surveillance, as defined in section 101 of the Foreign
Intelligence Surveillance Act of 1978, as authorized by that Act.
(2)(f) Nothing contained in this chapter or chapter 121, or section 705 of
the Communications Act of 1934, shall be deemed to affect the acquisition by the
United States Government of foreign intelligence information from international
or foreign communications, or foreign intelligence activities conducted in
accordance with otherwise applicable Federal law involving a foreign electronic
communications system, utilizing a means other than electronic surveillance as
defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and
procedures in this chapter and the Foreign Intelligence Surveillance Act of 1978
shall be the exclusive means by which electronic surveillance, as defined in
section 101 of such Act, and the interception of domestic wire and oral
communications may be conducted.
Among other things, Section 2512 prohibits any person from intentionally
manufacturing, assembling, possessing, or selling any electronic, mechanical, or other
device, knowing that its design renders it primarily useful for the purpose of the
surreptitious interception of wire, oral, or electronic communications and that such device
or any component thereof has been or will be sent through the mail or transported in
interstate or foreign commerce. It also prohibits any person from intentionally sending such
a device through the mail or sending or carrying such a device in interstate or foreign
commerce, knowing that such surreptitious interception is its primary purpose. Similarly,
intentionally advertising such a device, knowing or having reason to know that the
advertisement will be sent through the mail or transported in interstate or foreign commerce
is foreclosed. Again an exception to these general prohibitions in Section 2512 may be of
particular interest:
(2) It shall not be unlawful under this section for —
(continued...)

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The uses to which information gathered under FISA may be put are addressed
under 50 U.S.C. § 1806.42 Under these provisions, disclosure, without the
41 (...continued)
(a) . . .
(b) an officer, agent, or employee of, or a person under contract with,
the United States . . . in the normal course of the activities of the United
States . . .,
to send through the mail, send or carry in interstate or foreign commerce, or
manufacture, assemble, possess, or sell any electronic, mechanical, or other
device knowing or having reason to know that the design of such device renders
it primarily useful for the purpose of the surreptitious interception of wire, oral,
or electronic communications.
In addition, Section 107 of the Electronic Communications Privacy Act of 1986, P.L.
99-508, 100 Stat. 1858, October 21, 1986, [which enacted 18 U.S.C. §§ 1367, 2621, 2701
to 2711, 3117, and 3121 to 3126; and amended 18 U.S.C. §§ 2232, 2511-2513, and 2516-
2520], provided generally that, “[n]othing in this act or the amendments made by this act
constitutes authority for the conduct of any intelligence activity.” It also stated:
(b) Certain Activities Under Procedures Approved by the Attorney
General.— Nothing in chapter 119 [interception of wire, oral or electronic
communications] or chapter 121 [stored wire and electronic communications and
transactional records access] of title 18, United States Code, shall affect the
conduct, by officers or employees of the United States Government in
accordance with other applicable Federal law, under procedures approved by the
Attorney General of activities intended to —
(1) intercept encrypted or other official communications of United
States executive branch entities or United States Government contractors
for communications security purposes;
(2) intercept radio communications transmitted between or among
foreign powers or agents of a foreign power as defined by the Foreign
Intelligence Surveillance Act of 1978 [50 U.S.C. § 1801 et seq.]; or
(3) access an electronic communication system used exclusively by
a foreign power or agent of a foreign power as defined by the Foreign
Intelligence Surveillance Act of 1978 [50 U.S.C. § 1801 et seq.].
In addition, Chapter 121 of title 18 of the United States Code deals with stored wire
and electronic communications and transactional records. Under 18 U.S.C. § 2701,
intentionally accessing without authorization a facility through which an electronic
communication service is provided, or intentionally exceeding an authorization to access
such a facility and thereby obtaining, altering, or preventing authorized access to a wire or
electronic communication while it is in electronic storage in such system is prohibited.
Upon compliance with statutory requirements in 18 U.S.C. § 2709, the Director of the FBI
or his designee in a position not lower than Deputy Assistant Director may seek access to
telephone toll and transactional records for foreign counterintelligence purposes. The FBI
may disseminate information and records obtained under this section only as provided in
guidelines approved by the Attorney General for foreign intelligence collection and foreign
counterintelligence investigations conducted by the FBI, and, “with respect to dissemination
to an agency of the United States, only if such information is clearly relevant to the
authorized responsibilities of such agency.” 18 U.S.C. § 2709(d).
42 The provisions of Section 1806 are as follows:
(continued...)

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42 (...continued)
(a) Compliance with minimization procedures; privileged communications;
lawful purposes
Information acquired from an electronic surveillance conducted pursuant
to this subchapter concerning any United States person may be used and
disclosed by Federal officers and employees without the consent of the United
States person only in accordance with the minimization procedures required by
this subchapter. No otherwise privileged communication obtained in accordance
with or in violation of this subchapter shall lose its privileged character. No
information acquired from an electronic surveillance pursuant to this subchapter
may be used or disclosed by Federal officers or employees except for lawful
purposes.
(b) Statement for disclosure
No information acquired pursuant to this subchapter shall be disclosed for
law enforcement purposes unless such disclosure is accompanied by a statement
that such information, or any information derived therefrom, may only be used
in a criminal proceeding with the advance authorization of the Attorney General.
(c) Notification by United States
Whenever the Government intends to enter into evidence or otherwise use
or disclose in any trial, hearing, or other proceeding in or before any court,
department, officer, agency, regulatory body, or other authority of the United
States, against an aggrieved person, any information obtained or derived from an
electronic surveillance of that aggrieved person pursuant to the authority of this
subchapter, the Government shall, prior to the trial, hearing, or other proceeding
or at a reasonable time prior to an effort to so disclose or so use that information
or submit it in evidence, notify the aggrieved person and the court or other
authority in which the information is to be disclosed or used that the Government
intends to so disclose or so use such information.
(d) Notification by States or political subdivisions
Whenever any State or political subdivision thereof intends to enter into
evidence or otherwise use or disclose in any trial, hearing, or other proceeding
in or before any court, department, officer, agency, regulatory body, or other
authority of a State or a political subdivision thereof, against an aggrieved person
any information obtained or derived from an electronic surveillance of that
aggrieved person pursuant to the authority of this subchapter, the State or
political subdivision thereof shall notify the aggrieved person, the court or other
authority in which the information is to be disclosed or used, and the Attorney
General that the State or political subdivision thereof intends to so disclose or so
use such information.
(e) Motion to suppress
Any person against whom evidence obtained or derived from an electronic
surveillance to which he is an aggrieved person is to be, or has been, introduced
or otherwise used or disclosed in any trial, hearing, or other proceeding in or
before any court, department, officer, agency, regulatory body, or other authority
of the United States, a State, or a political subdivision thereof, may move to
suppress the evidence obtained or derived from such electronic surveillance on
the grounds that —
(1) the information was unlawfully acquired; or
(2) the surveillance was not made in conformity with an order of
authorization or approval.
Such a motion shall be made before the trial, hearing, or other proceeding unless
there was no opportunity to make such a motion or the person was not aware of
(continued...)

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42 (...continued)
the grounds of the motion.
(f) In camera and ex parte review by district court
Whenever a court or other authority is notified pursuant to subsection (c)
or (d) of this section, or whenever a motion is made pursuant to subsection (e)
of this section, or whenever any motion or request is made by an aggrieved
person pursuant to any other statute or rule of the United States or any State
before any court or other authority of the United States or any State to discover
or obtain applications or orders or other materials relating to electronic
surveillance or to discover, obtain, or suppress evidence or information obtained
or derived from electronic surveillance under this chapter, the United States
district court or, where the motion is made before another authority, the United
States district court in the same district as the authority, shall, notwithstanding
any other law, if the Attorney General files an affidavit under oath that disclosure
or an adversary hearing would harm the national security of the United States,
review in camera and ex parte the application, order, and such other materials
relating to the surveillance as may be necessary to determine whether the
surveillance of the aggrieved person was lawfully authorized and conducted. In
making this determination, the court may disclose to the aggrieved person, under
appropriate security procedures and protective orders, portions of the application,
order, or other materials relating to the surveillance only where such disclosure
is necessary to make an accurate determination of the legality of the surveillance.
(g) Suppression of evidence; denial of motion
If the United States district court pursuant to subsection (f) of this section
determines that the surveillance was not lawfully authorized or conducted, it
shall, in accordance with the requirements of law, suppress the evidence which
was unlawfully obtained or derived from electronic surveillance of the aggrieved
person or otherwise grant the motion of the aggrieved person. If the court
determines that the surveillance was lawfully authorized and conducted, it shall
deny the motion of the aggrieved person except to the extent that due process
requires discovery or disclosure.
(h) Finality of orders
Orders granting motions or requests under subsection (g) of this section,
decisions under this section that electronic surveillance was not lawfully
authorized or conducted, and orders of the United States district court requiring
review or granting disclosure of applications, orders, or other materials relating
to a surveillance shall be final orders and binding upon all courts of the United
States and the several States except a United States court of appeals and the
Supreme Court.
(i) Destruction of unintentionally acquired information
In circumstances involving the unintentional acquisition by an electronic,
mechanical, or other surveillance device of the contents of any radio
communication, under circumstances in which a person has a reasonable
expectation of privacy and a warrant would be required for law enforcement
purposes, and if both the sender and all intended recipients are located within the
United States, unless the Attorney General determines that the contents indicate
a threat of death or serious bodily harm to any person.
(j) Notification of emergency employment of electronic surveillance; contents;
postponement, suspension or elimination
If an emergency employment of electronic surveillance is authorized under
section 1805(e) of this title and a subsequent order approving the surveillance is
not obtained, the judge shall cause to be served on any United States person
(continued...)

CRS-28
consent of the person involved, of information lawfully acquired under FISA which
concerns a United States person must be in compliance with the statutorily mandated
minimization procedures. Communications which were privileged when intercepted
remain privileged. Where information acquired under FISA is disclosed for law
enforcement purposes, neither that information nor any information derived therefrom
may be used in a criminal proceeding without prior authorization of the Attorney
General. If the United States Government intends to disclose information acquired
under FISA or derived therefrom in any proceeding before a court, department, officer
regulatory body or other authority of the United States against an aggrieved person,43
42 (...continued)
named in the application or on such other United States persons subject to
electronic surveillance as the judge may determine in his discretion it is in the
interest of justice to serve, notice of —
(1) the fact of the application;
(2) the period of the surveillance; and
(3) the fact that during the period information was or was not
obtained.
On an ex parte showing of good cause to the judge the serving of the notice
required by this subsection may be postponed or suspended for a period not to
exceed ninety days. Thereafter, on a further ex parte showing of good cause, the
court shall forgo ordering the serving of the notice required under this
subsection.
(k) Consultation with Federal law enforcement officer
(1) Federal officers who conduct electronic surveillance to acquire foreign
intelligence information under this title may consult with Federal law
enforcement officers or law enforcement personnel of a State or political
subdivision of a State (including the chief executive officer of that State or
political subdivision who has the authority to appoint or direct the chief law
enforcement officer of that State or political subdivision)
to coordinate efforts to
investigate or protect against —
(A) actual or potential attack or other grave hostile acts of a foreign power
or an agent of a foreign power;
(B) sabotage or international terrorism by a foreign power or an agent of a
foreign power; or
(C) clandestine intelligence activities by an intelligence service or network
of a foreign power or by an agent of a foreign power.
(2) Coordination authorized under paragraph (1) shall not preclude the
certification required by section 104(a)(7)(B) [50 U.S.C. § 1804(a)(7)(B) (referring to
a certification by the Assistant to the President for National Security Affairs or other
designated certifying authority “that a significant purpose of the surveillance is to
obtain foreign intelligence information”)] or the entry of an order under section 105
[50 U.S.C. § 1805].
(Emphasis added.) Subsection 1806(k) was added by Section 504 of P.L. 107-56. The
italicized portion of subsection 1806(k)(1), above, was added by Section 898 of the
Homeland Security Act of 2002, P.L. 107-296. The term “aggrieved person,” as used in
connection with electronic surveillance under FISA, is defined under 50 U.S.C. § 1801(k)
to mean “a person who is the target of an electronic surveillance or any other person whose
communications or activities were subject to electronic surveillance.”
43 For the definition of “aggrieved person” as that term is used with respect to targets of
(continued...)

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then the Government must give prior notice of its intent to disclose to the aggrieved
person and to the court or other authority involved. Similarly, a State or political
subdivision of a State that intends to disclose such information against an aggrieved
person in a proceeding before a State or local authority must give prior notice of its
intent to the aggrieved person, the court or other authority, and the Attorney
General.44
43 (...continued)
electronic surveillance under FISA, see fn. 42, supra.
44 It is worthy of note that Section 892 of the Homeland Security Act of 2002, P.L. 107-296,
while not expressly amending FISA, addressed procedures for the sharing of homeland
security information. It required the President to prescribe and implement procedures under
which relevant federal agencies, including those in the intelligence community, would share
relevant and appropriate homeland security information with other federal agencies and,
where appropriate, with State and local personnel. Section 892 provided, in part:
Sec. 892. Facilitating Homeland Security Information Sharing Procedures.
(a) Procedures for Determining Extent of Sharing of Homeland Security
Information. —
(1) The President shall prescribe and implement procedures under
which relevant Federal agencies —
(A) share relevant and appropriate homeland security
information with other Federal agencies, including the Department,
and appropriate State and local personnel;
(B) identify and safeguard homeland security information that
is sensitive but unclassified; and
(C) to the extent that such information is in classified form,
determine whether, how, and to what extent to remove classified
information, as appropriate, and with which such personnel it may be
shared after such information is removed.
(2) The President shall ensure that such procedures apply to all
agencies of the Federal Government.
(3) Such procedures shall not change the substantive requirements for
the classification and safeguarding of classified information.
(4) Such procedures shall not change the requirements and authorities
to protect sources and methods.
(b) Procedures for Sharing of Homeland Security Information. —
(1) Under procedures prescribed by the President, all appropriate
agencies, including the intelligence community, shall, through information
sharing systems, share homeland security information with Federal
agencies and appropriate State and local personnel to the extent such
information may be shared, as determined in accordance with subsection
(a), together with assessments of the credibility of such information.
(2) Each information sharing system through which information is
shared under paragraph (1) shall —
(A) have the capability to transmit unclassified or classified
information, though the procedures and recipients for each capability
may differ;
(B) have the capability to restrict delivery of information to
specified subgroups by geographic location, type of organization,
(continued...)

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Section 1806 also sets out in camera and ex parte district court review
procedures to be followed where such notification is received, or where the aggrieved
person seeks to discover or obtain orders or applications relating to FISA electronic
44 (...continued)
position of a recipient within an organization, or a recipient’s need to
know such information;
(C) be configured to allow the efficient and effective sharing of
information; and
(D) be accessible to appropriate State and local personnel.
(3) The procedures prescribed in paragraph (1) shall establish
conditions on the use of information shared under paragraph (1) —
(A) to limit the redissemination of such information to ensure
that such information is not used for an unauthorized purpose;
(B) to ensure the security and confidentiality of such
information;
(C) to protect the constitutional and statutory rights of any
individuals who are subjects of such information; and
(D) to provide data integrity through the timely removal and
destruction of obsolete or erroneous names and information.
(4) . . . .
(5) Each appropriate Federal agency, as determined by the President,
shall have access to each information sharing system through which
information is shared under paragraph (1), and shall therefore have access
to all information, as appropriate, shared under such paragraph.
(6) The procedures prescribed under paragraph (1) shall ensure that
appropriate State and local personnel are authorized to use such
information systems —
(A) to access information shared with such personnel; and
(B) to share, with others who have access to such information
sharing systems, the homeland security information of their own
jurisdictions, which shall be marked appropriately as pertaining to
potential terrorist activity.
(7) Under procedures prescribed jointly by the Director of National
Intelligence and the Attorney General, each appropriate Federal agency, as
determined by the President, shall review and assess the information shared
under paragraph (6) and integrate such information with existing
intelligence.
. . . .
Subsection (f)(1) of Section 892 of P.L. 107-296, defined “homeland security
information” to mean “information possessed by a Federal, State, or local agency” that
“relates to the threat of terrorist activity;” “relates to the ability to prevent, interdict, or
disrupt terrorist activity;” “would improve the identification or investigation of a suspected
terrorist or terrorist organization;” “or would improve the response to a terrorist act.” “State
and local personnel” is defined to mean persons involved in prevention, preparation, or
response for terrorist attack who fall within the following categories: “State Governors,
mayors, and other locally elected officials;” “State and local law enforcement personnel and
firefighters;” “public health and medical professionals;” “regional, State, and local
emergency management agency personnel, including State adjutant generals;” “other
appropriate emergency response agency personnel;” and “employees of private-sector
entities that affect critical infrastructure, cyber, economic, or public health security, as
designated by the Federal Government in procedures developed pursuant to this section.”

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surveillance, or to discover, obtain, or suppress evidence or information obtained or
derived from the electronic surveillance, and the Attorney General files an affidavit
under oath that such disclosure would harm U.S. national security. The focus of this
review would be to determine whether the surveillance was lawfully conducted and
authorized. Only where needed to make an accurate determination of these issues
does the section permit the court to disclose to the aggrieved person, under
appropriate security measures and protective orders, parts of the application, order,
or other materials related to the surveillance. If, as a result of its review, the district
court determines that the surveillance was unlawful, the resulting evidence must be
suppressed.45 If the surveillance was lawfully authorized and conducted, the motion
of the aggrieved person must be denied except to the extent that due process requires
discovery or disclosure. Resultant court orders granting motions or requests of the
aggrieved person for a determination that the surveillance was not lawfully conducted
or authorized and court orders requiring review or granting disclosure are final orders
binding on all Federal and State courts except a U.S. Court of Appeals and the U.S.
Supreme Court.
45 But see, United States v. Thomson, 752 F. Supp. 75, 77 (W.D. N.Y. 1990), stating that,
If the Court determines that the surveillance was unlawfully authorized or
conducted, it must order disclosure of the FISA material. 50 U.S.C. § 1806(g)
. . . . In United States v. Belfield, 692 F.2d 141 (D.C. Cir. 1982), the court stated
that “even when the government has purported not to be offering any evidence
obtained or derived from the electronic surveillance, a criminal defendant may
claim that he has been the victim of an illegal surveillance and seek discovery of
the FISA surveillance material to ensure that no fruits thereof are being used
against him.” Id. at 146.
It may be noted that the Section 1806(g) does not state that a court must order
disclosure of the FISA material if the court finds that the FISA electronic surveillance was
unlawfully authorized or conducted. Rather, the provision in question states in pertinent
part that, “If the United States district court pursuant to subsection (f) of this section
determines that the surveillance was not lawfully authorized or conducted, it shall, in
accordance with the requirements of law, suppress the evidence which was unlawfully
obtained or derived from electronic surveillance of the aggrieved person or otherwise grant
the motion of the aggrieved person. . . .” While a district court will normally consider in
camera and ex parte a motion to suppress under Subsection 1806(e) or other statute or rule
to discover, disclose, or suppress information relating to a FISA electronic surveillance,
Subsection 1806(f) does permit a district court, in determining the legality of a FISA
electronic surveillance, to disclose to the aggrieved person, under appropriate security
procedures and protective orders, portions of the application, order or other materials
relating to the surveillance only to the extent necessary to make an accurate determination
of the legality of the surveillance. Belfield indicated that a criminal defendant may seek to
discover FISA surveillance material to ensure that no fruits of an illegal surveillance are
being used against him, but it appears to stop short of saying that in every instance where
the court finds an illegal surveillance disclosure must be forthcoming. “The language of
section 1806(f) clearly anticipates that an ex parte, in camera determination is to be the rule.
Disclosure and an adversary hearing are the exception, occurring only when necessary.”
Belfield, supra, 692 F.2d at 147. See also, United States v. Squillacote, 221 F.3d 542, 552-
554 (4th Cir. 2000), cert. denied, 532 U.S. 971 (2001).

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If the contents of any radio communication are unintentionally acquired by an
electronic, mechanical, or other surveillance device in circumstances where there is
a reasonable expectation of privacy and where a warrant would be required if the
surveillance were to be pursued for law enforcement purposes, then the contents must
be destroyed when recognized, unless the Attorney General finds that the contents
indicate a threat of death or serious bodily harm to any person.
As noted above, Section 1805 provides for emergency electronic surveillance in
limited circumstances, and requires the subsequent prompt filing of an application for
court authorization to the FISC in such a situation. Under Section 1806, if the
application is unsuccessful in obtaining court approval for the surveillance, notice
must be served upon any United States person named in the application and such
other U.S. persons subject to electronic surveillance as the judge determines, in the
exercise of his discretion, is in the interests of justice. This notice includes the fact
of the application, the period of surveillance, and the fact that information was or was
not obtained during this period. Section 1806 permits postponement or suspension
of service of notice for up to ninety days upon ex parte good cause shown. Upon a
further ex parte showing of good cause thereafter, the court will forego ordering such
service of notice.
P.L. 107-56, Section 504, added a new subsection 1806(k)(1). Under this new
subsection, federal officers who conduct electronic surveillance to acquire foreign
intelligence under FISA are permitted to consult with Federal law enforcement
officers to coordinate investigative efforts or to protect against —
(A) actual or potential attack or other grave hostile acts of a foreign power
or an agent of a foreign power;
(B) sabotage or international terrorism by a foreign power or an agent of a
foreign power; or
(C) clandestine intelligence activities by an intelligence service or network
of a foreign power or by an agent of a foreign power.
This new subsection indicates further that such coordination would not preclude
certification as required by 50 U.S.C. § 1804(a)(7)(B) or entry of a court order under
50 U.S.C. § 1805.
Reporting requirements are included in Sections 1807 and 1808. Under Section
1807, each year in April, the Attorney General is directed to transmit to the
Administrative Office of the United States Courts and to the Congress a report
covering the total number of applications made for orders and extensions of orders
approving electronic surveillance under FISA during the previous year, and the total
number of orders and extensions granted, modified, or denied during that time period.
Section 1808(a) requires the Attorney General to fully inform the House Permanent
Select Committee on Intelligence and the Senate Select Committee on Intelligence
semiannually about all electronic surveillance under FISA.46 Each such report must
46 Subsection 1808(b) directed these committees to report annually for five years after the
date of enactment to the House and the Senate respectively concerning implementation of
FISA, including any recommendations for amendment, repeal, or continuation without
(continued...)

