Order Code RL34279
The Foreign Intelligence Surveillance Act:
A Brief Overview of Selected Issues
Updated December 14, 2007
Elizabeth B. Bazan
Legislative Attorney
American Law Division

The Foreign Intelligence Surveillance Act:
A Brief Overview of Selected Issues
Summary
The current legislative and oversight activity with respect to electronic
surveillance under Foreign Intelligence Surveillance Act (FISA) has drawn national
attention to several overarching issues. This report briefly outlines three such issues
and touches upon some of the perspectives reflected in the ongoing debate. These
issues include the inherent and often dynamic tension between national security and
civil liberties, particularly rights of privacy and free speech; the need identified by the
Director of National Intelligence (DNI), Admiral Mike McConnell, for the
Intelligence Community to be able to efficiently and effectively collect foreign
intelligence information from the communications of foreign persons located outside
the United States in a changing, fast paced, and technologically sophisticated
international environment, and the differing approaches suggested to meet this need;
and limitations of liability for those electronic communication service providers who
furnish aid to the federal government in its foreign intelligence collection. Two
constitutional provisions, in particular, are implicated in this debate — the Fourth
and First Amendments.
Congress currently has before it several bills that, if enacted, would amend
certain FISA provisions, among them H.R. 3733, which was passed by the House on
November 15, 2007; S. 2248 (as reported out of the Senate Select Committee on
Intelligence); and S. 2248 (as reported out of the Senate Judiciary Committee with
an amendment in the nature of a substitute). Two other bills regarding FISA were
introduced by Senator Reid on December 10, 2007, and have been placed on the
Senate’s legislative calendar, S. 2440 and S. 2441. S. 2402, introduced by Senator
Specter on December 3, 2007, was referred to the Senate Judiciary Committee. In
Committee markup on December 13, 2007, an amendment in the nature of a
substitute to S. 2402 was adopted by unanimous consent. Then, by a vote of 5-13,
the Committee rejected S. 2402, as amended. The proposal would have permitted
substitution of the government for electronic communication service providers in law
suits where certain criteria were met.
This report briefly examines these issues and sets them in context. For a side-
by-side comparison of H.R. 3773 and the two reported versions of S. 2248, see CRS
Report RL34277, The Foreign Intelligence Surveillance Act: Comparison of
House-Passed H.R. 3773, S. 2248 as Reported By the Senate Select Committee on
Intelligence, and S. 2248 as Reported Out of the Senate Judiciary Committee
, by
Elizabeth B. Bazan (December 6, 2007).

Contents
Tension Between National Security and Civil Liberties . . . . . . . . . . . . . . . . . . . . 3
Collection of Foreign Intelligence Information from Foreign Persons Located
Abroad . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Limitations on Liability for Telecommunications Providers Furnishing
Aid to the Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

The Foreign Intelligence Surveillance Act:
A Brief Overview of Selected Issues
The Foreign Intelligence Surveillance Act of 1978, P.L. 95-511, 92 Stat. 1783
(October 25, 1978), 50 U.S.C. §§ 1801 et seq. (hereinafter FISA), was enacted in
response both to the Committee to Study Government Operations with Respect to
Intelligence Activities (otherwise known as the Church Committee) revelations
regarding past abuses of electronic surveillance for national security purposes and to
the somewhat uncertain state of the law on the subject.1 While FISA now provides
1 The U.S. Supreme Court originally held that the Fourth Amendment only applied to
tangible things, Olmstead v. United States, 277 U.S. 438 (1928). but later held that
intangible things, such as conversations, were also protected. In its 1967 decision in Katz
v. United States, 389 U.S. 347, 353, 359 n. 23 (1967), the Court, overturning its previous
holding in Olmstead v. United States, held that the Fourth Amendment covered electronic
surveillance of oral communications without physical intrusion. The Katz Court stated,
however, that its holding did not extend to cases involving national security. In United
States v. United States District Court, 407 U.S. 297, 313-14 (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.” 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.
407 U.S. at 299. The Court held that, in the case of intelligence gathering involving
domestic security surveillance, prior judicial approval was required to satisfy the Fourth
Amendment. 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.” Id., at 308 The Court expressed no opinion as to
“the issues which may be involved with respect to activities of foreign powers or their
agents.” Id., at 321-22. 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. Id. at 323-24.
Court of appeals decisions following Keith met more squarely the issue of warrantless
(continued...)