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contain a description of each criminal case in which information acquired under FISA
“has been passed for law enforcement purposes” during the period covered by the
report, and each criminal case in which information acquired under FISA has been
authorized to be used at trial during the reporting period.47
Section 6002 of P.L. 108-458, the Intelligence Reform and Terrorism Prevention
Act of 2004, created additional semiannual reporting requirements under FISA.
Under the new language, the Attorney General, on a semiannual basis, must submit
to the House Permanent Select Committee on Intelligence, the Senate Select
Committee on Intelligence, the House Judiciary Committee and the Senate Judiciary
Committee, in a manner consistent with protection of national security, reports setting
forth with respect to the preceding six month period:
(1) the aggregate number of persons targeted for orders issued under this
Act, including a breakdown of those targeted for–
(A) electronic surveillance under section 105 [50 U.S.C. § 1805];
(B) physical searches under section 304 [50 U.S.C. § 1824];
(C) pen registers under section 402 [50 U.S.C. § 1842]; and
(D) access to records under section 501 [50 U.S.C. § 1861];
(2) the number of individuals covered by an order issued pursuant to section
101(b)(1)(C) [50 U.S.C. § 1801(b)(1)(C)];
(3) the number of times that the Attorney General has authorized that
information obtained under this Act may be used in a criminal proceeding or any
information derived therefrom may be used in a criminal proceeding;
(4) a summary of significant legal interpretations of this Act involving
matters before the Foreign Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review, including interpretations presented in
applications or pleadings filed with the Foreign Intelligence Surveillance Court
or the Foreign Intelligence Court of Review by the Department of Justice; and
(5) copies of all decisions (not including orders) or opinions of the Foreign
Intelligence Surveillance Court or Foreign Intelligence Surveillance Court of
Review that include significant construction or interpretation of the provisions
of this Act.48
Section 1809 provides criminal sanctions for intentionally engaging in electronic
surveillance under color of law except as authorized by statute; or for disclosing or
using information obtained under color of law by electronic surveillance, knowing or
having reason to know that surveillance was not authorized by statute. The provision
makes it a defense to prosecution under this subsection if the defendant is a law
46 (...continued)
amendment. P.L. 106-567, Title VI, Sec. 604(b) (Dec. 27, 2000), 114 Stat. 2853, required
the Attorney General to submit to the Senate Select Committee on Intelligence, the Senate
Judiciary Committee, the House Permanent Select Committee on Intelligence, and the House
Judiciary Committee a report on the authorities and procedures utilized by the Department
of Justice to determine whether or not to disclose information acquired under FISA for law
enforcement purposes. 50 U.S.C. § 1806 note.
47 50 U.S.C. § 1808(a)(2).
48 These new reporting requirements were added to the Foreign Intelligence Surveillance
Act, as amended, as a new Title VI of the Act.

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enforcement officer or investigative officer in the course of his official duties and the
electronic surveillance was authorized by and conducted under a search warrant or
court order of a court of competent jurisdiction. Section 1809 provides for Federal
jurisdiction over such an offense if the defendant is a Federal officer or employee at
the time of the offense. Civil liability is also provided for under Section 1810, where
an aggrieved person, who is neither a foreign power nor an agent of a foreign power,
has been subjected to electronic surveillance, or where information gathered by
electronic surveillance about an aggrieved person has been disclosed or used in
violation of Section 1809.
Finally, Section 1811 provides that, notwithstanding any other law, the
President, through the Attorney General, may authorize electronic surveillance
without a court order to acquire foreign intelligence information for up to 15 calendar
days following a declaration of war by Congress.
Physical searches for foreign intelligence gathering purposes.
Physical searches for foreign intelligence purposes are addressed in 50 U.S.C. § 1821
et seq.49 While tailored for physical searches, the provisions in many respects follow
a pattern similar to that created for electronic surveillance. The definitions from 50
U.S.C. § 1801 for the terms “foreign power,” “agent of a foreign power,”
“international terrorism,” “sabotage,” “foreign intelligence information,” “Attorney
General,” “United States person,” “United States,” “person,” and “State” also apply
to foreign intelligence physical searches except where specifically provided
otherwise. A “physical search” under this title means:
any physical intrusion within the United States into premises or property
(including examination of the interior of property by technical means) that is
intended to result in seizure, reproduction, inspection, or alteration of
information, material, or property, under circumstances in which a person has a
reasonable expectation of privacy and a warrant would be required for law
enforcement purposes, but does not include (A) “electronic surveillance”, as
defined in section 1801(f) of this title [50 U.S.C.], or (B) the acquisition by the
United States Government of foreign intelligence information from international
or foreign communications, or foreign intelligence activities conducted in
accordance with otherwise applicable Federal law involving a foreign electronic
communications system, utilizing a means other than electronic surveillance as
defined in section 1801(f) of this title.50
Minimization procedures also apply to physical searches for foreign intelligence
purposes. Those defined under 50 U.S.C. § 1821(4) are tailored to such physical
searches and, like those applicable to electronic surveillance under 50 U.S.C. §
1801(h), these procedures are designed to minimize acquisition and retention, and to
prohibit dissemination, of nonpublicly available information concerning unconsenting
49 The physical search provisions of FISA were added as Title III of that Act by P.L. 103-
359, Title VIII, on October 14, 1994, 108 Stat. 3443. Some of these provisions were
subsequently amended by P.L. 106-567, Title VI, on December 27, 2000, 114 Stat. 2852-53;
and by P.L. 107-56.
50 50 U.S.C. § 1821(5).

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U.S. persons, consistent with the needs of the United States to obtain, produce and
disseminate foreign intelligence.51
Under 50 U.S.C. § 1822, the President, acting through the Attorney General may
authorize physical searches to acquire foreign intelligence information without a court
order for up to one year if the Attorney General certifies under oath that the search is
solely directed at premises, property, information or materials owned by or under the
open and exclusive control of a foreign power or powers.52 For these purposes,
“foreign power or powers” means a foreign government or component of a foreign
government, whether or not recognized by the United States, a faction of a foreign
nation or nations, not substantially composed of U.S. persons; or an entity that is
openly acknowledged by a foreign government or governments to be directed and
controlled by such foreign government or governments.53 In addition, the Attorney
General must certify that there is no substantial likelihood that the physical search
will involve the premises, information, material or property of a U.S. person, and that
the proposed minimization procedures with respect to the physical search are
51 Specifically, 50 U.S.C. § 1821(4) defines “minimization procedures” with respect to
physical search to mean:
(A) specific procedures, which shall be adopted by the Attorney General,
that are reasonably designed in light of the purposes and technique of the
particular physical search, to minimize the acquisition and retention, and
prohibit the dissemination, of nonpublicly available information concerning
unconsenting United States persons consistent with the need of the United States
to obtain, produce, and disseminate foreign intelligence information;
(B) procedures that require that nonpublicly available information, which
is not foreign intelligence information, as defined in section 1801(e)(1) of this
title, shall not be disseminated in a manner that identifies any United States
person, without such person’s consent, unless such person’s identity is necessary
to understand such foreign intelligence information or assess its importance;
(C) notwithstanding subparagraphs (A) and (B), procedures that allow for
the retention and dissemination of information that is evidence of a crime which
has been, is being, or is about to be committed and that is to be retained or
disseminated for law enforcement purposes; and
(D) notwithstanding subparagraphs (A), (B), and (C), with respect to any
physical search approved pursuant to section 1822(a) of this title, procedures that
require that no information, material, or property of a United States person shall
be disclosed, disseminated, or used for any purpose or retained for longer than
72 hours, unless a court order under section 1824 of this title is obtained or
unless the Attorney General determines that the information indicates a threat of
death or serious bodily harm to any person.
Section 314(a)(3) of P.L. 107-108, the Intelligence Authorization Act of 2002, changed the
previous 24 hour period in the minimization procedures under 50 U.S.C. § 1821(4)(D) to
a 72 hour period.
52 The President provided such authority to the Attorney General by Executive Order 12949,
Section 1, 60 Fed. Reg. 8169 (February 9, 1995), if the Attorney General makes the
certifications necessary under 50 U.S.C. § 1822(a)(1).
53 See 50 U.S.C. § 1801(a)(1), (2), or (3).

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consistent with 50 U.S.C. § 1821(4)(1)-(4).54 Under normal circumstances, these
minimization procedures and any changes to them are reported to the House
Permanent Select Committee on Intelligence and the Senate Select Committee on
Intelligence by the Attorney General at least 30 days before their effective date.
However, if the Attorney General determines that immediate action is required, the
statute mandates that he advise these committees immediately of the minimization
procedures and the need for them to become effective immediately. In addition, the
Attorney General must assess compliance with these minimization procedures and
report such assessments to these congressional committees.
The certification of the Attorney General for a search under 50 U.S.C. § 1822
is immediately transmitted under seal to the Foreign Intelligence Surveillance Court,
and maintained there under security measures established by the Chief Justice of the
United States with the Attorney General’s concurrence, in consultation with the
Director of National Intelligence. Such a certification remains under seal unless one
of two circumstances arise: (1) either an application for a court order with respect to
the physical search is made to the Foreign Intelligence Surveillance Court under 50
U.S.C. § 1821(4) (dealing with minimization procedures) and § 1823 (dealing with
the process by which a federal officer, with the approval of the Attorney General, may
apply for an order from the FISC approving a physical search for foreign intelligence
gathering purposes); or (2) the certification is needed to determine the legality of a
physical search under 50 U.S.C. § 1825 (dealing with use of the information so
gathered).
In connection with physical searches under 50 U.S.C. § 1822, the Attorney
General may direct a landlord, custodian or other specified person to furnish all
necessary assistance needed to accomplish the physical search in a way that would
both protect its secrecy and minimize interference with the services such person
provides the target of the search. Such person may also be directed to maintain any
records regarding the search or the aid provided under security procedures approved
by the Attorney General and the Director of National Intelligence. The provision of
any such aid must be compensated by the Government.55 As in the case of
applications for electronic surveillance under FISA, the Foreign Intelligence
Surveillance Court (FISC) has jurisdiction to hear applications and grant applications
with respect to physical searches under 50 U.S.C. § 1821 et seq. No FISC judge may
hear an application already denied by another FISC judge. If an application for an
order authorizing a physical search under FISA is denied, the judge denying the
application must immediately provide a written statement of reasons for the denial.
If the United States so moves, the record is then transmitted under seal to the court
of review established under 50 U.S.C. § 1803(b). If the court of review determines
that the application was properly denied, it, in turn, must provide a written statement
of the reasons for its decision, which must be transmitted under seal to the Supreme
54 While this is the citation cross-referenced in Section 1822, it appears that the cross-
reference should read 50 U.S.C. § 1821(4)(A)-(D).
55 50 U.S.C. § 1822(a)(4).

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Court upon petition for certiorari by the United States.56 Any of the proceedings with
respect to an application for a physical search under FISA must be conducted
expeditiously, and the record of such proceedings must be kept under appropriate
security measures.
The requirements for application for an order for a physical search under FISA
are included in 50 U.S.C. § 1823. While tailored to a physical search, the
requirements strongly parallel those applicable to electronic surveillance under 50
U.S.C. § 1804(a)(1)-(9).57 Like Section 1804(a)(7)(B) with respect to required
56 50 U.S.C. § 1822(c), (d).
57 Each application for an order approving such a physical search, having been approved by
the Attorney General based upon his understanding that the application satisfies the criteria
and requirements of 50 U.S.C. § 1821 et seq., must be made by a Federal officer in writing
upon oath or affirmation to a FISC judge. Under subsection (a) of Section 1823, the
application must include:
(1) the identity of the Federal officer making the application;
(2) the authority conferred on the Attorney General by the President and the
approval of the Attorney General to make the application;
(3) the identity, if known, or a description of the search, and a detailed
description of the premises or property to be searched and of the information,
material, or property to be seized, reproduced, or altered;
(4) a statement of the facts and circumstances relied upon by the applicant
to justify the applicant’s belief that —
(A) the target of the physical search is a foreign power or an agent of
a foreign power;
(B) the premises or property to be searched contains foreign
intelligence information; and
(C) the premises or property to be searched is owned, used, possessed
by, or is in transit to or from a foreign power or an agent of a foreign
power;
(5) a statement of the proposed minimization procedures;
(6) a statement of the nature of the foreign intelligence sought and the
manner in which the physical search is to be conducted;
(7) a certification or certifications by the Assistant to the President for
National Security Affairs or an executive branch official or officials designated
by the President from among those executive branch officers employed in the
area of national security or defense and appointed by the President, by and with
the advice and consent of the Senate —
(A) that the certifying official deems the information sought to be
foreign intelligence information;
(B) that a significant purpose of the search is to obtain foreign
intelligence information;
(C) that such information cannot reasonably be obtained by normal
investigative techniques;
(D) that designates the type of foreign intelligence information being
sought according to the categories described in section 1801(e) of this title;
and
(E) includes a statement explaining the basis for the certifications
required by subparagraphs (C) and (D);
(continued...)

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certifications for an application for electronic surveillance under FISA, Section
1823(a)(7)(B) was amended by P.L. 107-56, Section 218, to require that the Assistant
to the President for National Security Affairs or designated Executive Branch
official58 certify, among other things, that a significant purpose (rather than “that the
purpose”) of the physical search is to obtain foreign intelligence information.59
Section 1823(d) also parallels Section 1804(e) (dealing with requirements for some
applications for electronic surveillance under FISA), in that, if requested in writing
by the Director of the FBI, the Secretary of Defense, the Secretary of State, or the
57 (...continued)
(8) where the physical search involves a search of the residence of a United
States person, the Attorney General shall state what investigative techniques
have previously been utilized to obtain the foreign intelligence information
concerned and the degree to which these techniques resulted in acquiring such
information; and
(9) a statement of the facts concerning all previous applications that have
been made to any judge under this subchapter involving any of the persons,
premises, or property specified in the application, and the action taken on each
previous application. (Emphasis added.)
Under Section 1823(b), the Attorney General may require any other affidavit or
certification from any other officer in connection with an application for a physical search
that he deems appropriate. Under Section 1823(c), the FISC judge to whom the application
is submitted may also require that the applicant provide other information as needed to make
the determinations necessary under 50 U.S.C. § 1824.
58 In Section 2 of E.O. 12949, 60 Fed. Reg. 8169 (February 9, 1995), the President
authorized the Attorney General to approve applications to the Foreign Intelligence
Surveillance Court under 50 U.S.C. § 1823, to obtain court orders for physical searches for
the purpose of collecting foreign intelligence information. In Section 3 of that executive
order, the President designated the Secretary of State, the Secretary of Defense, the Director
of Central Intelligence, the Director of the Federal Bureau of Investigation, the Deputy
Secretary of State, the Deputy Secretary of Defense, and the Deputy Director of Central
Intelligence to make the certifications required by 50 U.S.C. § 1823(a)(7), in support of an
application for a court order for a physical search for foreign intelligence purposes. None
of these officials may exercise this authority to make the appropriate certifications unless
he or she is appointed by the President, with the advice and consent of the Senate.
59 Section 303(a)(7)(B) of FISA, 50 U.S.C. § 1823(a)(7)(B) (see italicized language in the
quote of the statutory section in fn. 57, supra). Extrapolating from the U.S. Foreign
Intelligence Surveillance Court of Review’s interpretation of the “significant purpose”
language as applied to electronic surveillance under FISA in In re Sealed Case, 310 F.3d
717, 728-38 (U.S. Foreign Intell. Surveil. Ct. Rev. 2002), this language appears to exclude
FISA as authority for a physical search where the sole purpose of an investigation is
criminal prosecution. The government must have a measurable foreign intelligence purpose
other than criminal prosecution, even of foreign intelligence crimes, in order to satisfy the
“significant purpose” standard. This reasoning suggests that the primary purpose of the
investigation may be criminal prosecution, so long as collection of foreign intelligence
information is also a significant purpose of the search. As in the case of the change from
“the purpose” to “a significant purpose” in the case of electronic surveillance, the parallel
language change in Section 1823 with respect to physical searches may also have the effect
of blurring the distinction between physical searches for foreign intelligence purposes and
those engaged in for law enforcement purposes.

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Director of National Intelligence,60 the Attorney General must personally review an
application for a FISA physical search if the target is one described by Section
1801(b)(2). 50 U.S.C. § 1801(b)(2) deals with targets who knowingly engage in
clandestine intelligence gathering activities involving or possibly involving violations
of federal criminal laws by or on behalf of a foreign power; targets who, at the
direction of an intelligence service or network of a foreign power, engage in other
clandestine intelligence activities involving or potentially involving federal crimes by
or on behalf of a foreign power; targets who knowingly engage in sabotage or
international terrorism, activities in preparation for sabotage or international
terrorism, or activities on behalf of a foreign power; targets who knowingly aid, abet,
or conspire with anyone to engage in any of the previously listed categories of
activities; or targets who knowingly enter the United States under false identification
by or on behalf or a foreign power or who assume a false identity on behalf of a
foreign power while present in the United States.61
Should the Attorney General, after reviewing an application, decide not to
approve it, he must provide written notice of his determination to the official
requesting the review of the application, setting forth any modifications needed for
the Attorney General to approve it. The official so notified must supervise the
making of the suggested modifications if the official deems them warranted. Unless
the Attorney General or the official involved is disabled or otherwise unable to carry
out his or her respective responsibilities under Section 1823, those responsibilities are
non-delegable.
As in the case of the issuance of an order approving electronic surveillance under
50 U.S.C. § 1805(a), certain findings by the FISC judge are required before an order
may be forthcoming authorizing a physical search for foreign intelligence information
under 50 U.S.C. § 1824(a). Once an application under Section 1823 has been filed,
an FISC judge must enter an ex parte order, either as requested or as modified,
approving the physical search if the requisite findings are made. These include
findings that:
(1) the President has authorized the Attorney General to approve
applications for physical searches for foreign intelligence purposes;
(2) the application has been made by a Federal officer and approved by the
Attorney General;
(3) on the basis of the facts submitted by the applicant there is probable
cause to believe that —
(A) the target of the physical search is a foreign power or an agent of
a foreign power, except that no United States person may be considered an
agent of a foreign power solely on the basis of activities protected by the
first amendment to the Constitution of the United States; and
(B) the premises or property to be searched is owned, used, possessed
by, or is in transit to or from an agent of a foreign power or a foreign power;
60 The authority of these officials to make such a written request is non-delegable except
where such official is disabled or unavailable. Each must make provision in advance for
delegation of this authority should he or she become disabled or unavailable. 50 U.S.C. §
1823(d)(1)(B) and (C).
61 See fn. 21, supra.

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(4) the proposed minimization procedures meet the definition of
minimization contained in this subchapter; and
(5) the application which has been filed contains all statements and
certifications required by section 1823 of this title, and, if the target is a United
States person, the certification or certifications are not clearly erroneous on the
basis of the statement made under section 1823(a)(7)(E) of this title and any other
information furnished under section 1823(c) of this title.
Like Section 1805(b) regarding electronic surveillance under FISA, a FISC judge
making a probable cause determination under Section 1824 may consider the target’s
past activities, plus facts and circumstances pertinent to the target’s present or future
activities.62
As in the case of an order under 50 U.S.C. § 1805(c) with respect to electronic
surveillance, an order granting an application for a physical search under FISA must
meet statutory requirements in 50 U.S.C. § 1824(c) as to specifications and directions.
An order approving a physical search must specify:
(A) the identity, if known, or a description of the target of the physical
search;
(B) the nature and location of each of the premises of property to be
searched;
(C) the type of information, material, or property to be seized, altered, or
reproduced;
(D) a statement of the manner in which the physical search is to be
conducted and, whenever more than one physical search is authorized under the
order, the authorized scope of each search and what minimization procedures
shall apply to the information acquired by each search; and
(E) the period of time during which the physical searches are approved; . .
. .
In addition, the order must direct:
(A) that the minimization procedures be followed;
(B) that, upon the request of the applicant, a specified landlord, custodian,
or other specified person furnish the applicant forthwith all information,
facilities, or assistance necessary to accomplish the physical search in such a
manner as will protect its secrecy and produce a minimum of interference with
the services that such landlord, custodian, or other person is providing to the
target of the physical search;
(C) that such landlord, custodian, or other person maintain under security
procedures approved by the Attorney General and the Director of National
Intelligence63 any records concerning the search or the aid furnished that such
person wishes to retain;
(D) that the applicant compensate, at the prevailing rate, such landlord,
custodian, or other person for furnishing such aid; and
62 50 U.S.C. § 1824(b).
63 Section 1071(e) replaced “Director of Central Intelligence” with “Director of National
Intelligence” in each place where it appeared in FISA. This was one of those locations.

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(E) that the federal officer conducting the physical search promptly report
to the court the circumstances and results of the physical search.64
Subsection 1824(d) sets the limits on the duration of orders under this section
and makes provision for extensions of such orders if certain criteria are met.65
Subsection 1824(e) deals with emergency orders for physical searches. It permits the
Attorney General, under certain circumstances, to authorize execution of a physical
search if the Attorney General or his designee informs a FISC judge that the decision
to execute an emergency search has been made, and an application under 50 U.S.C.
§ 1821 et seq. is made to that judge as soon as possible, within 72 hours66 after the
Attorney General authorizes the search. The Attorney General’s decision to authorize
such a search must be premised upon a determination that “an emergency situation
exists with respect to the execution of a physical search to obtain foreign intelligence
64 50 U.S.C. § 1824(c)(1), (2).
65 P.L. 107-56, Section 207(a)(2), amended 50 U.S.C. § 1824(d)(1) so that it provided:
(1) An order under this section may approve a physical search for the
period necessary to achieve its purpose, or for 90 days, whichever is less, except
that (A) an order under this section shall approve a physical search targeted
against a foreign power, as defined in paragraph (1), (2), or (3) of section 101(a)
[50 U.S.C. § 1801(b)(1)(A)], for the period specified in the application or for one
year, whichever is less, and (B) an order under this section for a physical search
against an agent of a foreign power as defined in section 101(b)(1)(A) [50 U.S.C.
§ 1801(b)(1)(A)] may be for the period specified in the application or for 120
days, whichever is less
.
The language in italics reflects the changes made by P.L. 107-56. The 90 day time period
reflected in the first sentence replaced earlier language which provided for 45 days.
Section 207(b)(2) of P.L. 107-56 amended 50 U.S.C. § 1824(d)(2) to provide:
(2) Extensions of an order issued under this title [50 U.S.C. §§ 1821 et
seq.] may be granted on the same basis as the original order upon an application
for an extension and new findings made in the same manner as required for the
original order, except that an extension of an order under this Act for a physical
search targeted against a foreign power, as defined in section 101(a)(5) or (6) [50
U.S.C. § 1801(a)(5) or (6)], or against a foreign power, as defined in section
101(a)(4) [50 U.S.C. § 1801(a)(4)] , that is not a United States person, or against
an agent of a foreign power as defined in section 101(b)(1)(A) [50 U.S.C. §
1801(b)(1)(A)],
may be for a period not to exceed one year if the judge finds
probable cause to believe that no property of any individual United States person
will be acquired during the period.
(Emphasis added.) Under subsection 1824(d)(3), the judge, at or before the end of the time
approved for a physical search or for an extension, or at any time after the physical search
is carried out, may review circumstances under which information regarding U.S. persons
was acquired, retained, or disseminated to assess compliance with minimization techniques.
66 Section 314(a)(4) of the Intelligence Authorization Act for Fiscal Year 2002, P.L. 107-
108, amended 50 U.S.C. § 1824(e) by striking “24 hours” where it occurred and replacing
it with “72 hours.”

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information before an order authorizing such search can with due diligence be
obtained,” and “the factual basis for issuance of an order under this title [50 U.S.C.
§ 1821 et seq.] to approve such a search exists.”67 If such an emergency search is
authorized by the Attorney General, he must require that the minimization procedures
required for issuance of a judicial order for a physical search under 18 U.S.C. § 1821
et seq. be followed.68 If there is no judicial order for a such a physical search, then
the search must terminate on the earliest of the date on which the information sought
is obtained, the date on which the application for the order is denied, or the expiration
of the 72 hour period from the Attorney General’s authorization of the emergency
search.69 If an application for approval is denied or if the search is terminated and no
order approving the search is issued, then neither information obtained from the
search nor evidence derived from the search may be used in evidence or disclosed in
any
. . . trial, hearing, or other proceeding in or before any court, grand jury,
department, office, agency, regulatory body, legislative committee, or other
authority of the United States, a State, or political subdivision thereof, and no
information concerning any United States person acquired from such search shall
subsequently be used or disclosed in any other manner by Federal officers or
employees without the consent of such person, except with the approval of the
Attorney General, if the information indicates a threat of death or serious bodily
harm to any person. A denial of the application made under this subsection may
be reviewed as provided in section 302 [50 U.S.C. § 1822].70
Subsection 1824(f) requires retention of applications made and orders granted under
50 U.S.C. § 1821 et seq., for a minimum of 10 years from the date of the application.
Like 50 U.S.C. § 1806 with respect to electronic surveillance under FISA, 50
U.S.C. § 1825 restricts and regulates the uses of information secured under a FISA
physical search. Such information may only be used or disclosed by Federal officers
or employees for lawful purposes. Federal officers and employees must comply with
minimization procedures if they use or disclose information gathered from a physical
search under FISA concerning a United States person.71 If a physical search involving
the residence of a United States person is authorized and conducted under 50 U.S.C.
§ 1824, and at any time thereafter the Attorney General determines that there is no
national security interest in continuing to maintain the search’s secrecy, the Attorney
General must provide notice to the United States person whose residence was
searched. This notice must include both the fact that the search pursuant to FISA was
conducted and the identification of any property of that person which was seized,
67 50 U.S.C. § 1824(e)(1)(A)(i) and (ii). See fn.66, supra, regarding substitution of “72
hours” for “24 hours” in Subsection 50 U.S.C. § 1824(e)(3)(C) by P.L. 107-108, Sec.
314(a)(4).
68 50 U.S.C. § 1824(e)(2).
69 50 U.S.C. § 1824(e)(3).
70 50 U.S.C. § 1824(e)(4).
71 50 U.S.C. § 1825(a).

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altered, or reproduced during the search.72 Disclosure for law enforcement purposes
of information acquired under 50 U.S.C. § 1821 et seq., must be accompanied by a
statement that such information and any derivative information may only be used in
a criminal proceeding with advance authorization from the Attorney General.73
The notice requirements relevant to intended use or disclosure of information
gleaned from a FISA physical search or derivative information, are similar to those
applicable where disclosure or use of information garnered from electronic
surveillance is intended. If the United States intends to use or disclose information
gathered during or derived from a FISA physical search in a trial, hearing, or other
proceeding before a court, department, officer, agency, regulatory body or other
authority of the United States against an aggrieved person, the United States must
first give notice to the aggrieved person, and the court or other authority.74 Similarly,
if a State or political subdivision of a state intends to use or disclose any information
obtained or derived from a FISA physical search in any trial, hearing, or other
proceeding before a court, department, officer, agency, regulatory body, or other State
or political subdivision against an aggrieved person, the State or locality must notify
the aggrieved person, the pertinent court or other authority where the information is
to be used, and the Attorney General of the United States of its intention to use or
disclose the information.75 An aggrieved person may move to suppress evidence
obtained or derived from a FISA physical search on one of two grounds: that the
information was unlawfully acquired; or that the physical search was not made in
conformity with an order of authorization or approval. Such a motion to suppress
must be made before the trial, hearing or other proceeding involved unless the
aggrieved person had no opportunity to make the motion or was not aware of the
grounds of the motion.76
In camera, ex parte review by a United States district court may be triggered by
receipt of notice under Subsections 1825(d) or (e) by a court or other authority; the
making of a motion to suppress by an aggrieved person under Subsection 1825(f); or
the making of a motion or request by an aggrieved person under any other federal or
state law or rule before any federal or state court or authority to discover or obtain
applications, orders, or other materials pertaining to a physical search authorized
under FISA or to discover, obtain, or suppress evidence or information obtained or
derived from a FISA physical search. If the Attorney General files an affidavit under
oath that disclosure of any adversary hearing would harm U.S. national security, the
U.S. district court receiving notice or before whom a motion or request is pending,
or, if the motion is made to another authority, the U.S. district court in the same
district as that authority, shall review in camera and ex parte the application, order,
72 50 U.S.C. § 1825(b).
73 50 U.S.C. § 1825(c).
74 50 U.S.C. § 1825(d). “Aggrieved person,” as defined in 50 U.S.C. § 1821(2), “means a
person whose premises, property, information, or material is the target of a physical search
or any other person whose premises, property, information, or material was subject to
physical search.”
75 50 U.S.C. § 1825(e).
76 50 U.S.C. § 1825(f).

CRS-44
and such other materials relating to the physical search at issue needed to determine
whether the physical search of the aggrieved person was lawfully authorized and
conducted. If the court finds it necessary to make an accurate determination of the
legality of the search, the court may disclose portions of the application, order, or
other pertinent materials to the aggrieved person under appropriate security
procedures and protective orders, or may require the Attorney General to provide a
summary of such materials to the aggrieved person.77
If the U.S. district court makes a determination that the physical search was not
lawfully authorized or conducted, then it must “suppress the evidence which was
unlawfully obtained or derived from the physical search of the aggrieved person or
otherwise grant the motion of the aggrieved person.” If, on the other hand, the court
finds that the physical search was lawfully authorized or conducted, the motion of the
aggrieved person will be denied except to the extent that due process requires
discovery or disclosure.78
If the U.S. district court grants a motion to suppress under 50 U.S.C. § 1825(h);
deems a FISA physical search unlawfully authorized or conducted; or orders review
or grants disclosure of applications, orders or other materials pertinent to a FISA
physical search, that court order is final and binding on all federal and state courts
except a U.S. Court of Appeals or the U.S. Supreme Court.79
As a general matter, where an emergency physical search is authorized under 50
U.S.C. § 1824(d), and a subsequent order approving the resulting search is not
obtained, any U.S. person named in the application and any other U.S. persons subject
to the search that the FISC judge deems appropriate in the interests of justice must be
served with notice of the fact of the application and the period of the search, and must
be advised as to whether information was or was not obtained during that period.80
However, such notice may be postponed or suspended for a period not to exceed 90
days upon an ex parte showing of good cause to the judge, and, upon further good
cause shown, the court must forego such notice altogether.81
Section 504(b) of P.L. 107-56, added a new 50 U.S.C. § 1825(k) to the statute,
which deals with consultation by federal officers doing FISA searches with federal
law enforcement officers. Section 899 of the Homeland Security Act of 2002, P.L.
107-296 expanded this authority to also permit consultation with “law enforcement
personnel of a State or political subdivision of a State (including the chief executive
officer of that State or political subdivision who has the authority to appoint or direct
the chief law enforcement officer of that State or political subdivision).” Under this
new language, as amended, federal officers “who conduct physical searches to acquire
77 50 U.S.C. § 1825(g).
78 50 U.S.C. § 1825(h).
79 50 U.S.C. § 1825(i).
80 50 U.S.C. § 1825(j)(1).
81 50 U.S.C. § 1825(j)(2).

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foreign intelligence information” under 50 U.S.C. § 1821 et seq., may consult with
federal law enforcement officers or state or local law enforcement personnel:
. . . to coordinate efforts to investigate or protect against
(A) actual or potential attack or other grave hostile acts of a foreign power
or an agent of a foreign power;
(B) sabotage or international terrorism by a foreign power or an agent of a
foreign power; or

(C) clandestine intelligence activities by an intelligence service or network
of a foreign power or by an agent of a foreign power.82
Such coordination does not preclude certification required under 50 U.S.C. §
1823(a)(7) or entry of an order under 50 U.S.C. § 1824.83
50 U.S.C. § 1826 provides for semiannual congressional oversight of physical
searches under FISA.84 The Attorney General is directed to “fully inform” the
Permanent Select Committee on Intelligence of the House of Representatives and the
Select Committee on Intelligence of the Senate with respect to all physical searches
conducted under 50 U.S.C. § 1821 et seq. Also on a semiannual basis, the Attorney
General is required to provide a report to those committees and to the House and
Senate Judiciary Committees setting forth: the total number of applications for orders
approving FISA physical searches during the preceding six month period; the total
number of those orders granted, modified, or denied; the number of such physical
searches involving the residences, offices, or personal property of United States
persons; and the number of occasions, if any, the Attorney General gave notice under
50 U.S.C. § 1825(b).85
Section 1827 imposes criminal sanctions for intentionally executing a physical
search for foreign intelligence gathering purposes under color of law within the
United States except as authorized by statute. In addition, criminal penalties attach
to a conviction for intentionally disclosing or using information obtained by a
physical search under color of law within the United States for the purpose of
gathering intelligence information, where the offender knows or has reason to know
that the information was obtained by a physical search not authorized by statute. In
either case, this section provides that a person convicted of such an offense faces a
fine of not more than $10,000,86 imprisonment for not more than five years or both.
Federal jurisdiction attaches where the offense is committed by an officer or
82 50 U.S.C. § 1825(k)(1).
83 50 U.S.C. § 1825(k)(2).
84 See also the discussion of new reporting requirements added by Section 6002 of P.L. 108-
458, the Intelligence Reform and Terrorism Prevention Act of 2004, discussed at fn. 48,
supra, and accompanying text.
85 See fn. 72, supra, and accompanying text.
86 This section was added in 1994 as Title III, Section 307 of P.L. 95-511, by P.L. 103-359,
Title VIII, § 807(a)(3), 108 Stat. 3452. If a fine were to be imposed under the general fine
provisions 18 U.S.C. § 3571, rather than under the offense provision, the maximum fine
would be $250,000 for an individual.

CRS-46
employee of the United States. It is a defense to such a prosecution if the defendant
was a law enforcement or investigative officer engaged in official duties and the
physical search was authorized and conducted pursuant to a search warrant or court
order by a court of competent jurisdiction.
In addition, an aggrieved person other than a foreign power or an agent of a
foreign power as defined under section 1801(a) or 1801(b)(1)(A),87 whose premises,
property, information, or material within the United States was physically searched
under FISA; or about whom information obtained by such a search was disclosed or
used in violation of 50 U.S.C. § 1827, may bring a civil action for actual damages,
punitive damages, and reasonable attorney’s fees and other investigative and litigation
costs reasonably incurred.88
In times of war, the President, through the Attorney General, may authorize
physical searches under FISA without a court order to obtain foreign intelligence
information for up to 15 days following a declaration of war by Congress.89
Pen registers or trap and trace devices90 used for foreign
intelligence gathering purposes. Title IV of FISA, 50 U.S.C. § 1841 et seq.,
was added in 1998, amended by P.L. 107-56,91 and amended further by Section
314(5) of P.L. 107-108. Under 50 U.S.C. § 1842(a)(1), notwithstanding any other
provision of law, the Attorney General or a designated attorney for the Government
may apply for an order or extension of an order authorizing or approving the
installation and use of a pen register or trap and trace device “for any investigation
to protect against international terrorism or clandestine intelligence activities,
provided such investigation of a United States person is not conducted solely upon

87 For definitions, see fn. 21, supra.
88 50 U.S.C. § 1828. Actual damages are defined to be “not less than liquidated damages
of $1,000 or $100 per day for each violation, whichever is greater.” 50 U.S.C. § 1828(1).
89 50 U.S.C. § 1829.
90 Under 50 U.S.C. § 1841(2), the terms “pen register” and “trap and trace device” are given
the meanings in 18 U.S.C. § 3127. Under Section 3127, “pen register”
. . . means a device which records or decodes electronic or other impulses which
identify the numbers dialed or otherwise transmitted on the telephone line to which
such device is attached, but such term does not include any device used by a provider
or customer of a wire or electronic communication service for billing, or recording as
an incident to billing, for communications services provided by such provider or any
device used by a provider or customer of a wire communication service for cost
accounting or other like purposes in the ordinary course of its business; . . . .
As defined by 18 U.S.C. § 3127(4), “trap and trace device” “means a device which captures
the incoming electronic or other impulses which identify the originating number of an
instrument or device from which a wire or electronic communication was transmitted.” 50
U.S.C. § 1841 is the section that defines terms applicable to the pen register and trap and
trace device portions of FISA.
91 Title IV of FISA was added by Title VI, Sec. 601(2) of P.L. 105-272, on October 20,
1998, 112 Stat. 2405-2410, and amended by P.L. 107-56 and by P.L. 107-108.

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the basis of activities protected by the first amendment to the Constitution” conducted
by the Federal Bureau of Investigation (FBI) under guidelines approved by the
Attorney General pursuant to E.O. 12333 or a successor order.92 This authority is
separate from the authority to conduct electronic surveillance under 50 U.S.C. § 1801
et seq.93
Each such application is made in writing upon oath or affirmation to a FISC
judge or to a U.S. magistrate judge publicly designated by the Chief Justice of the
United States to hear such applications and grant orders approving installation of pen
registers or trap and trace devices on behalf of a FISC judge. The application must
be approved by the Attorney General or a designated attorney for the Government.
Each application must identify the federal officer seeking to use the pen register or
trap and trace device covered by the application. It must also include a certification
by the applicant “that the information likely to be obtained is relevant to an ongoing
investigation to protect against international terrorism or clandestine intelligence
activities, provided that such investigation of a United States person is not conducted
solely upon the basis of activities protected by the first amendment to the
Constitution.”
94
Under 50 U.S.C. § 1842, as amended by P.L. 107-56, pen registers and trap and
trace devices may now be installed and used not only to track telephone calls, but also
other forms of electronic communication such as e-mail. Once an application is made
under Section 1842, the judge95 must enter an ex parte order96as requested or as
92 The italicized language was added by P.L. 107-56, Section 214(a)(1), replacing language
which had read “for any investigation to gather foreign intelligence information or
information concerning international terrorism.”
93 50 U.S.C. § 1842(a)(2).
94 This language, added by P.L. 107-56, Section 214(a)(2), replaced stricken language which
read:
(2) a certification by the applicant that the information to be obtained is relevant
to an ongoing foreign intelligence or international terrorism investigation being
conducted by the Federal Bureau of Investigation under guidelines approved by
the Attorney General; and
(3) information which demonstrates that there is reason to believe that the
telephone line to which the pen register or trap and trace device is to be attached,
or the communication instrument or device to be covered by the pen register or
trap and trace device, has been or is about to be used in communication with —
(A) an individual who is engaging or has engaged in international terrorism
or clandestine intelligence activities that involve or may involve a violation
of the criminal laws of the United States; or
(B) a foreign power or agent of a foreign power under circumstances giving
reason to believe that the communication concerns or concerned
international terrorism or clandestine intelligence activities that involve or
may involve a violation of the criminal laws of the United States.
95 This section refers simply to “judge.” In light of 50 U.S.C. § 1842(b), it would appear that
this may refer to either a FISC judge or a U.S. magistrate judge designated by the Chief
Justice under Section 1842(b)(2) to hear applications for and grant orders approving
(continued...)

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95 (...continued)
installation and use of pen registers or trap and trace devices on behalf of a FISC judge. The
legislative history on this provision does not appear to clarify this point. The language was
included in the bill reported out as an original measure by the Senate Select Committee on
Intelligence, S. 2052, as Sec. 601. The Committee’s report, S.Rept. 105-185, indicates that
magistrate judges were included in the legislation to parallel their use in connection with
receipt of applications and approval of pen registers and trap and trace devices in the context
of criminal investigations, but reflected the Committee’s understanding that the authority
provided in the legislation to designate magistrate judges to consider applications for pen
registers and trap and trace devices in the foreign intelligence gathering context would be
closely monitored by the Department of Justice and this designation authority would not be
exercised until the Committee was briefed on the compelling need for such designations,
as reflected, for example, through statistical information on the frequency of applications
to the FISC under the new procedure. S.Rept. 105-185, at 28 (May 7, 1998). The
provision authorizing the use of pen registers and trap and trace devices in foreign
intelligence and international terrorism investigations, Sec. 601 of the bill as passed, was
among those included in the conference version of H.R. 3694 which was passed in lieu of
S. 2052. H. Conference Rept. 105-80, at 32 (October 5, 1998).
96 Under 50 U.S.C. § 1842(d)(2)(A), such an order
(A) shall specify —
(i) the identity, if known, of the person who is the subject of the
investigation;
(ii) the identity, if known, of the person to whom is leased or in whose name
is listed the telephone line or other facility to which the pen register or trap and
trace device is to be attached or applied;

(iii) the attributes of the communications to which the order applies, such
as the number or other identifier, and, if known, the location of the telephone
line or other facility to which the pen register or trap and trace device is to be
attached or applied and, in the case of a trap and trace device, the geographic
limits of the trap and trace order.
(B) shall direct that —
(i) upon request of the applicant, the provider of a wire or electronic
communication service, landlord, custodian, or other person shall furnish any
information, facilities, or technical assistance necessary to accomplish the
installation and operation of the pen register or trap and trace device in such a
manner as will protect its secrecy and produce a minimum amount of interference
with the services that such provider, landlord, custodian, or other person is
providing the person concerned;
(ii) such provider, landlord, custodian, or other person —
(I) shall not disclose the existence of the investigation or of the pen
register or trap and trace device to any person unless or until ordered by the
court; and
(II) shall maintain, under security procedures approved by the
Attorney General and the Director of National Intelligence pursuant to
section 1805(b)(2)(C) of this title, any records concerning the pen register
or trap and trace device or the aid furnished; and
(iii) the applicant shall compensate such provider, landlord, custodian, or
other person for reasonable expenses incurred by such provider, landlord,
custodian, or other person in providing such information, facilities, or technical
assistance.
(continued...)