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a statutory framework for gathering foreign intelligence information through the use
of electronic surveillance, physical searches, and pen registers or trap and trace
devices, and access to business records and other tangible things, the 1978 Act dealt
only with electronic surveillance. The provisions passed almost 30 years ago became
Title I of FISA. As originally enacted, the measure provided a statutory framework
for collection of foreign intelligence information through the use of electronic
surveillance of communications of foreign powers or agents of foreign powers, as
those terms were defined in the act. The act has been amended repeatedly in the
intervening years in an effort to address changing circumstances. Then, as now, the
Congress sought to strike a balance between national security interests and civil
liberties.
A number of FISA bills have received recent attention in the 110th Congress.
The House of Representatives passed H.R. 3773 on November , while S. 2248 was
reported out of the Senate Select Committee on Intelligence and an amendment in the
nature of a substitute to S. 2248 was reported out of the Senate Judiciary Committee.
Senator Reid introduced two additional FISA bills on December 10, 2007, S. 2440
and S. 2441, which were read twice the following day and placed on the Senate
Legislative Calendar as Numbers 529 and 530, respectively. S. 2402 was introduced
by Senator Specter on December 3, 2007, and referred to the Senate Judiciary
Committee. In Committee markup on December 13, 2007, an amendment in the
nature of a substitute to S. 2402 was adopted by unanimous consent. Then, by a vote
of 5-13, the Committee rejected S. 2402, as amended. The proposal would have
permitted substitution of the government for electronic communication service
providers in law suits where certain criteria were met.
The current legislative and oversight activity with respect to electronic
surveillance under FISA has drawn national attention to several overarching issues.
This report briefly outlines three such issues and touches upon some of the
1 (...continued)
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.” For more information on the
background of FISA, see CRS Report RL30465, The Foreign Intelligence Surveillance Act:
An Overview of the Statutory Framework and U.S. Foreign Intelligence Surveillance Court
and U.S. Foreign Intelligence Surveillance Court of Review Decisions
, by Elizabeth B.
Bazan (February 15, 2007).

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perspectives reflected in the ongoing debate. These issues include the inherent and
often dynamic tension between national security and civil liberties, particularly rights
of privacy and free speech; the need identified by the Director of National
Intelligence (DNI), Admiral Mike McConnell, for the Intelligence Community to be
able to efficiently and effectively collect foreign intelligence information from the
communications of foreign persons located outside the United States in a changing,
fast paced, and technologically sophisticated international environment,2 and the
differing approaches suggested to meet this need; and limitations of liability for those
electronic communication service providers who furnish aid to the federal
government in its foreign intelligence collection. This report briefly examine these
issues and sets them in context.
Tension Between National Security
and Civil Liberties
Two constitutional provisions, in particular, are implicated in this debate — the
Fourth and First Amendments. The Fourth Amendment to the U.S. Constitution
provides:
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 Warrant
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.
2 See Statement of the Director of National Intelligence, Subject: Modernization of the
Foreign Intelligence Surveillance Act (FISA) (August 2, 2007), stating in pertinent part:
First, the Intelligence Community should not be required to obtain court
orders to effectively collect foreign intelligence from foreign targets located
overseas. Simply due to technology changes since 1978, court approval should
not now be required for gathering intelligence from foreigners located overseas.
This was not deemed appropriate in 1978 and it is not appropriate today. . . .
The Intelligence Community should not be restricted to effective collection
of only certain categories of foreign intelligence when the targets are located
overseas. We must ensure that the Intelligence Community can be effective
against all who seek to do us harm.
The bill must not require court approval before urgently needed intelligence
collection can begin against a foreign target located overseas. The delays of a
court process that requires judicial determinations in advance to gather vital
intelligence from foreign targets overseas can in some cases prevent the rapid
gathering of intelligence necessary to provide warning of threats to the country.
This process would also require in practice that we continue to divert scarce
intelligence experts to compiling these court submissions. Similarly, critical
intelligence gathering on foreign targets should not be halted while court review
is pending.
. . . .
This statement may be found at [http://www.odni.gov/press_releases/200708002_
release.pdf].