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modified approving the installation and use of a pen register or trap and trace device
if the application meets the requirements of that section.
Section 1843 of Title 18 of the United States Code focuses upon authorization
for installation and use of a pen register or trap and trace device under FISA during
specified types of emergencies. This provision applies when the Attorney General
makes a reasonable determination that:
(1) an emergency requires the installation and use of a pen register or trap
and trace device to obtain foreign intelligence information not concerning a
United States person or information to protect against international terrorism or
clandestine intelligence activities, provided that such investigation of a United
States person is not conducted solely upon the basis of activities protected by the
first amendment to the Constitution
before an order authorizing the installation
and use of the pen register or trap and trace device, as the case may be, can with
due diligence be obtained under section 1842 of this title; and
(2) the factual basis for issuance of an order under section 1842(c) of this
title to approve the installation and use of the pen register or trap and trace
device, as the case may be, exists.97
Upon making such a determination, the Attorney General may authorize the
installation and use of a pen register or trap and trace device for this purpose if two
criteria are met. First, the Attorney General or his designee must inform a judge
96 (...continued)
The italicized portions of this section reflect amended language from P.L. 107-56, Section
214 (a)(4). In 50 U.S.C. § 1842(d)(2)(B)(ii)(II), the reference to the “Director of National
Intelligence” replaced a reference to the “Director of Central Intelligence” pursuant to
Section 1071(e) of P.L. 108-458.
P.L. 107-108, Section 314(a)(5)(B), replaced “of a court” at the end of 50 U.S.C. §
1842(f) with “of an order issued,” so that the language now reads:
(f) No cause of action shall lie in any court against any provider of a wire or
electronic communication service, landlord, custodian, or other person (including
any officer, employee, agent, or other specified person thereof) that furnishes any
information, facilities, or technical assistance under subsection (d) in accordance
with the terms of an order issued under this section.
(Emphasis added.) Cf., 50 U.S.C. § 1805(i), which contains an immunity grant which, at
first blush would appear to apply only to electronic surveillance under FISA, but which has
been interpreted at page 25 of H.Rept. 107-328, the conference report accompanying H.R.
2883 (the conference version of which became P.L. 107-108) to apply to electronic
surveillance, physical searches and pen register and trap and trace devices. This subsection
was added as 50 U.S.C. § 1805(h) by Section 225 of P.L. 107-56, and redesignated 50
U.S.C. § 1805(i) by Section 314(a)(2)(C) of P.L. 107-108. See discussion at fn. 39, supra.
97 50 U.S.C. § 1843(b) (italics reflect language added by P.L. 107-56, § 214(b)(2), in place
of language which read “foreign intelligence information or information concerning
international terrorism.”) Similar language was inserted in 50 U.S.C. § 1843(a) by P.L. 107-
56, § 214(b)(1), in place of language that paralleled that stricken from subsection 1843(b).

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referred to in Section 1842(b)98 at the time of the emergency authorization that the
decision to install and use the pen register or trap and trace device has been made.
Second, an application for a court order authorizing a pen register or trap and trace
device under 50 U.S.C. § 1842(a)(1) must be made to the judge as soon as
practicable, but no later that 48 hours after the emergency authorization.99 If no order
approving the installation and use of a pen register or trap and trace device is
forthcoming, then the installation and use of such pen register or trap and trace device
must terminate at the earlier of the time when the information sought is obtained, the
time when the application for the order is denied under 50 U.S.C. § 1842, or the
expiration of 48 hours from the time the Attorney General made his emergency
authorization.100
If an application for an order sought under Section 1843(a)(2) is denied, or if the
installation and use of the pen register or trap and trace device is terminated, and no
order approving it is issued under 50 U.S.C. § 1842(b)(2), then no information
obtained or evidence derived from the use of the pen register or trap and trace device
may be received in evidence or disclosed in any trial, hearing or other proceeding in
any court, grand jury, department, office, agency, regulatory body, legislative
committee or other federal state or local authority. Furthermore, in such
circumstances, no information concerning a United States person acquired from the
use of the pen register or trap and trace device may later be used or disclosed in any
other way by federal officers or employees without consent of the U.S. person
involved, with one exception. If the Attorney General approves the disclosure
because the information indicates a threat of death or serious bodily harm to anyone,
then disclosure without consent of the U.S. person involved is permitted.101
If Congress declares war, then, notwithstanding any other provision of law, the
President, through the Attorney General, may authorize use of a pen register or trap
and trace device without a court order to acquire foreign intelligence information for
up to 15 calendar days after the declaration of war.102
50 U.S.C. § 1845 sets parameters with respect to the use of information obtained
through the use of a pen register or trap and trace device under 50 U.S.C. § 1841 et
seq.
Federal officers and employees may only use or disclose such information with
respect to a U.S. person without the consent of that person in accordance with Section
1845.103 Any disclosure by a Federal officer or employee of information acquired
pursuant to FISA from a pen register or trap and trace device must be for a lawful
purpose. 104 Disclosure for law enforcement purposes of information acquired under
50 U.S.C. § 1841 et seq. is only permitted where the disclosure is accompanied by a
98 See discussion of the term “judge” as used in Section 1842(b) in fn. 94, supra.
99 50 U.S.C. § 1843(a).
100 50 U.S.C. § 1843(c)(1).
101 50 U.S.C. § 1843(c)(2).
102 50 U.S.C. § 1844.
103 50 U.S.C. § 1845(a)(1).
104 50 U.S.C. § 1845(a)(2).

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statement that the information and any derivative information may only be used in a
criminal proceeding with the advance authorization of the Attorney General.105
Under 50 U.S.C. § 1845(c), when the United States intends to enter into
evidence, use, or disclose information obtained by or derived from a FISA pen
register or trap and trace device against an aggrieved person106 in any federal trial,
hearing, or proceeding, notice requirements must be satisfied. The Government,
before the trial, hearing, or proceeding or a reasonable time before the information is
to be proffered, used or disclosed, must give notice of its intent both to the aggrieved
person involved107 and to the court or other authority in which the information is to
be disclosed or used.
If a state or local government intends to enter into evidence, use, or disclose
information obtained or derived from such a trap and trace device against an
aggrieved person in a state or local trial, hearing or proceeding, it must give notice to
the aggrieved person and to the Attorney General of the United States of the state or
local government’s intent to disclose or use the information.108
The aggrieved person in either case may move to suppress the evidence obtained
or derived from a FISA pen register or trap and trace device on one of two grounds:
that the information was unlawfully acquired; or that the use of the pen register or
trap and trace device was not made in conformity with an order of authorization or
approval under 50 U.S.C. § 1841 et seq.109
If notice is given under 50 U.S.C. §§ 1845(c) or (d), or a motion or request is
made to suppress or to discover or obtain any applications, orders, or other materials
relating to use of a FISA pen register or trap and trace device or information obtained
by or derived from such use, the Attorney General may have national security
concerns with respect to the effect of such disclosure or of an adversary hearing. If
105 50 U.S.C. § 1845(b).
106 “Aggrieved person” is defined in 50 U.S.C. § 1841(3) for purposes of 50 U.S.C. § 1841
et seq. as any person:
(A) whose telephone line was subject to the installation or use of a pen
register or trap and trace device authorized by subchapter IV [50 U.S.C. § 1841
et seq.]; or
(B) whose communication instrument or device was subject to the use of
a pen register or trap and trace device authorized by subchapter IV to capture
incoming electronic or other communications impulses.
107 The statute refers to notice to the “aggrieved person.” Here it is using this term in the
context of a pen register or trap and trace device under FISA (see fn. 90 for the applicable
definition of “pen register” and “trap and trace device” in 50 U.S.C. § 1841(2) and fn. 106
for the applicable definition of “aggrieved person” in 50 U.S.C.§ 1841(3), supra). The term
“aggrieved person” is also defined in both 50 U.S.C. §§ 1801(k) (in the context of electronic
surveillance, see fn. 42, supra) and 1825(d) (in the context of a physical search, see fn. 74,
supra).
108 50 U.S.C. § 1845(d).
109 50 U.S.C. § 1845(e).

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he files an affidavit under oath that disclosure or any adversary hearing would harm
the national security of the United States, the United States district court in which the
motion or request is made, or where the motion or request is made before another
authority, the U.S. district court in the same district, shall review in camera and ex
parte
the application, order, and other relevant materials to determine whether the use
of the pen register or trap and trace device was lawfully authorized and conducted.110
In so doing, the court may only disclose portions of the application, order or materials
to the aggrieved person or order the Attorney General to provide the aggrieved person
with a summary of these materials if that disclosure is necessary to making an
accurate determination of the legality of the use of the pen register or trap and trace
device.111
Should the court find that the pen register or trap and trace device was not
lawfully authorized or conducted, it may suppress the unlawfully obtained or derived
evidence or “otherwise grant the motion of the aggrieved person.”112 On the other
hand, if the court finds the pen register or trap and trace device lawfully authorized
and conducted, it may deny the aggrieved person’s motion except to the extent
discovery or disclosure is required by due process.113 Any U.S. district court orders
granting motions or request under Section 1845(g), finding unlawfully authorized or
conducted the use of a pen register or trap and trace device, or requiring review or
granting disclosure of applications, orders or other materials regarding installation
and use of a pen register or trap and trace device are deemed final orders. They are
binding on all federal and state courts except U.S. courts of appeals and the U.S.
Supreme Court.114
Section 1846 deals with congressional oversight of the use of FISA pen registers
and trap and trace devices.115 It requires the Attorney General semiannually to fully
inform the House Permanent Select Committee on Intelligence and the Senate Select
Committee on Intelligence regarding all FISA uses of pen registers and trap and trace
devices. In addition, the Attorney General, on a semi-annual basis, must report to the
House Permanent Select Committee on Intelligence, the Senate Select Committee on
Intelligence, the House Judiciary Committee and the Senate Judiciary Committee on
the total number of applications made for orders approving the use of such pen
registers and trap and trace devices and the total number of such orders granted,
modified, or denied during the previous six month period.
Access to certain business records for foreign intelligence
purposes. Added in 1998, Title V of FISA, 50 U.S.C. § 1861 et seq., was
110 50 U.S.C. § 1845(f)(1).
111 50 U.S.C. § 1845(f)(2).
112 50 U.S.C. § 1845(g)(1).
113 50 U.S.C. § 1845(g)(2).
114 50 U.S.C. § 1845(h).
115 See also Section 6002 of P.L. 108-458, the Intelligence Reform and Terrorism Prevention
Act of 2004, which amended FISA to add additional reporting requirements. These new
reporting requirements are discussed at fn. 48, supra, and accompanying text.

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substantially changed by P.L. 107-56 and modified further by P.L. 107-108.116
116 Title V of FISA was added by Title VI, Sec. 602, of P.L. 105-272, on October 20, 1998,
112 Stat. 2411-12, and significantly amended by P.L. 107-56 and P.L. 107-108. The prior
version of 50 U.S.C. § 1861 provided definitions for “foreign power,” “agent of a foreign
power,” “foreign intelligence information,” “international terrorism,” and “Attorney
General,” “common carrier,” “physical storage facility,” “public accommodation facility,”
and “vehicle rental facility” for purposes of 50 U.S.C. § 1861 et seq. The prior version of
Section 1862 was much more narrowly drawn than the new version added in P.L. 107-56
and amended by P.L. 107-108. The earlier version read:
(a) The Director of the Federal Bureau of Investigation or a designee of the
Director (whose rank shall be no lower than Assistant Special Agent in Charge)
may make an application for an order authorizing a common carrier, public
accommodation facility, physical storage facility, or vehicle rental facility to
release records in its possession for an investigation to gather foreign intelligence
information or an investigation concerning international terrorism which
investigation is being conducted by the Federal Bureau of Investigation under
such guidelines as the Attorney General approves pursuant to Executive Order
No. 12333, or a successor order.
(b) Each application under this section —
(1) shall be made to —
(A) a judge of the court established by section 1803(a) of this
title; or
(B) a United States Magistrate Judge under chapter 43 of Title
28 [28 U.S.C. § 631 et seq.], who is publicly designated by the Chief
Justice of the United States to have the power to hear applications and
grant orders for the release of records under this section on behalf of
a judge of that court; and
(2) shall specify that —
(A) the records concerned are sought for an investigation
described in subsection (a); and
(B) there are 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.
(c)
(1) Upon application made pursuant to this section, the judge shall
enter an ex parte order as requested, or as modified, approving the release
of records if the judge finds that the application satisfied the requirements
of this section.
(2) An order under this subsection shall not disclose that it is issued
for purposes of an investigation described in subsection (a).
(d)
(1) Any common carrier, public accommodation facility, physical
storage facility, or vehicle rental facility shall comply with an order under
subsection (c).
(2) No common carrier, public accommodation facility, physical
storage facility, or vehicle rental facility, or officer, employee, or agent
thereof, shall disclose to any person (other than those officers, agents, or
employees of such common carrier, public accommodation facility ,
physical storage facility, or vehicle rental facility necessary to fulfill the
requirement to disclose information to the Federal Bureau of Investigation
under this section) that the Federal Bureau of Investigation has sought or
obtained records pursuant to an order under this section.
(continued...)

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Although denominated “access to certain business records for foreign intelligence and
international terrorism investigations,” the reach of Section 1861, as amended by the
USA PATRIOT Act and P.L. 107-108, is now substantially broader than business
records alone. Under 50 U.S.C. § 1861(a)(1), the Director of the FBI, or his designee
(who must be at the Assistant Special Agent in Charge level or higher in rank) may
apply for an order requiring
. . . the production of any tangible things (including books, records, papers,
documents, and other items) for an investigation to obtain foreign intelligence
information not concerning a United States person or
to protect against
international terrorism or clandestine intelligence activities, provided that such
investigation of a United States person is not conducted solely upon the basis of
activities protected by the first amendment to the Constitution.117
116 (...continued)
Congressional oversight was covered under the prior provisions by 50 U.S.C. §1863, which
was similar, but not identical to the new Section 1862. The former Section 1863 stated:
(a) On a semiannual basis, the Attorney General shall fully inform the
Permanent Select Committee on Intelligence of the House of Representatives and
the Select Committee on Intelligence of the Senate concerning all request for
records under this subchapter [50 U.S.C. § 1861 et seq.].
(b) On a semiannual basis, the Attorney General shall provide to the
Committees on the Judiciary of the House of Representatives and the Senate a
report setting forth with respect to the preceding 6-month period —
(1) the total number of applications made for orders approving
requests for records under this subchapter [50 U.S.C. § 1861 et seq.]; and
(2) the total number of such orders either granted, modified, or
denied.
117 The italicized portion of Section 1861(a)(1) was added by Section 314(a)(6) of P.L. 107-
108. H.Rept. 107-328, the conference report to accompany H.R. 2883, the Intelligence
Authorization Act for Fiscal Year 2002 (which became P.L. 107-108), at page 24, describes
the purpose of this addition as follows:
Section 215 of the USA PATRIOT Act of 2001 amended title V of the
FISA, adding a new section 501 [50 U.S.C. § 1861]. Section 501(a) now
authorizes the director of the FBI to apply for a court order to produce certain
records “for an investigation to protect against international terrorism or
clandestine intelligence activities.” Section 501(b)(2) directs that the application
for such records specify that the purpose of the investigation is to “obtain foreign
intelligence information not concerning a United States person.” However,
section 501(a)(1), which generally authorizes the applications, does not contain
equivalent language. Thus, subsections (a)(1) and (b)(2) now appear
inconsistent.
The conferees agreed to a provision which adds the phrase “to obtain
foreign intelligence information not concerning a United States person or” to
section 501(a)(1). This would make the language of section 501(a)(1) consistent
with the legislative history of section 215 of the USA PATRIOT Act (see 147
Cong. Rec. S11006 (daily ed. Oct. 25, 2001) (sectional analysis)) and with the
language of section 214 of the USA PATRIOT Act (authorizing an application
for an order to use pen registers and trap and trace devices to “obtain foreign
(continued...)

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Subsection 1861(a)(2) requires that such an investigation must be conducted under
guidelines approved by the Attorney General under E.O. 12333 or a successor order
and prohibits such an investigation of a United States person based solely upon First
Amendment protected activities.
An application for an order under Section 1861 must be made to an FISC judge
or to a U.S. magistrate judge publicly designated by the Chief Justice of the United
States to hear such applications and grant such orders for the production of tangible
things on behalf of an FISC judge.118 The application must specify that the
“records”119 are sought for “an authorized investigation conducted in accordance with
[50 U.S.C. § 1862(a)(2)] to obtain foreign intelligence information not concerning a
United States person or to protect against international terrorism or clandestine
intelligence activities.”120 When such an application is made, the judge must enter an
ex parte order “as requested, or as modified, approving the release of records if the
judge finds that the application meets the requirements of this section.”121 Such an
order shall not disclose that it is issued for purposes of an investigation under 50
U.S.C. § 1861(a).122 Subsection 1861(d) prohibits any person to disclose that the FBI
has sought or obtained tangible things under Section 1861, except where the
disclosure is made to persons necessary to the production of tangible things involved.
Subsection 1861(e) precludes liability for persons who, in good faith, produce
tangible things under such a Section 1861 order. It further indicates that production
does not constitute a waiver of any privilege in any other proceeding or context.
50 U.S.C. § 1862 deals with congressional oversight.123 Subsection 1862(a)
requires the Attorney General semiannually to fully inform the House Permanent
Select Committee on Intelligence and the Senate Select Committee on Intelligence
117 (...continued)
intelligence information not concerning a United States person.”).
118 50 U.S.C. § 1861(b)(1).
119 While the language refers to “records,” it is worthy of note that the authority conferred
upon the Director of the FBI or his designee under Section 1861(a) encompasses
applications for orders requiring production of “any tangible thing (including books,
records, papers, documents, and other items).” One might argue, therefore, that for
Subsection 1861(a)(1) and Subsection 1861(b)(2) to be read in harmony, a court might
interpret “records” more broadly to cover “any tangible thing.” On the other hand, if, by
virtue of the specific reference in Subsection 1861(a)(1) to “records” as only one of many
types of “tangible things,” the term “records” in Subsection 1861(b)(2) were to be read
narrowly, it might lead to some confusion as to the nature and scope of any specification that
might be required where an application seeking production of types of tangible things other
than records is involved.
120 50 U.S.C. § 1861(b)(2).
121 50 U.S.C. § 1861(c)(1).
122 50 U.S.C. § 1861(c)(2).
123 See also Section 6002 of P.L. 108-458, the Intelligence Reform and Terrorism Prevention
Act of 2004, which added new reporting requirements. For a discussion of these additional
reporting requirements, see fn. 48, supra, and accompanying text.

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regarding all request for production of tangible things under Section 1861.124
Subsection 1862(b) requires the Attorney General to report to the House and Senate
Judiciary Committees on the total number of applications for Section 1861 orders for
production of tangible things and on the total number of such orders granted,
modified, or denied during the previous six months.
New Private Right of Action
In addition to provisions which amended FISA explicitly, other provisions of the
USA PATRIOT Act touched upon FISA, at least tangentially. For example, Section
223 of the act, among other things, created a new 18 U.S.C. § 2712. This new section,
in part, created an exclusive private right of action for any person aggrieved by any
willful violation of sections 106(a), 305(a), or 405(a) of FISA (50 U.S.C. §§ 1806(a),
1825(a), 1845(a), respectively) to be brought against the United States in U.S. district
court to recover money damages. Such monetary relief would amount to either actual
damages or $10,000, whichever is greater; and reasonably incurred litigation costs.
It also set forth applicable procedures.125
124 Section 314(a)(7) of P.L. 107-108 corrected two references in 50 U.S.C. § 1862 as passed
in the USA PATRIOT Act. P.L. 107-108 replaced “section 1842 of this title” with “section
1861 of this title,” in both places in 50 U.S.C. § 1862 where it appeared.
125 Another provision, Section 901 of the USA PATRIOT Act, amended 50 U.S.C. § 403-
3(c) (Section 103(c) of the National Security Act of 1947) regarding the responsibilities of
the Director of Central Intelligence (DCI). The amendment added to those authorities and
responsibilities, placing upon the DCI the responsibility to establish
. . . requirements and priorities for foreign intelligence information to be
collected under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. §
1801 et seq.), and provide assistance to the Attorney General to ensure that
information derived from electronic surveillance or physical searches under that
Act is disseminated so it may be used efficiently and effectively for foreign
intelligence purposes, except that the Director shall have no authority to direct,
manage, or undertake electronic surveillance or physical search operations
pursuant to that Act unless otherwise authorized by statute or Executive order.
Section 1011 of the Intelligence Reform and Terrorism Prevention Act of 2004,
P.L.108-458, amended Title I of the National Security Act of 1947, 50 U.S.C. § 402 et seq.,
to strike the previous Sections 102 through 104 of the Act 50 U.S.C. §§ 403, 403-1, 403-3,
and 403-4, and insert new Sections 102 through 104A. The new Section 102 created the
position of Director of National Intelligence (DNI). Section 102A outlined authorities and
responsibilities of the position. Under the new Section 102A(f)(6) of the National Security
Act, the DNI was given responsibility:
to establish requirements and priorities for foreign intelligence information to be
collected under [FISA], and provide assistance to the Attorney General to ensure
that information derived from electronic surveillance or physical searches under
that act is disseminated so that it may be used efficiently and effectively for
foreign intelligence purposes, except that the Director shall have no authority to
direct, manage, or undertake electronic surveillance or physical search operations
pursuant to that act unless otherwise authorized by statute or Executive order.
(continued...)