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The First Amendment to the U.S. Constitution provides:
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.
As the Fourth Amendment protects the people’s privacy rights, so the First
Amendment reflects a recognition of the value of free expression of ideas and lawful
political dissent to the preservation of a free society.
In introducing S. 1566, the bill that became the Foreign Intelligence
Surveillance Act of 1978, P.L. 95-511, Senator Edward Kennedy addressed the
challenge of striking an appropriate balance between the legitimate government need
to safeguard the nation against the intelligence activities of foreign agents and the
concomitant need to protect civil liberties, stating:
The complexity of the problem must not be underestimated. Electronic
surveillance can be a useful tool for the Government’s gathering of certain kinds
of information; yet, if abused, it can also constitute a particularly indiscriminate
and penetrating invasion of the privacy of our citizens. My objective over the
past six years has been to reach some kind of fair balance that will protect the
security of the United States without infringing on our citizens’ human liberties
and rights.3
This sentiment was echoed in a hearing before the Senate Judiciary Committee
on S. 1566 when Attorney General Griffin Bell testified for the Carter Administration
in favor of the measure:
I believe this bill is remarkable not only in the way it has been developed,
but also in the fact that for the first time in our society the clandestine
intelligence activities of our government shall be subject to the regulation and
receive the positive authority of a public law for all to inspect. President Carter
stated it very well in announcing this bill when he said that “one of the most
difficult tasks in a free society like our own is the correlation between adequate
intelligence to guarantee our nation’s security on the one hand, and the
preservation of basic human rights on the other.” It is a very delicate balance to
strike, but one which is necessary in our society, and a balance which cannot be
achieved by sacrificing either our nation’s security or our civil liberties. . . .4
3 Report of the Senate Committee on the Judiciary to accompany S. 1566, S.Rept. 95-604,
Part I, 95th Cong., 1st Sess. 8 (1977); 1978 U.S.C.C.A.N. 3904, 3910. FISA was enacted in
the wake of revelations of abuses of warrantless surveillance in the name of national security
revealed in the 1973 investigation of the Watergate break-ins and later explored in greater
detail by Church Committee. Id. at 7, 1978 U.S.C.C.A.N. at 3908. See also, Foreign
Intelligence Surveillance Act of 1978, H.Rept. 95-1283, Part I, 95th Cong., 2d Sess. 14
(1978).
4 Hearing before the Subcommittee on Criminal Laws and Procedures of the Senate
Committee on the Judiciary, Foreign Intelligence Surveillance Act of 1977, 95th Cong., 1st
Sess. 23 (1977).

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In providing background for its report on H.R. 7308, the House FISA bill then
under consideration, the House Permanent Select Committee on Intelligence noted:
The history and law relating to electronic surveillance for “national security”
purposes have revolved around the competing demands of the President’s
constitutional powers to gather intelligence deemed necessary to the security of
the nation and the requirements of the fourth amendment. The U.S. Supreme
Court has never expressly decided the issue of whether the President has the
constitutional authority to authorize warrantless electronic surveillance for
foreign intelligence purposes. Whether or not the President has an “inherent
power” to engage in or authorize warrantless electronic surveillance and, if such
power exists, what limitations, if any, restrict the scope of that power, are issues
that have troubled constitutional scholars for decades.5
Electronic surveillance can provide vital information needed to identify those
who are acting or preparing to act against U.S. interests for the benefit of foreign
powers, including those engaged in espionage, sabotage, or terrorist acts or who
otherwise pose a threat to the nation or its citizens, and to uncover their plans or
activities. This information may not be readily uncovered by other investigative
means. Thus, surveillance can provide a valuable tool for protecting the security of
the nation and its citizens. However, this investigative technique, by its nature, can
intrude into the privacy of both the target of the surveillance and those with whom
the target communicates. It also has the potential of chilling political discussion and
lawful dissent.6
5 Report of the House Permanent Select Committee on Intelligence to accompany H.R.
7308, the Foreign Intelligence Surveillance Act of 1978, H.Rept. 95-1283, Part I, 95th Cong.,
2d Sess. 15 (1978).
6 See, S.Rept. 95-604, at 8, 1978 U.S.C.C.A.N. 3909-3910. The Senate Judiciary Committee
noted that “[i]n summarizing its conclusion that surveillance was “often conducted by illegal
or improper means,” the Church committee wrote:
Since the 1930’s, intelligence agencies have frequently wiretapped and
bugged American citizens without the benefit of judicial warrant. . . . [P]ast
subjects of these surveillances have included a United States Congressman,
Congressional staff member, journalists and newsmen, and numerous individuals
and groups who engaged in no criminal activity and who posed no genuine threat
to the national security, such as two White House domestic affairs advisers and
an anti-Vietnam War protest group. (vol 2, p. 12)
* * * *
The application of vague and elastic standards for wiretapping and bugging
has resulted in electronic surveillances which, by any objective measure, were
improper and seriously infringed the Fourth Amendment Rights of both the
targets and those with whom the targets communicated. The inherently intrusive
nature of electronic surveillance, moreover, has enabled the Government to
generate vast amounts of information — unrelated to any legitimate government
interest — about the personal and political lives of American citizens. The
collection of this type of information has, in turn, raised the danger of its use for
partisan political and other improper ends by senior administration officials. (vol.
3, p. 32)
(continued...)