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USA PATRIOT Act Sunset Provision
Section 224 of the USA PATRIOT Act set a sunset for many of the provisions
in P.L. 107-56 of December 31, 2005. Among those provisions which will sunset
pursuant to this are all of the amendments to FISA in P.L. 107-56, and subsequent
amendments thereto, except the provision which increased the number of FISC judges
from 7 to 11 (Section 208 of P.L. 107-56). Section 224 also excepts from the
application of the sunset provision any particular foreign intelligence investigations
that began before December 31, 2005, or any criminal offenses or potential offenses
which began or occurred before December 31, 2005. As to those particular
investigations or offenses, applicable provisions would continue in effect. The sunset
provision in Section 224 of P.L. 107-56 and the exceptions thereto also apply to the
expansion, under Section 6001 of P.L. 108-458, of the definition of “agent of a
foreign power” in 50 U.S.C. § 1801(b)(1)(C) to include any person other than a U.S.
person who engages in international terrorism or activities in preparation for
international terrorism.
Recent Decisions of the FISC and the U.S. Foreign
Intelligence Surveillance Court of Review
The FISC Decision
Summary. In its May 17, 2002, decision, the FISC considered a government
motion for the court “to vacate the minimization and ‘wall’ procedures in all cases
now or ever before the Court, including this Court’s adoption of the Attorney
General’s July 1995 intelligence sharing procedures, which are not consistent with
new intelligence sharing procedures submitted for approval with this motion.”126 The
court viewed the new intelligence sharing procedures under review as proposed new
Attorney General minimization procedures. In a memorandum and order written by
the then Presiding Judge, U.S. District Court Judge Royce Lamberth, issued on the
last day of his tenure on the FISC, and concurred in by all of the judges then sitting
on the FISC, the FISC granted the Department of Justice (DOJ) motion with
significant modifications to section II.B. of what the FISC characterized as the
proposed minimization procedures. The court required a continuation of the Attorney
125 (...continued)
New Section 102A(f)(8) of the National Security Act, as enacted by P.L. 108-458, Section
1011, provided that, "Nothing in this act shall be construed as affecting the role of the
Department of Justice or the Attorney General with respect to applications under the Foreign
Intelligence Surveillance Act." Section 1071(e) of P.L. 108-458, amended FISA to insert
"Director of National Intelligence" in lieu of "Director of Central Intelligence" in each place
in which it appeared.
126 In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp.
2d 611, 613 (U.S. Foreign Intell. Surveil. Ct. 2002). A copy of a March 6, 2002,
Memorandum from the Attorney General to the Director, FBI; Assistant Attorney General,
Criminal Division; Counsel for Intelligence Policy; and United States Attorneys entitled
“Intelligence Sharing Procedures for Foreign Intelligence and Foreign Counterintelligence
I n v e s t i g a t i o n s C o n d u c t e d b y t h e F B I ” m a y b e f o u n d a t
http://fas.org/irp/agency/doj/fisa/ag030602.html.

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General’s 1995 minimization procedures, as subsequently modified by the Attorney
General and the Deputy Attorney General, and preservation of a “wall” procedure to
maintain separation between FBI criminal investigators and DOJ prosecutors and raw
FISA investigation data regarding the same facts or individuals, so as to prevent
these law enforcement personnel from becoming “de facto partners in FISA
surveillances and searches,”127 while permitting extensive sharing of information
between such investigations.
The FISC was particularly concerned with those aspects of section II.B. of the
proposed procedures which would permit criminal prosecutors and law enforcement
officers to initiate, direct or control electronic surveillance or physical searches under
FISA, with an eye towards law enforcement objectives, rather than foreign
intelligence information gathering. The FISC set the stage for its analysis by
recounting a significant number of past instances where FISA applications had
included false, inaccurate or misleading information regarding information sharing
or compliance with “wall” procedures in FBI affidavits or, in one case, in a statutorily
required certification by the FBI Director; and past occasions where the FISC’s orders
had been violated in regard to information sharing and unauthorized dissemination
of FISA information to criminal investigators and prosecutors. While both the FBI’s
and DOJ’s Offices of Professional Responsibility had been investigating these
incidents for over a year at the time of the writing of the opinion, the court had not
been advised of any explanations as to how such misrepresentations had occurred.
The court’s dissatisfaction with these irregularities formed a backdrop for its analysis
of the motion and applications before it.
Discussion of the Memorandum Opinion and Order. Its analysis was
based upon its reading of the statutory language and premised, in part, on the fact that
the USA PATRIOT Act had not amended the provisions of FISA dealing with
minimization requirements, although other FISA provisions had been modified. The
minimization provisions with respect to both electronic surveillance and physical
searches under FISA continue to be designed to “minimize the acquisition and
retention, and prohibit the dissemination, of non-publicly available information
concerning unconsenting United States persons, consistent with the need of the
United States to obtain, produce, and disseminate foreign intelligence information.”128
The court regarded the standard it applied to the proposed procedures before it as
“mandated in [50 U.S.C.] § 1805(a)(4) and § 1824(a)(4), which state that ‘the
127 Id. at 620. In Chapter 3 of The 9/11 Commission Report, Final Report of the National
Commission on Terrorist Attacks Upon the United States
78-80 (W.W. Norton & Co. 2004)
(Final Report), the Commission perceived the evolution of the “wall” as a result of statutory
language, court interpretation, DOJ interpretation of the legislative language and court
decisions, DOJ procedures to manage information sharing between Justice Department
prosecutors and the FBI, misunderstanding and misapplication of those procedures, DOJ’s
Office of Intelligence Policy and Review’s (OIPR) stringent exercise of its gate-keeping
role, and inaccurate perceptions of field agents. In Chapter 8 of the Final Report, at 269-72,
the Commission recounted some of the effects of what it saw as the confusion surrounding
the rules governing the use and sharing of information gathered through intelligence
channels.
128 50 U.S.C. §§ 1802(h), 1821(4)(A) (emphasis added).

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proposed minimization procedures meet the definition of minimization procedures
under § 101(h), [§ 1801(h) and §1824(4)] of the act.’”
In its memorandum opinion, the FISC first discussed the court’s jurisdiction,
noting that the text of the statute “leaves little doubt that the collection of foreign
intelligence information is the raison d’etre for the FISA.”129 The court found
support for this conclusion in a review of pertinent provisions of the act. It found
further support in E.O. 12139 and E.O. 12949, which give the Attorney General
authority to approve the filing of applications for orders for electronic surveillances
and physical searches and authorize the Director of the FBI and other senior
executives to make required certifications under FISA for the “purpose of obtaining
foreign intelligence information.” The FISC therefore concluded that its jurisdiction
was limited to granting FISA orders for electronic surveillance and physical searches
for the collection of foreign intelligence information under the standards and
procedures prescribed in the act.130 In reaching this conclusion, the FISC, in a
footnote, characterized the issue before it as “whether the FISA authorizes electronic
surveillance and physical searches primarily for law enforcement purposes so long
as the Government also has ‘a significant’ foreign intelligence purpose.” Rejecting
the approach taken by the Government in its supplemental brief in the case, the Court
stated that “its decision is not based on the issue of its jurisdiction but on the
interpretation of minimization procedures.”131 Maintaining its focus upon the
minimization procedures, the FISC also declined to reach the question raised by the
129 FISC op., 218 F. Supp. 2d at 613. “Foreign intelligence information” is a term of art in
FISA, defined in 50 U.S.C. § 1801(e) to mean:
(e)
(1) information that relates to, and if concerning a United States person is
necessary to, the ability of the United States to protect against —
(A) actual or potential attack or other grave hostile acts of a foreign
power or an agent of a foreign power;
(B) sabotage or international terrorism by a foreign power or an agent
of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or
network of a foreign power or by an agent of a foreign power; or
(2) information with respect to a foreign power or foreign territory that
relates to, and if concerning a U.S. person is necessary to —
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.
In reaching its decision, the FISC indicated that it was not addressing directly the
Department of Justice argument that, so long as a significant purpose of a FISA surveillance
or physical search was to gather foreign intelligence information, the primary purpose of
such an investigation could be criminal investigation or prosecution. FISC op., 218 F. Supp.
2d at 615 n.2. The FISC was not receptive to the DOJ theory that a “wall” procedure
separating a foreign intelligence investigation under FISA from a criminal investigation
involving the same target or factual underpinnings was an artificial separation which was
not compelled by FISA.
130 FISC op., 218 F. Supp. 2d at 614.
131 Id. at 614 n.1(emphasis added).

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Attorney General “whether FISA may be used primarily for law enforcement
purposes.”132
The court also regarded the scope of its findings regarding minimization133 as
applicable “only to communications concerning U.S. persons as defined in § 1801(i)
of the act: U.S. citizens and permanent resident aliens whether or not they are named
targets in the electronic surveillance and physical searches.”134 It emphasized that
its opinion was not applicable to communications of foreign powers as defined under
50 U.S.C. § 1801(a), or to non-U.S. persons.135
132 Id. at 615 n.2.
133 FISA defines “minimization procedures” with respect to electronic surveillance in 50
U.S.C. § 1801(h). The term is defined under FISA with respect to physical searches in 50
U.S.C. § 1821(4). As the two definitions are similar, the definition from Section 1801(h)
is included for illustrative purposes.
(h) “Minimization procedures”, with respect to electronic surveillance, means–
(1) specific procedures, which shall be adopted by the Attorney General,
that are reasonably designed in light of the purpose and technique of the
particular surveillance, to minimize the acquisition and retention, and prohibit
the dissemination, of nonpublicly available information concerning unconsenting
United States persons consistent with the need of the United States to obtain,
produce, and disseminate foreign intelligence information;
(2) procedures that require that nonpublicly available information, which
is not foreign intelligence information, as defined in subsection (e)(1) of this
section, shall not be disseminated in a manner that identifies any United States
person, without such person’s consent, unless such person’s identity is necessary
to understand foreign intelligence information or assess its importance;
(3) notwithstanding paragraphs (1) and (2), procedures that allow for the
retention and dissemination of information that is evidence of a crime which has
been, is being, or is about to be committed and that is to be retained or
disseminated for law enforcement purposes; and
(4) notwithstanding paragraphs (1), (2), and (3), with respect to any
electronic surveillance approved pursuant to section (1802(a) of this title,
procedures that require that no contents of any communication to which a United
States person is a party shall be disclosed, disseminated, or used for any purpose
or retained for longer than 72 hours unless a court order under section 1805 of
this title is obtained or unless the Attorney General determines that the
information indicates a threat of death or serious bodily harm to any person.
134 FISC op., 218 F. Supp. 2d at 614. This provision defines a “United States person” as
follows:
. . . a citizen of the United States, an alien lawfully admitted for permanent
residence (as defined in section 1101(a)(20) of Title 8), an unincorporated
association a substantial number of members of which are citizens of the United
States or aliens lawfully admitted for permanent residence, or a corporation
which is incorporated in the United States, but does not include a corporation or
an association which is a foreign power, as defined in subsection (a)(1), (2), or
(3) of this section.
135 Id.

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After stating its continued approval of the “Standard Minimization Procedures
for a U.S. Person Agent of a Foreign Power,” the court turned its attention to two
sections of supplementary minimization procedures adopted by the Attorney General
on March 6, 2002, regarding “II. Intelligence sharing procedures concerning the
Criminal Division,” and “III. Intelligence sharing procedures concerning a USAO
[U.S. Attorney’s Office].” The FISC regarded these procedures as minimization
procedures as that term is defined under FISA by virtue of the fact that they were
adopted by the Attorney General and were “designed to minimize the acquisition and
retention, and prohibit the dissemination, of nonpublicly available information
concerning unconsenting United States persons.”136 Therefore, these procedures were
measured against the standard for minimization procedures set forth in 50 U.S.C. §§
1805(a)(4) and 1824(a)(4):
. . . The operative language of each section to be applied by the Court
provides that minimization procedures must be reasonably designed in light of
their purpose and technique, and mean —
specific procedures, which shall be adopted by the Attorney General, that
are reasonably designed in light of the purpose and technique of the
particular surveillance, [search] to minimize the acquisition and retention,
and prohibit the dissemination, of nonpublicly available information
concerning unconsenting United States persons consistent with the need of
the United States to obtain, produce, and disseminate foreign intelligence
information. §1801(h)(1) and §1821(4)(A).137
The court then reviewed the minimization procedures upon which it had been relying
prior to the application before it, to wit, the Attorney General’s 1995 “Procedures for
Contacts between the FBI and Criminal Division Concerning FI [Foreign
Intelligence] and Foreign Counterintelligence Investigations,”as augmented by the
Attorney General in January 2000 and expanded further by the Deputy Attorney
General in August 2001. The FISC indicated that these procedures permitted the
following “substantial consultation and coordination”:
a.
reasonable indications of significant federal crimes in FISA cases are to be
reported to the Criminal Division of the Department of Justice;
b.
[t]he Criminal Division may then consult with the FBI and give guidance
to the FBI aimed at preserving the option of criminal prosecution, but may
not direct or control
the FISA investigation toward law enforcement
objectives;
c.
the Criminal Division may consult further with the appropriate U.S.
Attorney’s Office about such FISA cases;
d.
on a monthly basis senior officials of the FBI provide briefings to senior
officials of the Justice Department, including OIPR [Office of Intelligence
Policy and Review] and the Criminal Division, about intelligence cases,
including those in which FISA is or may be used;
136 Id. at 616.
137 Id.

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e.
all FBI 90-day interim reports and annual reports of counterintelligence
investigations, including FISA cases, are being provided to the Criminal
Division, and must now contain a section explicitly identifying any possible
federal criminal violations;
f.
all requests for initiation or renewal of FISA authority must now contain a
section devoted explicitly to identifying any possible federal criminal
violations;
g.
the FBI is to provide monthly briefings directly to the Criminal Division
concerning all counterintelligence investigations in which there is a
reasonable indication of a significant federal crime;
h.
prior to each briefing the Criminal Division is to identify (from FBI reports)
those intelligence investigations about which it requires additional
information and the FBI is to provide the information requested; and
i.
since September 11, 2001, the requirement that OIPR be present at all
meetings and discussions between the FBI and Criminal Division involving
certain FISA cases has been suspended; instead, OIPR reviews a daily
briefing book to inform itself and this Court about those discussions.138
The FISC indicated further that it “routinely approved the use of information
screening ‘walls’ proposed by the government in its applications” to maintain both
the appearance and the fact that FISA surveillances and searches were not being used
sub rosa for criminal investigations.”139 In March 2000, September 2000, and March
2001, the FISC was advised by the Department of Justice of a significant number of
erroneous statements or omissions of material facts in FISA applications, almost all
of which involved misstatements or omissions as to information sharing and
unauthorized disseminations to criminal investigators and prosecutors.140 Although
the FBI and the Department of Justice Office of Professional Responsibility had been
investigating the circumstances involved in these misstatements and omissions for
over a year, as of the date of the opinion, the court had not been advised of the
reasons for these erroneous statements. The court responded to these concerns in
2001 by instituting supervisory measures to assess compliance with “wall”
procedures.
In the case before the FISC, the government moved that all “wall” procedures
be eliminated in international terrorism surveillances and physical searches under
FISA. The FISC indicated that the new 2002 procedures proposed by the Attorney
General would apply to two types of cases in which “FISA is the only effective tool
available
to both counterintelligence and criminal investigators” (emphasis supplied)
— those involving overlapping investigations (which the court described as cases,
138 Id. at 619-20 (emphasis supplied.)
139 Id. at 620.
140 The September 2000 notification to the FISC from the Department of Justice identified
75 cases of cases involving misstatements or omissions in FISA applications. The court
does not indicate the specific number of FISA applications involved in the notifications on
the other dates mentioned in the opinion. See FISC op., 218 F. Supp. 2d at 620-21.

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usually international terrorism cases, in which separate intelligence and criminal
investigations of the same FISA target who is a U.S. person are conducted by
different FBI agents, where separation can easily be maintained) and those involving
overlapping interests (i.e., cases in which one investigation of a U.S. person FISA
target is conducted by a team of FBI agents with both intelligence and criminal
interests “usually involving espionage and similar cases in which separation is
impractical”).141 In both types of investigations, the FISC indicated that the 2002
proposed minimization procedures provided authority for “extensive consultations
between the FBI and criminal prosecutors ‘to coordinate efforts to investigate or
protect against actual or potential attack, sabotage, international terrorism and
clandestine intelligence activities by foreign powers and their agents . . . .’” Such
consultation is expressly provided for in 50 U.S.C. §§ 1806(k)(1) and 1825(k)(1).
Under the proposed minimization procedures, those consultations would include
providing prosecutors with access to “all information” developed in FBI
counterintelligence investigations, including through FISA, among other information.
Section II.B. of the proposed minimization techniques would authorize criminal
prosecutors to “consult extensively and provide advice and recommendations to
intelligence officials about ‘all issues necessary to the ability of the United States to
investigate or protect against foreign attack, sabotage, terrorism, and clandestine
intelligence activities.’” The FISC was particularly concerned about the authority
given criminal prosecutors under Section II.B. “to advise FBI intelligence officials
concerning ‘the initiation, operation, continuation, or expansion of FISA searches
or surveillance
.’”142 The court regarded this provision as “designed to use this
Court’s orders to enhance criminal investigation and prosecution, consistent with the
government’s interpretation of the recent amendments that FISA may now be ‘used
primarily for a law enforcement purpose.’”143 Under section III of the proposed
procedures, U.S. attorneys are given the authority to engage in consultations to the
same extent as the Criminal Division of DOJ under parts II.A. and II.B. in cases
involving international terrorism. The FISC interpreted these procedures as giving
criminal prosecutors “a significant role directing FISA surveillances and searches
from start to finish in counterintelligence cases involving overlapping intelligence and
criminal investigations or interests, guiding them to criminal prosecution.”144
In light of the court’s past experience with FISA searches and surveillances, the
FISC found the proposed procedures to be “designed to enhance the acquisition,
retention and dissemination of evidence for law enforcement purposes, instead of
being consistent with the need of the United States to ‘obtain, produce, and
disseminate foreign intelligence information’ (emphasis added [by the FISC]) as
mandated in § 1801(h) and § 1821(4).”145 The court regarded the procedures as, in
effect, an effort by the government to amend FISA’s definition of minimization
141 FISC op., 218 F. Supp. 2d at 622.
142 Id. at 623.
143 Id. (Emphasis added).
144 Id.
145 Id.

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procedures in ways that Congress had not and to substitute FISA for the electronic
surveillance requirements of Title III of the Omnibus Crime Control and Safe Streets
Act, 18 U.S.C. § 2510 et seq., and for the search warrant requirements in Rule 41 of
the Federal Rules of Criminal Procedure. The court found this unacceptable. Nor
was the court persuaded by the government’s contention that the 1995 procedures’
prohibition against criminal prosecutors “directing or controlling” FISA cases should
be revoked. “If criminal prosecutors direct both the intelligence and criminal
investigations, or a single investigation having combined interests, coordination
becomes subordination
of both investigations or interests to law enforcement
objectives.”146
The FISC stated:
Advising FBI intelligence officials on the initiation, operation, continuation
or expansion of FISA surveillances and searches of U.S. persons means that
criminal prosecutors will tell the FBI when to use FISA (perhaps when they lack
probable cause for a Title III electronic surveillance), what techniques to use,
what information to look for, what information to keep as evidence and when use
of FISA can cease because there is enough evidence to arrest and prosecute. The
2002 minimization procedures give the Department’s criminal prosecutors every
legal advantage conceived by Congress to be used by U.S. intelligence agencies
to collect foreign intelligence information, . . . based on a standard that the U.S.
person is only using or about to use the places to be surveilled or searched,
without any notice to the target unless arrested and prosecuted, and, if prosecuted,
no adversarial discovery of the FISA applications and warrants. All of this may
be done by use of procedures intended to minimize collection of U.S. person
information, consistent with the need of the United States to obtain and produce
foreign intelligence information. If direction of counterintelligence cases
involving the use of highly intrusive FISA surveillances and searches by criminal
prosecutors is necessary to obtain and produce foreign intelligence information,
it is yet to be explained to the Court.147
Having found section II.B. of the proposed minimization procedures inconsistent
with the statutory standard for minimization procedures under 50 U.S.C. §§ 1801(h)
and 1821(4), the court substituted its own language in place of the second and third
paragraphs of II.B. as submitted by the Attorney General. The substitute language
permitted consultation between the FBI, the Criminal Division of DOJ, and the Office
of Intelligence Policy and Review of DOJ (OIPR) “to coordinate their efforts to
investigate or protect against foreign attack or other grave hostile acts, sabotage,
international terrorism, or clandestine intelligence activities by foreign powers or
[agents of foreign powers],” so that the goals and objectives of both the intelligence
and law enforcement investigations or interests may be achieved. However, it
prohibited law enforcement officials from making recommendations to intelligence
officials regarding initiation, operation, continuation, or expansion of FISA
surveillances and searches. In addition, the substitute language foreclosed law
enforcement officials from directing or controlling the use of FISA procedures to
enhance criminal prosecution; nor was advice intended to preserve the option of
146 Id. at 623-24 (emphasis in original).
147 Id. at 624.