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The framing of the current debate on this issue flows, in part, from questions
arising with respect to the Terrorist Surveillance Program (TSP), first revealed in
press accounts in December 2005.7 While little information regarding the details of
this NSA program is publicly available, the President has indicated that, “since
shortly after September 11, 2001, he had authorized the National Security Agency
(NSA) to intercept international communications into and out of the United States
of persons linked to al Queda or related terrorist organizations. The purpose of the
intercepts is to establish an early warning system to detect and prevent another
catastrophic terrorist attack on the United States.”8 Concerns surrounding the TSP
have led to continuing congressional oversight and a number of legislative proposals
focused upon providing the intelligence community with the tools it needs for foreign
6 (...continued)
The Senate Judiciary Committee observed further:
Also formidable — although incalculable — is the “chilling effect” which
warrantless electronic surveillance may have on the constitutional rights of those
who were not targets of the surveillance, but who perceived themselves, whether
reasonably or unreasonably, as potential targets. Our Bill of Rights is concerned
not only with direct infringements on constitutional rights, but also with
government activities which effectively inhibit the exercise of these rights. The
exercise of political freedom depends in large measure on citizens’ understanding
that they will be able to be publicly active and dissent from official policy, within
lawful limits, without having to sacrifice the expectation of privacy that they
rightfully hold. Arbitrary or uncontrolled use of warrantless electronic
surveillance can violate that understanding and impair that public confidence so
necessary to an uninhibited political life.
See also, Keith, 407 U.S. at 391-321, where Justice Powell 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.” . . . .
7 See, e.g., James Risen and Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts,
N.Y. TIMES, December 16, 2005, at 1, 22 (citing anonymous government officials to report
that the executive order, which allows some warrantless eavesdropping on persons inside
the United States, “is based on classified legal opinions that assert that the president has
broad powers to order such searches, derived in part from the September 2001
Congressional resolution authorizing him to wage war on Al Qaeda and other terrorist
groups”).
8 “Legal Authorities Supporting the Activities of the National Security Agency Described
by the President,” U.S. Department of Justice (January 19, 2006). This may be found at
[http://www.usdoj.gov/ag/readingroom/surveillance9.pdf].

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intelligence collection to protect the United States and its citizens, while also
protecting the civil liberties of those impacted by such collection.

The current level of complexity and sophistication of global communications
technology can provide both increased opportunities for lawful private
communications and public debate, and increased means for communications
between those engaged in criminal wrongdoing or plans or actions which pose a
threat to U.S. national security. While this presents challenges to intelligence
collection for foreign intelligence purposes, the government has moved to utilize
these new technologies for both law enforcement and intelligence purposes. The
balance between these important governmental needs and protections of
constitutionally protected privacy interests and First Amendment protected activities
is dynamic, and there can be differences of opinion as to where the appropriate
balance point between them may be found.
Collection of Foreign Intelligence Information
from Foreign Persons Located Abroad
A second, related issue in the current debate concerns the appropriate
circumstances or standards for collection of foreign intelligence information from
foreign persons abroad. This issue can best be understood when set in the context of
recent developments, to the extent that pertinent information is publicly available.
In July 2007, an unclassified summary of the National Intelligence Estimate
(NIE) on “The Terrorist Threat to the US Homeland” was released. The NIE
expressed the judgement, in part, that the U.S. Homeland will face a persistent and
evolving threat over the next three years, the main threat coming from Islamic
terrorist groups and cells, particularly al Qaeda.9
In a January 17, 2007, letter to Chairman Leahy and Ranking Member Specter
of the Senate Judiciary Committee, then Attorney General Gonzales advised them
that, on January 10, 2007, a Foreign Intelligence Surveillance Court judge “issued
orders authorizing the Government to target for collection international
communications into or out of the United States where there is probable cause to
believe that one of the communicants is a member or agent of al Qaeda or an
associated terrorist organization.” The Attorney General stated that, in light of these
orders, which “will allow the necessary speed and agility,” all surveillance previously
occurring under the Terrorist Surveillance Program (TSP) would now be conducted
subject to the approval of the FISC. He indicated further that, under these
circumstances, the President had determined not to reauthorize the TSP when the
then current authorization expired. The Attorney General also noted that the
Intelligence Committees had been briefed on the highly classified details of the FISC
orders and advised Chairman Leahy and Senator Specter that he had directed the
Acting Assistant Attorney General for the Office of Legal Counsel and the Assistant
9 National Intelligence Estimate on “The Terrorist Threat to the US Homeland,” at 6-7 (July
2007). This may be found at [http://www.odni.gov/press_releases/20070717_release.pdf].