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criminal prosecution to be permitted to inadvertently result in the Criminal Division
directing or controlling an investigation involving FISA surveillance or physical
searches to achieve law enforcement objectives.148 While direct consultation and
coordination were permitted, the substitute language required OIPR to be invited to
all such consultations and, where OIPR was unable to attend, the language required
OIPR to be apprized forthwith in writing of the substance of the consultations, so that
the FISC could be notified at the earliest opportunity.149
In its order accompanying the FISC memorandum opinion, the court held that
the proposed minimization procedures, so modified, would be applicable to all future
electronic surveillances and physical searches under FISA, subject to the approval of
the court in each instance.150 In this order, the court also adopted a new
administrative rule to monitor compliance. The new Rule 11 regarding criminal
investigations in FISA cases provided:
All FISA applications shall include informative descriptions of any ongoing
criminal investigations of FISA targets, as well as the substance of any
consultations between the FBI and criminal prosecutors at the Department of
Justice or a United States Attorney’s Office.151
The Decision of the U.S. Foreign Intelligence Surveillance
Court of Review

Summary. The FISC memorandum opinion and order discussed above were
not appealed directly. Rather, the Department of Justice sought review in the U.S.
Foreign Intelligence Surveillance Court of Review (Court of Review) of a FISC order
which authorized electronic surveillance of an agent of a foreign power, but imposed
restrictions on the government flowing from the FISC’s May 17th decision, and of
an order renewing that surveillance subject to the same restrictions. Because of the
electronic surveillance context of these orders, the Court of Review’s analysis was
cast primarily in terms of such surveillance, although some aspects of its analysis may
have broader application to other aspects of FISA. In its first decision ever, the Court
of Review, in a lengthy per curiam opinion issued on November 18, 2002, reversed
and remanded the FISC orders. In so doing the Court of Review emphasized that the
May 17th decision, although never appealed, was “the basic decision before us and it
[was] its rationale that the government challenge[d].”152 After reviewing the briefs
of the government and two amici curiae, the American Civil Liberties Union (joined
on the brief by the Center for Democracy and Technology, the Center for National
Security Studies, the Electronic Privacy Information Center, and the Electronic
Frontier Foundation) and the National Association of Criminal Defense Lawyers, the
Court of Review concluded that “FISA, as amended by the Patriot Act, supports the
148 Id. at 625.
149 Id.
150 Id. at 627.
151 Id.
152 In re Sealed Case, 310 F.3d 717, 721 (U.S. Foreign Intell. Surveil. Ct. Rev. 2002)
(hereinafter Court of Review op.).

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government’s position, and that the restrictions imposed by the FISA court are not
required by FISA or the Constitution.”153
Discussion of the Opinion. The Court of Review began its analysis by
articulating its view of the May 17th FISC decision. The Court of Review stated that
the FISC appeared to proceed in its opinion from the assumption that FISA
constructed a barrier between counterintelligence/intelligence officials and law
enforcement officers in the Executive Branch, but did not support that assumption
with any relevant language from the statute.154 The Court of Review opined that this
“wall” was implicit in the FISC’s “apparent” belief that “it can approve applications
for electronic surveillance only if the government’s objective is not primarily directed
toward criminal prosecution of the foreign agents for their foreign intelligence
activity,” while referencing neither statutory language in FISA nor USA PATRIOT
Act amendments, which the government argued altered FISA to permit an application
even if criminal prosecution was the primary goal.155 Instead, the Court of Review
noted that the FISC relied upon its statutory authority to approve “minimization
procedures” in imposing the restrictions at issue.
The Court of Review stated that the government raised two main arguments:
First, DOJ contended that the restriction, recognized by several courts of appeals 156
153 Id. at 719-20.
154 Id. at 721.
155 Id.
156 The cases to which this appears to refer include decisions by both U.S. courts of appeals
and U.S. district courts. Past cases considering the constitutional sufficiency of FISA in the
context of electronic surveillance have rejected Fourth Amendment challenges and due
process challenges under the Fifth Amendment to the use of information gleaned from a
FISA electronic surveillance in a subsequent criminal prosecution, because the purpose of
the FISA electronic surveillance, both initially and throughout the surveillance, was to
secure foreign intelligence information and not primarily oriented towards criminal
investigation or prosecution, United States v. Megahey, 553 F. Supp. 1180, 1185-1193
(D.N.Y.), aff’d without opinion, 729 F.2d 1444 (2d Cir. 1982), re-aff’d post-trial sub nom
United States v. Duggan, 743 F.2d 59 (2d Cir. 1984); United States v. Ott, 827 F.2d 473, 475
(9th Cir. 1987); United States. v Badia, 827 F. 2d 1458, 1464 (11th Cir. 1987). See also,
United States v. Johnson, 952 F.2d 565, 572 (1st Cir. 1991), rehearing and cert. denied, 506
U.S. 816 (1991) (holding that, although evidence obtained in FISA electronic surveillance
may later be used in a criminal prosecution, criminal investigation may not be the primary
purpose of the surveillance, and FISA may not be used as an end-run around the 4th
Amendment); United States v. Pelton, 835 F.2d 1067, 1074-76 (4th Cir. 1987), cert. denied,
486 U.S.1010 (1987) (holding that electronic surveillance under FISA passed constitutional
muster where the primary purpose of surveillance, initially and throughout surveillance, was
gathering of foreign intelligence information; also held that an otherwise valid FISA
surveillance was not invalidated because later use of the fruits of the surveillance in criminal
prosecution could be anticipated. In addition, the court rejected Pelton’s challenge to FISA
on the ground that allowing any electronic surveillance on less than the traditional probable
cause standard — i.e. probable cause to believe the suspect has committed, is committing,
or is about to commit a crime for which electronic surveillance is permitted, and that the
interception will obtain communications concerning that offense — for issuance of a search
(continued...)

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156 (...continued)
warrant was violative of the Fourth Amendment, finding FISA’s provisions to be reasonable
both in relation to the legitimate need of Government for foreign intelligence information
and the protected rights of U.S. citizens ); United States v. Cavanaugh, 807 F.2d 787, 790-91
(9th Cir. 1987) (defendant, convicted of espionage, appealed district court’s refusal to
suppress fruits of FISA electronic surveillance which intercepted defendant offering to sell
defense secrets to representatives of Soviet Union. In affirming conviction, appellate court
found FISA procedures had been followed, and upheld FISA against constitutional
challenges. Court found, in part, that FISA probable cause requirement was reasonable
under Fourth Amendment standard. “The application must state that the target of the
electronic surveillance is a foreign power or an agent of a foreign power, and must certify
that the purpose of the surveillance is to obtain foreign intelligence information and that the
information cannot reasonably be obtained by normal investigative techniques. 50 U.S.C.
§ 1804(a). It is true, as appellant points out in his brief, that the application need not state
that the surveillance is likely to uncover evidence of a crime; but as the purpose of the
surveillance is not to ferret out criminal activity but rather to gather intelligence, such a
requirement would be illogical. See United States District Court, 407 U.S. at 322
(recognizing distinction between surveillance for national security purposes and surveillance
of ‘ordinary crime’); . . . And . . . there is no merit to the contention that he is entitled to
suppression simply because evidence of his criminal conduct was discovered incidentally
as the result of an intelligence surveillance not supported by probable cause of criminal
activity. See Duggan, 743 F.2d at 73n.5.”) United States v. Rahman, 861 F. Supp. 247, 251
(S.D. N.Y. 1994). Cf., United States v. Bin Laden, 2001 U.S. Dist. LEXIS 15484 (S.D.
N.Y., October 2, 2001); United States v. Bin Laden, 126 F. Supp. 264, 277-78 (S.D. N.Y.
2000) (adopting foreign intelligence exception to the warrant requirement for searches
targeting foreign powers or agents of foreign powers abroad; noting that this “exception to
the warrant requirement applies until and unless the primary purpose of the searches stops
being foreign intelligence collection. . . . If foreign intelligence collection is merely a
purpose and not the primary purpose of a search, the exception does not apply.”)
Cf., United States v. Sarkissian, 841 F.2d 959, 964-65 (9th Cir. 1988) (FISA court order
authorized electronic surveillance, which resulted in the discovery of plan to bomb the
Honorary Turkish Consulate in Philadelphia, and of the fact that bomb components were
being transported by plane from Los Angeles. The FBI identified likely airlines, flight
plans, anticipated time of arrival, and suspected courier. Shortly before the arrival of a
flight fitting these parameters, the investigation focused upon an individual anticipated to
be a passenger on that flight. An undercover police officer spotted a man matching the
suspected courier’s description on that flight. The luggage from that flight was sniffed by
a trained dog and x-rayed. A warrantless search was conducted of a suitcase that had been
shown by x-ray to contain an unassembled bomb. Defendants unsuccessfully moved to
suppress the evidence from the FISA wiretap and the warrantless search. On appeal the
court upheld the warrantless suitcase search as supported by exigent circumstances.
Defendants contended that the FBI’s primary purpose for the surveillance had shifted at the
time of the wiretap from an intelligence investigation to a criminal investigation and that
court approval for the wiretap therefore should have been sought under Title III of the
Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510 et seq., rather than FISA.
The court, while noting that in other cases it had state that “the purpose of [electronic]
surveillance” under FISA “must be to secure foreign intelligence information,” “not to ferret
out criminal activity;” declined to decide the issue of whether the applicable standard was
that “the purpose” or that “the primary purpose” of a FISA surveillance must be gathering
of foreign intelligence information. The court stated, “Regardless of whether the test is one
of purpose or primary purpose, our review of the government’s FISA materials convinces
(continued...)

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prior to the enactment of the USA PATRIOT Act, that FISA could only be used if the
government’s primary purpose in gathering foreign intelligence information was not
criminal prosecution, was not supported by the statutory language or the legislative
history of FISA. This argument was not presented to the FISC, but the Court of
Review indicated that it could entertain the argument, because proceedings before the
FISC and before the Court of Review were ex parte.157 Second, the government
argued that, even if the primary purpose test was appropriate prior to the passage of
the USA PATRIOT Act, the amendments made by that act eliminated that concept.
The government also argued that the FISC’s interpretation of the minimization
procedures provisions misconstrued those provisions and amounted to “an end run”
around the USA PATRIOT Act amendments. DOJ argued further that the FISC
minimization procedures so intruded into the Department’s operations as to be
beyond the constitutional authority of Article III judges. Finally, DOJ contended that
application of the primary purpose test in a FISA case was not constitutionally
compelled under the Fourth Amendment.
156 (...continued)
us that it is met in this case. . . . We refuse to draw too fine a distinction between criminal
and intelligence investigations. “International terrorism,” by definition, requires the
investigation of activities that constitute crimes. 50 U.S.C. § 1806(f). That the government
may later choose to prosecute is irrelevant. FISA contemplates prosecution based on
evidence gathered through surveillance. . . . “Surveillances . . . need not stop once
conclusive evidence of a crime is obtained, but instead may be extended longer where
protective measures other than arrest and prosecution are more appropriate.” S. Rep. No.
701, 95th Cong., 1st Sess. 11 . . . [(1978)]. . . . FISA is meant to take into account “the
differences between ordinary criminal investigations to gather evidence of specific crimes
and foreign counterintelligence investigations to uncover and monitor clandestine activities
. . .” Id. . . . . At no point was this case an ordinary criminal investigation.”). Cf., United
States v. Falvey, 540 F. Supp. 1306 (E.D.N.Y. 1982) (distinguishing United States v. Truong
Dinh Hung, 629 F.2d 908, 912-13 (4th Cir. 1980); and United States v. Butenko, 494 F.d
593, 606 (3d Cir.) (en banc), cert. denied sub nom, Ivanov v. United States, 419 U.S. 881
(1974), which held that, while warrantless electronic surveillance for foreign intelligence
purposes was permissible, when the purpose or primary purpose of the surveillance is to
obtain evidence of criminal activity, evidence obtained by warrantless electronic
surveillance is inadmissible at trial, 540 F. Supp. at 1313. In addressing the theory that the
evidence in the case before it was obtained pursuant to a warrant, a lawfully obtained court
order under FISA, id. at 1314, the court observed that the “bottom line of Truong is that
evidence derived from warrantless foreign intelligence searches will be admissible in a
criminal proceeding only so long as the primary purpose of the surveillance is to obtain
foreign intelligence information.” Id. at 1313-14. After noting that Congress, in enacting
FISA, “expected that evidence derived from FISA surveillances could then be used in a
criminal proceeding,” the court concluded that “it was proper for the FISA judge to issue
the order in this case because of the on-going nature of the foreign intelligence investigation.
. . . The fact that evidence of criminal activity was thereafter uncovered during the
investigation does not render the evidence inadmissible. There is no question in [the
court’s] mind that the purpose of the surveillance, pursuant to the order, was the acquisition
of foreign intelligence information. Accordingly, [the court found] that the FISA procedures
on their face satisfy the Fourth Amendment warrant requirement, and that FISA was
properly implemented in this case.” Id. at 1314.).
157 Court of Review op., 310 F.3d at 722 n.6.

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The Court of Review noted that, as enacted in 1978, FISA authorized the grant
of an application for electronic surveillance to obtain foreign intelligence information
if there is probable cause to believe that “the target of the electronic surveillance is
a foreign power or an agent of a foreign power,”158 and that “each of the facilities or
places at which the surveillance is directed is being used, or is about to be used by a
foreign power or an agent of a foreign power.”159 The reviewing court focused upon
the close connection between criminal activity and the definitions of “agent of a
foreign power” applicable to United States persons contained in 50 U.S.C. §§
1801(b)(2)(A) and (C), to wit: “any person who ‘knowingly engages in clandestine
intelligence activities . . . which activities involve or may involve a violation of the
criminal statutes of the United States,’ or ‘knowingly engages in sabotage or
international terrorism, or activities that are in preparation therefor.’”160 The court
noted further that FISA defined “international terrorism” to mean “activities that
‘involve violent acts or acts dangerous to human life that are a violation of the
criminal laws of the United States or of any State, or that would be a criminal
158 The Court of Review did not include in its quotation of 50 U.S.C. § 1805(a)(3)(A) the
proviso that follows the quoted language: “Provided, That no United States person may be
considered a foreign power or an agent of a foreign power solely upon the basis of activities
protected by the first amendment to the Constitution of the United States.”
159 Court of Review op., 310 F.3d at 722, quoting portions of 50 U.S.C. § 1805(a)(3).
160 Id. at 723 (emphasis added by the Court of Review). The definitions of “agent of a
foreign power” which apply to “any person” (including, by implication, United States
persons) are set forth in 50 U.S.C. § 1801(b)(2). This subsection now contains five
subparagraphs:
(b) “Agent of a foreign power” means —
. . .
(2) any person who —
(A) knowingly engages in clandestine intelligence gathering activities
for or on behalf of a foreign power, which activities involve or may involve
a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of
a foreign power, knowingly engages in any other clandestine intelligence
activities for or on behalf of such foreign power, which activities involve
or are about to involve a violation of the criminal statutes of the United
States;
(C) knowingly engages in sabotage or international terrorism, or
activities that are in preparation therefor, for or on behalf of a foreign
power;
(D) knowingly enters the United States under a false or fraudulent
identity for or on behalf of a foreign power, or, while in the United States,
knowingly assumes a false or fraudulent identity for or on behalf of a
foreign power; or
(E) knowingly aids or abets any person in the conduct of activities
described in subparagraph (A), (B), or (C) or knowingly conspires with any
person to engage in activities described in subparagraph (A), (B), or (C).
The current subparagraph (D) was added in 1999, and the former subparagraph (D) was
redesignated subparagraph (E).

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violation if committed within the jurisdiction of the United States or any State.’”161
“Sabotage,” as defined by FISA, covers activities that “‘involve a violation of chapter
105 of [the criminal code] [18 U.S.C. §§ 2151-2156], or that would involve such a
violation if committed against the United States.’”162 For purposes of its opinion, the
Court of Review described these types of crimes as “foreign intelligence crimes.”163
161 Id. at 723, quoting 50 U.S.C. § 1801(c)(1) (emphasis added by the Court of Review). The
remainder of the definition of “international terrorism” under 50 U.S.C. § 1801(c)(2) and
(3) adds two more criteria for activities to be considered to be within this definition:
(c) “International terrorism” means activities that —
. . .
(2) appear to be intended —
(A) to intimidate or coerce a civilian population;
(B) to influence the policy of a government by intimidation or
coercion; or
(C) to affect the conduct of a government by assassination or
kidnapping; and
(3) occur totally outside the United States, or transcend national boundaries
in terms of the means by which they are accomplished, the persons they appear
to coerce or intimidate, or the locale in which their perpetrators operate or seek
asylum.
162 Court of Review slip op. at 10, quoting 50 U.S.C. § 1801(d).
163 Although later acknowledging the possibility that the Justice Department had accepted
the dichotomy between foreign intelligence gathering and law enforcement purposes “in an
effort to conform to district court holdings,” Court of Review op., 310 F.3d at 727, (most of
the published decisions were court of appeals decisions rather than district court decisions)
the Court of Review expressed puzzlement that “the Justice Department, at some point
during the 1980’s, began to read the statute as limiting the Department’s ability to obtain
FISA orders if it intended to prosecute the targeted agents — even for foreign intelligence
crimes,” while noting that 50 U.S.C. § 1804 at the time required that “a national security
official in the Executive Branch — typically the Director of the FBI — . . . certify that ‘the
purpose’ of the surveillance was to obtain foreign intelligence information (amended by the
Patriot Act to read ‘a significant purpose.’)” Id. at 723. The court did, however, discuss a
series of 1982-1991 cases upholding the constitutional sufficiency of electronic surveillance
under FISA as long as “the primary purpose” of the surveillance was gathering foreign
intelligence information, rather than criminal prosecution. If foreign intelligence gathering
was the primary purpose of a FISA electronic surveillance, initially and throughout the
surveillance, and FISA was not being used as “an end run around the 4th Amendment,” the
courts permitted use of the fruits of the surveillance in subsequent criminal prosecutions.
See the discussion of these cases at fn. 156, supra, of this report. This “primary purpose”
approach to these FISA cases appears consistent with the “primary purpose” approach taken
in a number of pre-FISA cases involving Fourth Amendment challenges to warrantless
foreign intelligence surveillances. See constitutional analyses in United States v. Brown,
484 F.2d 418 (5th Cir. 1973), cert. denied, 415 U.S. 960 (5th Cir. 1974); United States v.
Butenko, 494 F.2d 593 (3rd Cir. 1974) , cert. denied sub nom, Ivanov v. United States, 419
U.S. 881 (1974), and Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975), cert. denied, 425
U.S. 944 (1976); along with the Supreme Court’s analysis, in a domestic surveillance
context, in the Keith case, United States v. United States District Court, 407 U.S. 297
(1972), discussed in the “Background” section of this report, supra. The Court of Review
appears to discount the significance of these decisions because the courts involved upheld
(continued...)

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The court observed that, as passed in 1978, 50 U.S.C. §1804 required a national
security official of the Executive Branch, usually the FBI Director,164 to certify that
“the purpose” of the electronic surveillance under FISA was to obtain foreign
intelligence information, and opined that “it is virtually impossible to read the 1978
FISA to exclude from its purpose the prosecution of foreign intelligence crimes, most
importantly because, as we have noted, the definition of an agent of a foreign power
— if he or she is a U.S. person — is grounded on criminal conduct.”165 It found
further support for its view that “foreign intelligence information” included evidence
of “foreign intelligence crimes” from the legislative history as reflected in H.Rept. 95-
1283 and S.Rept. 95-701, 166 while acknowledging that the House report also stated
that FISA surveillances “are not primarily for the purpose of gathering evidence of
a crime. They are to obtain foreign intelligence information, which when it concerns
163 (...continued)
lower court decisions permitting admission of information gathered under FISA in criminal
trials. The Court of Review stated, “It may well be that the government itself, in an effort
to conform to district court holdings, accepted the dichotomy it now contends is false. Be
that as it may, since the cases that “adopt” the dichotomy do affirm district court opinions
permitting the introduction of evidence gathered under a FISA order, there was not much
need for the courts to focus on the opinion with which we are confronted.” Court of Review
op.
, 310 F.3d at 727.
164 The pertinent language of 50 U.S.C. § 1804(a)(7) as passed in 1978 provided that each
application for an order authorizing electronic surveillance under FISA shall include:
(7) a certification or certifications by the Assistant to the President for
National Security Affairs or an executive branch official or officials designated
by the President from those executive officers employed in the area of national
security or defense and appointed by the President with the advice and consent
of the Senate —
(A) that the certifying official deems the information sought to be
foreign intelligence information;
(B) that the purpose of the surveillance is to obtain foreign
intelligence information;
(C) that such information cannot reasonably be obtained by normal
investigative techniques;
(D) that designates the type of foreign intelligence information being
sought according to the categories described in section 1801(e) of this title;
and
(E) including a statement of the basis for the certification that —
(i) the information sought is the type of foreign intelligence
information designated; and
(ii) such information cannot reasonably be obtained by normal
investigative techniques[.]
Under 50 U.S.C. § 1804(d) as passed in 1978 and under current law, “The judge may require
the applicant to furnish such other information as may be necessary to make the
determinations required by section 1805 of this title.”
165 Court of Review op., 310 F.3d at 723.
166 Id. at 724-25, citing H.Rept. 95-1283, at 49 (1978) and S.Rept. 95-701, at 10-11 (1978).

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United States persons must be necessary to important national concerns.”167 The
Court of Review regarded the latter statement as an observation rather than a
proscription.168
The Court of Review saw the U.S. Court of Appeals for the Fourth Circuit’s
decision in United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), a
decision based upon constitutional analysis rather than FISA provisions, as the
springboard for the “primary purpose” test cases interpreting FISA and upholding
FISA surveillances against Fourth Amendment challenges.169 After reviewing a
number of the FISA cases applying the primary purpose test, the Court of Review
concluded that a dichotomy between foreign intelligence gathering and criminal
investigations implicit in the application of the primary purpose test was not
statutorily compelled. The court found that FISA, as originally passed, did not
“preclude or limit the government’s use or proposed use of foreign intelligence
information, which included evidence of certain kinds of criminal activity, in a
criminal prosecution.”170 In addition, the Court of Review, relying on arguments of
the Department of Justice and the language of subsection 1805(a)(5), interpreted 50
U.S.C. §§ 1805 of FISA as originally enacted as not contemplating that the [FISC]
would inquire into the government’s purpose in seeking foreign intelligence
information.171
167 H.Rept. 95-1283, at 36 (1978).
168 Court of Review op., 310 F.3d at 725.
169 Although Truong Dinh Hung was among the cases cited by some of the subsequent FISA
cases, a “primary purpose” test had been previously applied in the 1974 Third Circuit
decision in Butenko, supra, upholding a warrantless electronic surveillance in the face of
challenges based upon the Fourth Amendment and Section 605 of the Communications Act
where the primary purpose of the investigation was gathering foreign intelligence
information. See discussion in the “Background” section of this report, supra, as well as
the summary of this and other cases at fns. 156 and 163, supra.
170 Court of Review op., 310 F.3d at 727.
171 Id. at 723-24, 728. Section 1805(a), as enacted in 1978, set forth the necessary findings
that a judge of the FISC had to make in order to enter an ex parte order as requested or as
modified approving electronic surveillance under FISA:
(1) the President has authorized the Attorney General to approve
applications for electronic surveillance for foreign intelligence information;
(2) the application has been made by a Federal officer and approved by the
Attorney General;
(3) on the basis of the facts submitted by the applicant there is probable
cause to believe that —
(A) the target of the electronic surveillance is a foreign power or an
agent of a foreign power: Provided, That no United States person may be
considered a foreign power or an agent of a foreign power solely upon the
basis of activities protected by the first amendment to the Constitution of
the United States; and
(B) each of the facilities or places at which the electronic surveillance
is directed is being used, or is about to be used, by a foreign power or an
agent of a foreign power;
(continued...)

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Further, the court rejected the FISC’s characterization of the Attorney General’s
1995 procedures, as modified and augmented in January 2000 and August 2001, as
minimization procedures. These procedures were formally adopted by the FISC as
minimization procedures defined in 50 U.S.C. §§ 1801(h) and 1821(4) in November
2001, after passage of the USA PATRIOT Act, and were incorporated in all
applicable orders and warrants granted since their adoption by the FISC. On March
6, 2002, the Attorney General adopted new “Intelligence Sharing Procedures,”
intended to supercede prior procedures, to “allow complete exchange of information
and advice between intelligence and law enforcement officials,” to “eliminate the
‘direction and control’ test,” and to permit “exchange of advice between the FBI,
OIPR, and the Criminal Division regarding ‘the initiation, operation, continuation,
or expansion of FISA searches or surveillance.”172 The following day, the
government filed a motion with the FISC advising the court of the Attorney General’s
adoption of the 2002 procedures, seeking to have that court adopt the new procedures
in all matters before the FISC and asking the court to vacate its orders adopting the
prior procedures as minimization procedures and imposing “wall” procedures in
certain types of cases. That motion led to the FISC decision to adopt the 2002
procedures with modifications that was, by reference, before the Court of Review in
its November 18, 2002, decision.
The Court of Review characterized the FISC’s adoption of the Justice
Department’s 1995 procedures, as modified and augmented, as minimization
procedures as follows:
Essentially, the FISA court took portions of the Attorney General’s
augmented 1995 Procedures — adopted to deal with the primary purpose
standard — and imposed them generically as minimization procedures. In doing
so, the FISA court erred. It did not provide any constitutional basis for its action
— we think there is none — and misconstrued the main statutory provision on
which it relied. The court mistakenly categorized the augmented 1995
Procedures as FISA minimization procedures and then compelled the government
to utilize a modified version of those procedures in a way that is clearly
inconsistent with the statutory purpose.173
The Court of Review interpreted “minimization procedures” under 50 U.S.C. §
1801(h) to be designed to protect, as far as reasonable, against the acquisition,
retention, and dissemination of nonpublic information which is not foreign
intelligence information. In light of the Court of Review’s interpretation of
“minimization procedures” under 50 U.S.C. § 1801(h), the court found no basis for
171 (...continued)
(4) the proposed minimization procedures meet the definition of
minimization procedures under section 1801(h) of this title;
(5) the application which has been filed contains all statements and
certifications required by section 1804 of this title and, if the target is a United
States person, the certification or certifications are not clearly erroneous on the
basis of the statement made under section 1804(a)(7)(E) of this title and any
other information furnished under section 1804(d) of this title.
172 Court of Review op., 310 F.3d at 729.
173 Id. at 730.

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the FISC’s reliance upon that section “to limit criminal prosecutors’ ability to advise
FBI intelligence officials on the initiation, operation, continuation, or expansion of
FISA surveillances to obtain foreign intelligence information, even if such
information includes evidence of a foreign intelligence crime.”174
In addition, the Court of Review found that the FISC had misconstrued its
authority under 50 U.S.C. § 1805 and misinterpreted the definition of minimization
procedures under 50 U.S.C. § 1801(h). The Court of Review expressed approbation
for the Government’s argument that the FISC, in imposing the modified 1995
procedures upon the Department of Justice as minimization procedures, “may well
have exceeded the constitutional bounds that restrict an Article III court. The FISA
court asserted authority to govern the internal organization and investigative
procedures of the Department of Justice which are the province of the Executive
Branch (Article II) and the Congress (Article I).”175

The Court of Review deemed the FISC’s “refusal . . . to consider the legal
significance of the Patriot Act’s crucial amendments [to be] error.”176 The appellate
court noted that, as amended by the USA PATRIOT Act, the requirement in 50
U.S.C. § 1804(a)(7)(B) that the Executive Branch officer certify that “the purpose”
of the FISA surveillance or physical search was to gather foreign intelligence
information had been changed to “a significant purpose.”177 The court noted that
floor statements indicated that this would break down traditional barriers between law
enforcement and foreign intelligence gathering,178 making it easier for law
enforcement to obtain FISA court orders for surveillance or physical searches where
the subject of the surveillance “is both a potential source of valuable intelligence and
the potential target of a criminal prosecution.”179 The court noted that some Members
raised concerns about the Fourth Amendment implications of this language change
which permitted the Government to obtain a court order under FISA “even if the
174 Id. at 731.
175 Id. at 731-32.
176 Id. at 732.
177 Id. at 728-29, 732-33.
178 Id. at 732, quoting Sen. Leahy, 147 Cong. Rec. S10992 (Oct. 25, 2001).
179 Id. at 733, quoting Sen. Feinstein, 147 Cong. Rec. S10591 (Oct. 11, 2001). In Section
13.5 of Chapter 13 of its Final Report, at 424, the 9/11 Commission, in discussing the
future role of the FBI, observes in part:
Counterterrorism investigations in the United States very quickly become matters
that involve violations of criminal law and possible law enforcement action.
Because the FBI can have agents working criminal matters and agents working
intelligence investigations concerning the same international terrorism target, the
full range of investigative tools against a suspected terrorist can be considered
within one agency. The removal of the “wall” that existed before 9/11 between
intelligence and law enforcement has opened up new opportunities for
cooperative action within the FBI.

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primary purpose is a criminal investigation.”180 Interestingly, although the Court of
Review did not regard a dichotomy between foreign intelligence gathering and law
enforcement purposes as necessarily implied by the 1978 version of 50 U.S.C. §
1804(a)(7)(B), the court viewed the statutory change from “the purpose” to “a
significant purpose” in the USA PATRIOT Act as recognizing such a dichotomy.181
The Court of Review disagreed with the FISC interpretation of the consultation
authority under 50 U.S.C. § 1806(k).182 The Court of Review saw this provision as
one which reflected the elimination of barriers between law enforcement and
intelligence or counterintelligence gathering, without a limitation on law enforcement
officers directing or controlling FISA surveillances. “[W]hen Congress explicitly
authorizes consultation and coordination between different offices in the government,
without even suggesting a limitation on who is to direct and control, it necessarily
implies that either could take the lead.”183
In analyzing the “significant purpose” amendment to 50 U.S.C. § 1804(a)(7)(B),
the Court of Review deemed this a clear rejection of the primary purpose test. If
gathering foreign intelligence information is a significant purpose, another purpose
such as criminal prosecution could be primary.184Further, the court found that the term
“significant” “imposed a requirement that the government have a measurable foreign
intelligence purpose, other than just criminal prosecution of even foreign intelligence
crimes. . . . Although section 1805(a)(5) . . . may well have been intended to
authorize the FISA court to review only the question whether the information sought
was a type of foreign intelligence information, in light of the significant purpose
amendment of section 1804, it seems section 1805 must be interpreted as giving the
FISA court the authority to review the government’s purpose in seeking the
information.”185 The Court of Review saw the “significant purpose” language as
“excluding from the purpose of gaining foreign intelligence information a sole
objective of criminal prosecution.”186 If the government, at the commencement of
a FISA surveillance has not yet determined whether to prosecute the target, “[s]o long
as the government entertains a realistic option of dealing with the agent other than
through criminal prosecution, it satisfies the significant purpose test.”187 Under the
Court of Review’s analysis:
If the certification of the application’s purpose articulates a broader objective
than criminal prosecution — such as stopping an ongoing conspiracy — and
includes other potential non-prosecutorial responses, the government meets the
180 Court of Review op., 310 F.3d at 733, quoting Sen. Feingold, 147 Cong. Rec. S11021
(Oct. 25, 2001).
181 Id. at 734-35.
182 Id. at 733-34.
183 Id. at 734.
184 Id. at 734.
185 Id. at 735.
186 Id.
187 Id.

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statutory test. Of course, if the court concluded that the government’s sole
objective was merely to gain evidence of past criminal conduct — even foreign
intelligence crimes — to punish the agent rather than halt ongoing espionage or
terrorist activity, the application should be denied.188
The court stated further that, while ordinary crimes may be intertwined with foreign
intelligence crimes, the FISA process may not be utilized to investigate wholly
unrelated ordinary crimes.189 The Court of Review emphasized that the government’s
purpose as reflected in the Section 1804(a)(7)(B) certification is to be judged by the
FISC on the basis of
. . .the national security officer’s articulation and not by a FISA court inquiry into
the origins of an investigation nor an examination of the personnel involved. It
is up to the Director of the FBI, who typically certifies, to determine the
government’s national security purpose, as approved by the Attorney General or
Deputy Attorney General. . . . That means, perforce, if the FISA court has reason
to doubt that the government has any real non-prosecutorial purpose in seeking
foreign intelligence information it can demand further inquiry into the certifying
officer’s purpose — or perhaps even the Attorney General’s or Deputy Attorney
General’s reasons for approval. The important point is that the relevant purpose
is that of those senior officials in the Executive Branch who have the
responsibility of appraising the government’s national security needs.”190
Turning from its statutory analysis to its examination of whether the statute, as
amended, satisfied Fourth Amendment parameters, the Court of Review compared
the FISA procedures with those applicable to criminal investigations of “ordinary
crimes” under Supreme Court jurisprudence and under the wiretap provisions of Title
III of the Omnibus Crime Control and Safe Streets Act. Relying upon Dalia v. United
States
, 441 U.S. 238, 255 (1979), the court indicated that in criminal investigations,
beyond requiring that searches and seizures be reasonable, the Supreme Court has
interpreted the Fourth Amendment’s warrant requirement to demand satisfaction of
three criteria: a warrant must be issued by a neutral, detached magistrate; those
seeking the warrant must demonstrate to the magistrate that there is probable cause
to believe that the evidence sought will assist in a particular apprehension or
conviction for a particular offense; and the warrant must describe with particularity
the things to be seized and the place to be searched.191
The Court of Review compared the procedures in Title III with those in FISA,
finding in some respects that Title III had higher standards, while in others FISA
included additional safeguards. In both, there was provision for a detached, neutral
magistrate. The probable cause standard in Title III for criminal investigations was
deemed more demanding than that in FISA. Title III requires a showing of probable
cause that a specific individual has committed, is committing, or is about to commit
a particular criminal offense. FISA requires a showing of probable cause that the
188 Id.
189 Id. at 736.
190 Id.
191 Id. at 738.

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target of the FISA investigative technique is a foreign power or an agent of a foreign
power. A foreign power is not defined solely in terms of criminal activity. In the
case of a target who is a U.S. person, the definition of “agent of a foreign power”
contemplates, in part, the involvement of or, in the case of clandestine intelligence
activities for a foreign power, the possibility of criminal conduct. The court regarded
the lesser requirement with respect to criminal activity in the context of clandestine
intelligence activities as to some extent balanced by the safeguard provided by FISA’s
requirement that there be probable cause to believe that the target is acting “for or on
behalf of a foreign power.”192
With regard to the particularity requirement, as to the first element, Title III
requires a finding of probable cause to believe that the interception will obtain
particular communications regarding a specified crime. In contrast, FISA requires an
official to designate the type of foreign intelligence information being sought and to
certify that the information being sought is foreign intelligence information. When
the target of the FISA investigation is a U.S. person, the standard of review applied
by the FISC is whether there is clear error in the certification, a lower standard that
a judicial finding of probable cause. While the FISC can demand that the government
provide further information needed for the court to make its determination as to
whether the certification is clearly erroneous, the statute relies also upon internal
checks on Executive Branch decisions through the requirement that the certification
must be made by a national security officer and approved by the Attorney General or
Deputy Attorney General.
In connection with the second particularity element, Title III
. . . requires probable cause to believe that the facilities subject to surveillance are
being used or are about to be used in connection with commission of a crime or
are leased to, listed in the name of, or used by the individual committing the
crime, 18 U.S.C. § 2518(3)(d), [while] FISA requires probable cause to believe
that each of the facilities or places at which the surveillance is directed is being
used, or is about to be used by a foreign power or agent [of a foreign power]. 50
U.S.C. § 1805(a)(3)(B). . . . Simply put, FISA requires less of a nexus between
the facility and the pertinent communications that Title III, but more of a nexus
between the target and the pertinent communications.”193
The Court of Review also compared Title III to FISA with respect to necessity
(both statutes require that the information sought is not available through normal
investigative procedures, although the standards differ somewhat),194 duration of
192 Id. at 738-39.
193 Id. at 740.
194 For electronic surveillance to be approved, Title III requires a judicial finding that
normal investigative procedures have been tried and have failed or reasonably appear to be
unlikely to succeed if tried or to be too dangerous. 18 U.S.C. § 2518(3)(c). FISA requires
certification by the national security officer involved that the foreign intelligence
information sought cannot reasonably be obtained by normal investigative means. 50 U.S.C.
§ 1804(a)(7)(C). The certification must include a statement of the basis for the certification
that the information sought is the type of foreign intelligence information designated; and
(continued...)

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surveillance (30 days under Title III, 18 U.S.C. § 2518(3)(c), as opposed to 90 days
under FISA for U.S. persons, 50 U.S.C. § 1805(e)(1)),195 minimization and notice.
With respect to minimization, the Court of Review noted that Title III, under 18
U.S.C. § 2518(5), required minimization of what was acquired, directing that
surveillance be carried out “in such a way as to minimize the interception of
communications not otherwise subject to interception under this chapter.” FISA, on
the other hand, “requires minimization of what is acquired, retained, and
disseminated.”196 Observing that the FISC had found “in practice FISA surveillance
devices are normally left on continuously, and the minimization occurs in the process
of indexing and logging the pertinent communications,” the Court of Review deemed
the reasonableness of such an approach to be dependent upon the facts and
circumstances of each case:197
Less minimization in the acquisition stage may well be justified to the extent the
intercepted communications are “ambiguous in nature or apparently involve[]
guarded or coded language,” or “the investigation is focusing on what is thought
to be a widespread conspiracy [where] more extensive surveillance may be
justified in an attempt to determine the precise scope of the enterprise.” . . .
Given the targets of FISA surveillance, it will often be the case that intercepted
communications will be in code or a foreign language for which there is no
contemporaneously available translator, and the activities of foreign agents will
involve multiple actors and complex plots. . . .198
With respect to notice, the Court of Review observed that under 18 U.S.C. §
2518(8)(d), Title III mandated notice to the target of the surveillance and, in the
judge’s discretion, to other persons whose communications were intercepted, after the
surveillance has expired. In contrast, under 50 U.S.C. § 1806(c) and (d), FISA does
not require notice to a person whose communications were intercepted unless the
government intends to use, disclose, or enter into evidence those communications or
derivative information in a trial, hearing, or other proceeding in or before any court,
department, officer, agency, regulatory body, or other federal, state or local authority
194 (...continued)
that such information cannot reasonably be obtained by normal investigative techniques.
50 U.S.C. § 1804(a)(7)(E)(i) and (ii). In issuing an ex parte order granting an application
for electronic surveillance, the FISC judge must find that, in the case of a target who is a
U.S. person, the certifications are not clearly erroneous on the basis of the statement made
under 50 U.S.C. § 1804(a)(7)(e) and any other information furnished under Section 1804(d).
Thus, the relevant findings to be made by the courts under the two statutes differ.
195 Court of Review op., 310 F.3d at 740. The difference, in the court’s view, was “based on
the nature of national security surveillance, which is ‘often long range and involves the
interrelation of various sources and types of information.’ Keith, 407 U.S. at 322; see also
S. Rep. at 16, 56.” The court also noted that in FISA the “longer surveillance period is
balanced by continuing FISA court oversight of minimization procedures during that period.
50 U.S.C. § 1805(e)(3); see also S Rep. at 56.”
196 Id.
197 Id.
198 Id. at 740-41.

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against that person. The Court of Review noted that where such information was to
be used against a criminal defendant, he or she would be given notice, and stated that
“where such evidence is not ultimately going to be used for law enforcement,”
Congress had observed that “[t]he need to preserve secrecy for sensitive
counterintelligence sources and methods justifies elimination of the notice
requirement.”199 In a footnote, the court noted that the Amici had drawn attention to
the difference in the nature of the notice given the defendant or aggrieved person
under Title III as opposed to FISA. Under Title III, a defendant is generally entitled
under 18 U.S.C. § 2518(9) to obtain the application and order to challenge the legality
of the surveillance. However, under FISA, the government must give the aggrieved
person and the court or other authority (or in the case of a state or local use, the state
or political subdivision must give notice to the aggrieved person, the court or other
authority, and the Attorney General) of their intent to so disclose or use
communications obtained from the surveillance or derivative information. In
addition, under 50 U.S.C. §§ 1806(f) and (g), if the Attorney General files an affidavit
under oath that disclosure or an adversary hearing would harm national security, the
U.S. district court may review in camera and ex parte the application, order, and other
materials related to the surveillance, to determine whether the surveillance was
lawfully authorized and conducted, whether disclosure or discovery is necessary, and
whether to grant a motion to suppress. The Court of Review noted that these
determinations are to be made by the U.S. district judge on a case by case basis, and
stated that “whether such a decision protects a defendant’s constitutional rights in a
given case is not before us.”200
Based on this comparison of Title III and FISA, the Court of Review found that
“to the extent that the two statutes diverge in constitutionally relevant areas — in
particular, in their probable cause and particularity showings — a FISA order may not
be a ‘warrant’ contemplated by the Fourth Amendment. . . . Ultimately, the question
becomes whether FISA, as amended by the Patriot Act, is a reasonable response based
on a balance of the legitimate need of the government for foreign intelligence
information to protect against national security threats with the protected rights of
citizens.”201
The court framed the question as follows: “does FISA amplify the President’s
power by providing a mechanism that at least approaches a classic warrant and which
therefore supports the government’s contention that FISA searches are
constitutionally reasonable.” In its analysis, the court first considered whether the
Truong case articulated the correct standard. Truong held that the President had
inherent authority to conduct warrantless searches to obtain foreign intelligence
information, but did not squarely address FISA. Starting from the perspective that
Truong deemed the primary purpose test to be constitutionally compelled as an
application of the Keith case balancing standard, the Court of Review found that the
Truong determination that “once surveillance becomes primarily a criminal
investigation, the courts are entirely competent to make the usual probable cause
199 Id. at 741, quoting S.Rept. 95-701 at 12.
200 Id.
201 Id. at 741-42.

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determination, and . . . individual privacy interests come to the fore and government
foreign policy concerns recede when the government is primarily attempting to form
the basis of a criminal investigation.”202 The Court of Review found that this analysis
was based upon a faulty premise that in the context of criminal prosecution “foreign
policy concerns recede,” and found further that the line the Truong court “sought to
draw was inherently unstable, unrealistic, and confusing.”203 The Court of Review
opined that in the context of counterintelligence, foreign policy concerns did not
recede when the government moved to prosecute. Rather “the government’s primary
purpose is to halt the espionage or terrorism efforts, and criminal prosecutions can be,
and usually are, interrelated with other techniques used to frustrate a foreign power’s
efforts.”204
In addition, the court found that the method of determining when an
investigation became primarily criminal by looking to when the Criminal Division of
the Department of Justice assumed the lead role, had led over time to the “quite
intrusive organizational and personnel tasking the FISA court [had] adopted.”205 The
court found the “wall” procedure to generate dangerous confusion and create perverse
organizational incentives that discouraged wholehearted cooperation of “all the
government’s personnel who can be brought to the task.”206 This the court suggested
could be thought to be dangerous to national security and could be thought to
discourage desirable initiatives.
In addition, the court saw the primary purpose test as administered by the FISC,
“by focusing on the subjective motivation of those who initiate investigations . . . was
at odds with the Supreme Court’s Fourth Amendment cases which regard subjective
motivation of an officer conducting a search or seizure as irrelevant.” 207
Assuming arguendo that FISA orders were not warrants within the scope of the
Fourth Amendment, the Court of Review returned to the question of whether searches
under FISA are constitutionally reasonable. While the Supreme Court has not
considered directly the constitutionality of warrantless government searches for
foreign intelligence purposes, the balance between the government’s interest and
personal privacy interests is key to an examination of this question. The Court of
202 Id. at 742-43, citing Truong, supra, 629 F.2d at 914-15.
203 Id. at 743.
204 Id.
205 Id.
206 Id.
207 Id., citing Whren v. United States, 517 U.S. 806, 13 (1996). See also, Arkansas v.
Sullivan, 532 U.S. 769, 770-72 (2001); Scott v. United States, 438 U.S. 128, 135-138
(1978). In these cases, the Court has held that, in a Fourth Amendment probable cause
analysis of a warrantless search or seizure, the fact that an otherwise lawful search or seizure
may have been made as a pretext for searching for evidence of other criminal behavior does
not render that search or seizure unconstitutional. One might note that the probable cause
standard applicable to a search or seizure in a criminal investigation is different from that
under FISA, so that the pretextual search criminal cases may not be directly analogous to
the FISA situation.

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Review viewed Keith as suggesting that a somewhat relaxed standard might be
appropriate in foreign intelligence crimes as opposed to ordinary crimes.208
The Court of Review then briefly touched upon the Supreme Court’s “special
needs” cases, where the Court upheld searches not based on a warrant or
individualized suspicion in extraordinary circumstances involving “special needs,
beyond the normal need for law enforcement.” In City of Indianapolis v. Edmond,
531 U.S. 32, 42 (2000), the U.S. Supreme Court held that a highway check point
program designed to catch drug dealers was not within the “special needs” exception
to the requirement that a search be based upon individualized suspicion, because “the
government’s ‘primary purpose’ was merely ‘to uncover evidence of ordinary
criminal wrongdoing.’” The Court stated that “the gravity of the threat alone cannot
be dispositive of questions concerning what means law enforcement officers may
employ to pursue a given purpose.”209 The Court relied upon an examination of the
primary purpose of the program, but not the motivations of individual officers, to
determine whether the “special needs” standard had been met. The Supreme Court
noted that an appropriately tailored road block could be used “to thwart an imminent
terrorist attack.”210
After summarizing Edmond, the Court of Review emphasized that it is the nature
of the threat or emergency that took the matter beyond the realm of ordinary crime
control.211 It concluded that, while the gravity of the threat alone cannot be dispositive
of the reasonableness of a search under the Fourth Amendment standard, it is a
critical factor in the analysis. In its view, the “programmatic purpose” of FISA, “to
protect the nation against terrorists and espionage threats directed by foreign powers,”
was one which, from FISA’s inception, was distinguishable from “ordinary crime
control.”212 The Court of Review also concluded that, “[e]ven without taking into
account the President’s inherent constitutional authority to conduct warrantless
foreign intelligence surveillance, we think the procedures and government showings
required under FISA, if they do not meet the minimum Fourth Amendment warrant
standards, certainly come close.”213 Applying the balancing test that it had drawn
from Keith between foreign intelligence crimes and ordinary crimes, the Court of
Review held surveillances under FISA, as amended by the USA PATRIOT Act, were
reasonable and therefore constitutional. In so doing, however, the Court of Review
acknowledge[d] . . . that the constitutional question presented by this case —
whether Congress’ disapproval of the primary purpose test is consistent with the
Fourth Amendment — has no definitive jurisprudential answer. The Supreme
Court’s special needs cases involve random stops (seizures) not electronic
searches. In one sense, they can be thought of as a greater encroachment into
personal privacy because they are not based on any particular suspicion. On the
208 Id. at 744.
209 531 U.S. at 42, cited in Court of Review op., 310 F.3d at 745.
210 531 U.S. at 44, cited in Court of Review op., 310 F.3d at 746.
211 Court of Review op., 301 F.3d at 746.
212 Id.
213 Id.

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other hand, wiretapping is a good deal more intrusive than an automobile stop
accompanied by questioning.214
The Court of Review reversed the FISC’s orders before it for electronic surveillance
“to the extent they imposed conditions on the grant of the government’s applications,
vacate[d] the FISA court’s Rule 11, and remand[ed] with instructions to grant the
applications as submitted and proceed henceforth in accordance with this opinion.”215
50 U.S.C. § 1803(b) provides that, where the Court of Review upholds a denial
by the FISC of a FISA application, the United States may file a petition for certiorari
to the United States Supreme Court. Since consideration of applications for FISA
orders is ex parte, there is no provision in FISA for an appeal to the United States
Supreme Court from a decision of the Court of Review by anyone other than the
United States. Nevertheless, on February 18, 2003, a petition for leave to intervene
and a petition for writ of certiorari to the U.S. Foreign Intelligence Surveillance Court
of Review was filed in this case in the U.S. Supreme Court by the American Civil
Liberties Union, National Association of Criminal Defense Lawyers, American-Arab
Anti-Discrimination Committee, and the Arab Community Center for Economic and
Social Services. On March 14, 2003, the Bar Association of San Francisco filed a
motion to file an amicus curiae brief in support of the motion to intervene and petition
for certiorari. On March 24, 2003, the Supreme Court denied the motion for leave to
intervene in order to file a petition for a writ of certiorari and denied the motion for
leave to file an amicus curiae brief.216
Conclusion
The Foreign Intelligence Surveillance Act, as amended, provides a statutory
structure to be followed where electronic surveillance, 50 U.S.C. § 1801 et seq.,
physical searches, 50 U.S.C. § 1821 et seq., or pen registers or trap and trace devices,
50 U.S.C. § 1841 et seq., for foreign intelligence gathering purposes are
contemplated. In addition, it provides a statutory mechanism for the FBI to seek
production of “any tangible things” for an investigation seeking foreign intelligence
information not involving a U.S. person or to protect against international terrorism
or clandestine intelligence with respect to any person under 50 U.S.C. § 1861. FISA
creates enhanced procedural protections where a United States person is involved,
while setting somewhat less stringent standards where the surveillance involves
foreign powers or agents of foreign powers. With its detailed statutory structure, it
appears intended to protect personal liberties safeguarded by the First and Fourth
Amendments while providing a means to ensure national security interests.
214 Id.
215 Id.
216 American Civil Liberties Union v. United States, Docket No. 02M69, 538 U.S. 920
(March 24, 2003). The disposition of the case appears on the Supreme Court’s Order List
for that date. It is interesting to note that both the Petition for Leave to Intervene and
Petition for a Writ of Certiorari filed by the American Civil Liberties Union, et al., and the
motion to file an amicus curiae brief of the Bar Association of San Francisco were filed
under the name In re: Sealed Case of the Foreign Intelligence Surveillance Court of Review
No. 02-001.

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The USA PATRIOT Act, P.L. 107-56, increased the number of FISC judges
from 7 to 11, while expanding the availability of FISA electronic surveillance,
physical searches and pen registers and trap and trace devices. For example, under
P.L. 107-56, an application for a court order permitting electronic surveillance or a
physical search under FISA is now permissible where “a significant purpose” of the
surveillance or physical search, rather than “the purpose” or, as interpreted by some
courts, “the primary purpose” of the surveillance or physical search, is to gather
foreign intelligence information. While the previous language withstood
constitutional challenge, the Supreme Court has not yet determined the constitutional
sufficiency of the change in the FISA procedures under the Fourth Amendment. On
the other hand, the U.S. Foreign Intelligence Court of Review has examined a number
of constitutional issues in In re Sealed Case, finding that FISA orders, if not
satisfying the constitutional warrant requirement, are close to doing so; and finding
that, even if a FISA order does not qualify as a warrant for Fourth Amendment
purposes, electronic surveillance under FISA as amended by the USA PATRIOT Act
is reasonable and therefore constitutional. At the same time, however, the Court of
Review acknowledged that the constitutional question of whether Congress’
disapproval of the primary purpose test is consistent with the Fourth Amendment “has
no definitive jurisprudential answer.”217
The USA PATRIOT Act also amended FISA to allow court orders permitting
so-called multipoint or “roving” electronic surveillance, where the orders do not
require particularity with respect to the identification of the instrument, place, or
facility to be intercepted, upon a finding by the court that the actions of the target of
the surveillance are likely to thwart such identification. P.L. 107-108 further
clarified this authority.
Under P.L. 107-56, pen registers and trap and trace devices may now be
authorized for e-mails as well as telephone conversations. In addition, the act
expanded the previous FBI access to business records, permitting court ordered access
in connection with a foreign intelligence or international terrorism investigation not
just to business records held by common carriers, public accommodation facilities,
physical storage facilities, and vehicle rental facilities, but to any tangible things.
While expanding the authorities available for foreign intelligence investigations,
FISA, as amended by the USA PATRIOT Act and the Intelligence Authorization Act
for FY2002, also contains broader protections for those who may be the target of the
various investigative techniques involved. For example, whether the circumstances
involve electronic surveillance, physical searches, pen registers or trap and trace
devices or access to business records and other tangible items, FISA, as amended by
the USA PATRIOT Act, does not permit the court to grant orders based solely upon
a United States person’s exercise of First Amendment rights.218
In addition, P.L. 107-56 created a new private right of action for persons
aggrieved by inappropriate disclosure or use of information gleaned or derived from
217 Court of Review op., 310 F.3d at 746.
218 See, e.g.,50 U.S.C. §§ 1805(a)(3)(A), 1824(a)(3)(A), 1842(a)(1), 1843(b), 1861(a)(1), and
1861(a)(2).

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electronic surveillance, physical searches or the use of pen registers or trap and trace
devices. These claims can be brought against the United States for certain willful
violations by government personnel.
Finally, the inclusion of a sunset provision for the FISA changes made in the
USA PATRIOT Act, with the exception of the increase in the number of FISC judges,
provides an opportunity for the new authorities to be utilized and considered, and an
opportunity for the Congress to revisit them in light of that experience.
Sections 898 and 899 of the Homeland Security Act of 2002, P.L. 107-296,
amended FISA, 50 U.S.C. §§1806(k)(1) and 1825(k)(1) respectively, to permit
federal officers conducting electronic surveillance or physical searches to acquire
foreign intelligence information under FISA to consult with federal law enforcement
officers “or law enforcement personnel of a state or political subdivision of a State
(including the chief executive officer of that State or political subdivision who has the
authority to appoint or direct the chief law enforcement officer of that State or
political subdivision).” Such consultations are to coordinate efforts to investigate or
protect against actual or potential attacks or other grave hostile acts of a foreign
power or an agent of a foreign power; sabotage or international terrorism by a foreign
power or an agent of a foreign power; or clandestine intelligence activities by an
intelligence service or network of a foreign power or an agent of a foreign power.
These sections also state that such consultations do not preclude the Assistant to the
President for National Security Affairs or other designated Executive Branch officials
from making the necessary certifications as part of the application process for a FISA
court order under 50 U.S.C. §§ 1804(a)(7) or 1823(a)(7), nor are these consultations
to preclude entry of an order under 50 U.S.C. §§ 1805 or 1824.219
219 Section 897 of the Homeland Security Act of 2002, which dealt with “Foreign
Intelligence Information,” amended Section 203(d)(1) of the USA PATRIOT Act, 50 U.S.C.
§ 403-5d(1), to provide authority, consistent with the responsibility of the DCI to protect
intelligence sources and methods and that of the Attorney General to protect sensitive law
enforcement information,
for information revealing a threat of an actual or potential attack or other grave
hostile acts of a foreign power or an agent of a foreign power, domestic or
international sabotage, domestic or international terrorism, or clandestine
intelligence gathering activities by an intelligence service or network of an
foreign power or by an agent of a foreign power, within the United States or
elsewhere, obtained as part of a criminal investigation to be disclosed to any
appropriate Federal, State, local, or foreign government official for the purpose
of preventing or responding to such a threat. Any official who receives
information pursuant to this provision may use that information only as necessary
in the conduct of that person’s official duties subject to any limitations on the
unauthorized disclosure of such information, and any State, local, or foreign
official who receives information pursuant to this provision may use that
information only consistent with such guidelines as the Attorney General and the
Director of Central Intelligence shall jointly issue.
In light of the Court of Review’s interpretation of “foreign intelligence information” under
FISA as including investigations of what the Court of Review termed “foreign intelligence
(continued...)

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Section 6001 of Title VI of FISA, as added by the Intelligence Reform and
Terrorism Prevention Act of 2004, P.L. 108-458, expanded the definition of “agent
of a foreign power” in the context of non-U.S. persons to encompass those who
engage in international terrorism or in activities in preparation for international
terrorism, regardless of whether they have any connection or affiliation with a foreign
government or other foreign organization or entity. This new definition is included
among those FISA provisions subject to the sunset provisions in Section 224 of the
USA PATRIOT Act. Section 6002 of the new Title VI of FISA also imposed new,
detailed semiannual reporting requirements to facilitate congressional oversight of the
implementation of the Act.
In addition to examining the statutory structure in FISA, as amended, this report
has explored two published decisions, one from the FISC in In re All Matters
Submitted to the Foreign Intelligence Surveillance Court
and one from the U.S.
Foreign Intelligence Court of Review in In re Sealed Case. Because historically the
decisions of the FISC have not been made public, and because the opinion of the U.S.
Foreign Intelligence Surveillance Court of Review discussed in this report was the
first decision ever made by that court, the recent decisions of the FISC and the Court
of Review provided a unique opportunity to observe the decision-making processes
and differing perspectives of the two courts created by FISA.
The FISC’s decision was set against a backdrop of a significant number of
instances in which the Department of Justice had failed to maintain a “wall” between
foreign intelligence gathering and criminal investigations. All seven of the then
sitting members of the FISC concurred in the May 17, 2002, order of the court,
written by the then presiding judge of the court. The FISC, in its May 17th opinion
and order, treated the Attorney General’s proposed 2002 “Intelligence Sharing
Procedures for Foreign Intelligence and Foreign Counterintelligence Investigations
Conducted by the FBI” as minimization procedures, and approved them as modified.
The modifications made by the Court permitted the FBI, the Criminal Division, and
OIPR to consult with one another “to coordinate their efforts to investigate or protect
against foreign attack or other grave hostile acts, sabotage, international terrorism, or
clandestine intelligence activities by foreign powers or their agents.” In so doing, the
FISC permitted such cooperation and coordination to address, among other things,
the exchange of information already acquired, identification of categories of
information needed and being sought, prevention of either foreign intelligence
gathering or criminal law enforcement investigation or interest from obstructing or
hindering the other; compromise of either investigation, and long term objectives and
219 (...continued)
crimes,” it is not clear whether this section might be interpreted as applicable to sharing of
information gleaned from FISA surveillances, searches, pen registers, trap and trace devices,
or business record requests, particularly where criminal prosecution is a goal of the
investigation.
P.L. 108-458, after creating the new position of Director of National Intelligence in
Section 1101 of the Act, included conforming amendments, which replaced references to
the “Director of Central Intelligence” with “Director of National Intelligence” in a broad
range of provisions. However, P.L. 108-458 does not appear to have replaced “Director of
Central Intelligence”with “Director of National Intelligence” in 50 U.S.C. § 403-5d.

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overall strategy of both investigations to insure that overlapping intelligence and
criminal interests of the United States are both achieved.220 While permitting direct
consultation and coordination between components, the FISC required that OIPR be
invited to all consultations and, if OIPR was unable to attend, the modified
procedures required that OIPR be “forthwith” informed in writing of the substance
of the meeting so that the FISC could be notified promptly.221 In addition, under the
procedures as modified by the FISC, law enforcement officials were prohibited from
making recommendations to intelligence officials regarding the initiation, operation,
continuation or expansion of FISA searches or surveillances. Nor could law
enforcement officials direct or control the use of FISA procedures to enhance criminal
prosecution. The FBI and the Criminal Division were given the responsibility to
ensure that this did not occur, and were also required to make certain that advice
intended to preserve the criminal prosecution option did not inadvertently result in the
Criminal Division directing or controlling the investigation using FISA tools to
further law enforcement objectives.222 In addition, the FISC adopted a new Rule 11,
dealing with criminal investigations in FISA cases, to facilitate monitoring of
compliance with its May 17, 2002 order. This rule required all FISA applications to
include informative descriptions of ongoing criminal investigations of FISA targets,
as well as the substance of consultations between the FBI and criminal prosecutors
at the Department of Justice or a U.S. Attorney’s office.
In its November 18, 2002 opinion, the Court of Review took a starkly different
view of the Attorney General’s proposed procedures and firmly rejected the FISC
analysis and conclusions. The issue came before the Court of Review as an appeal
of two FISC orders, one granting an application to authorize electronic surveillance
of an agent of a foreign power subject to restrictions stemming from the FISC May
17th opinion and order and the other renewing the authorization for electronic
surveillance subject to the same conditions.
The Court of Review held that the FISC’s interpretation of the augmented 1995
procedures and the proposed 2002 procedures as minimization procedures under 50
U.S.C. § 1801(h) was in error. The Court of Review found that the FISC had
misconstrued 50 U.S.C. §§ 1801(h) and 1805 and may have overstepped its
constitutional authority by asserting authority to govern the internal organization and
investigative procedures of the Justice Department.
It found that FISA, as originally enacted, did not create a dichotomy between
foreign intelligence information gathering and law enforcement investigations, nor
did it require maintenance of a “wall” between such investigations. While FISA as
enacted in 1978 required that a national security official certify that “the purpose” of
the investigation was to gather foreign intelligence information, the court regarded
the definition of “foreign intelligence information” as including evidence of criminal
wrongdoing where a U.S. person is the target of the FISA investigation. In light of
the fact that the definition of “agent of a foreign power” applicable to U.S. persons
220 FISC op., 218 F. Supp. 2d at 626.
221 Id.
222 Id.

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involved criminal conduct, or, in the context of clandestine intelligence operations,
the possibility of criminal conduct, the court distinguished “foreign intelligence
crimes” from “ordinary crimes.” In foreign intelligence crimes, intelligence gathering
and criminal investigations may become intertwined.
The Court of Review reviewed past court decisions requiring that, in seeking a
FISA order authorizing electronic surveillance, the government must demonstrate that
the “primary purpose” of the surveillance was to gather foreign intelligence
information and not to further law enforcement purposes. Rejecting the “primary
purpose test” as applied by the FISC and the courts of appeals of several circuits, the
Court of Review did not find it to be compelled by the statutory language of FISA as
originally enacted or by the Fourth Amendment.
The Court of Review also held the FISC to have been in error in its refusal “to
consider the legal significance of the Patriot Act’s crucial amendments . . . .” In
particular, the court focused upon the change of the required certification by the
national security official from a certification that “the purpose” of the surveillance
was to obtain foreign intelligence information to a certification that “a significant
purpose” of the surveillance was to obtain foreign intelligence information in 50
U.S.C. § 1804(a)(7)(B); and the enactment of 50 U.S.C. § 1806(k), authorizing
consultation and coordination by federal officers engaged in electronic surveillance
to acquire foreign intelligence information with federal law enforcement officers.
Finding that the “significant purpose” amendment recognized the existence of
a dichotomy between intelligence gathering and law enforcement purposes, the Court
of Review concluded that this test was satisfied if the government had “a measurable
foreign intelligence purpose, other than just criminal prosecution of even foreign
intelligence crimes.”223 While the gathering of foreign intelligence information for
the sole objective of criminal prosecution would be precluded by the “significant
purpose” language, if “the government entertains a realistic option of dealing with the
agent [of a foreign power] other than through criminal prosecution,” the court found
the “significant purpose” test satisfied.224 Although the court was of the view that,
prior to passage of the USA PATRIOT Act, the FISC may well not have had authority
under 50 U.S.C. § 1805(a)(5) to inquire into anything other than the issue of “whether
the information sought was a type of foreign intelligence information, in light of the
significant purpose amendment of section 1804” the Court of Review concluded that
“it seems section 1805 must be interpreted as giving the FISA court the authority to
review the government’s purpose in seeking the information.”225 The court held that
the government’s purpose under 50 U.S.C. § 1804(a)(7)(B) was “to be judged by the
national security official’s articulation and not by a FISA court inquiry into the
origins of an investigation nor an examination of the personnel involved. . . . [I]f the
FISA court has reason to doubt that the government has any real non-prosecutorial
purpose in seeking foreign intelligence information it can demand further inquiry into
223 Id. at 735.
224 Id.
225 Id.

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the certifying officer’s purpose — or perhaps even the Attorney General’s or Deputy
Attorney General’s reasons for approval.”226
The Court of Review also considered whether FISA, as amended, passed
constitutional muster under the Fourth Amendment. It deemed the procedures and
government showings required under FISA to come close to the minimum
requirements for a warrant under the Fourth Amendment, if not meeting such
requirements. Assuming arguendo that a FISA order was not a warrant for Fourth
Amendment purposes, the Court of Review found FISA constitutional because the
surveillances authorized thereunder were reasonable.
226 Id. at 736.