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Attorney General for National Security to provide them a classified briefing on the
details of the orders. Because the contents of these orders remain classified, the
scope of or limitations with respect to any authority that may have been provided
remain unknown.
On April 13, 2007, the Administration announced that it had submitted draft
legislation to the Congress regarding modernization of FISA. This draft legislation
included a proposed new section 102A of FISA which would authorize the President,
acting through the Attorney General, to permit acquisition of foreign intelligence
information for up to one year concerning persons reasonably believed to be outside
the United States if the Attorney General certifies in writing under oath that he has
made four specific determinations.10
On August 2, 2007, the DNI released a statement on “Modernization of the
Foreign Intelligence Surveillance Act.” In his statement, Admiral McConnell
regarded such modernization as necessary to respond to technological changes and
to meet the Nation’s current intelligence collection needs. He viewed it as essential
for the Intelligence Community to provide warning of threats to the United States.
One of two critically needed changes perceived by the DNI was his view that a court
order should not be required for gathering foreign intelligence from foreign targets
located overseas. Admiral McConnell did, however, indicate that he would be
willing to agree to court review, after commencement of needed collection, of the
procedures by which foreign intelligence is gathered through classified methods
directed at foreigners outside the United States.
Some news accounts suggest that a FISC court ruling this Spring may have
limited the authority of the United States, in certain circumstances, to engage in
surveillance of foreign conversations taking place outside the United States. Admiral
McConnell stated in remarks included in the transcript of an interview published in
the El Paso Times on August 22, 2007, that on or about May of this year, when
another judge of the FISC considered an application for renewal or extension of the
surveillance approved under the January 10 orders, that judge interpreted the
requirements of FISA differently from the judge who had issued the January 10
10 These include: that “the acquisition does not constitute electronic surveillance; that the
acquisition involves obtaining foreign intelligence information from or with the assistance
of a communications service provider, custodian, or other person (including any officer,
employee, agent, or other specified person of such service provider, custodian, or other
person) who has access to communications, either as they are transmitted or while they are
stored, or equipment that is being or may be used to transmit or store such communications;”
that “a significant purpose of the acquisition is to obtain foreign intelligence information;”
and that “the minimization procedures to be used with respect to the acquisition activity
meet the definition of minimization procedures under section 101(h)” of FISA. The Fact
Sheet on the draft legislation may be found at [http://www.usdoj.gov/opa/
pr/2007/April/07_nsd_247.html]. The text of the draft bill may be found at
[http://www.lifeandliberty.gov/docs/text-of-dni-proposed.pdf]. For further information
about the proposed draft legislation regarding modernization of FISA, see the April 23,
2007, CRS Congressional Distribution Memorandum entitled, “Overview of ‘FISA
Modernization Provisions of the Proposed Fiscal Year 2008 Intelligence Authorization,’”
by Elizabeth B. Bazan.

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orders, and deemed a FISA warrant necessary for surveillance of wire
communications of a foreign person in a foreign country.11
On August 5, 2007, the Protect America Act of 2007 was enacted, P.L. 110-55,
which provided that “[n]othing in the definition of electronic surveillance under
section 101(f) [of FISA] shall be construed to encompass surveillance directed at a
person reasonably believed to be located outside of the United States.” It also created
a new procedure under section 105B(a) of FISA under which the Attorney General
and the DNI, for periods of up to one year, may authorize acquisition of foreign
intelligence information concerning persons reasonably believed to be outside the
United States, if the Attorney General and the DNI determine, based on the
information provided to them, that five criteria have been met.12 This authority is
similar, but not identical to, the proposed section 102A of FISA in the
Administration’s draft bill.
Views differ as to the scope of the need and the means by which this need may
be met. Can this concern be addressed by solutions directed solely at electronic
surveillance or acquisitions without a court order from the FISC of communications
between foreign persons in communication with other foreign persons all located
outside the United States, whether or not those communications are routed through
the United States at some point in their transmission? Or must the solution be crafted
in such a way as to permit such surveillance or acquisitions of the communications
of foreign persons located abroad, whether they may be in communication only with
other non-U.S. persons, or both non-U.S. persons and U.S. persons,13 located outside
the United States? What is required if some of the communications of the foreign
person targeted in the surveillance or acquisition are with U.S. persons or non-U.S.
persons located in the United States? May such foreign intelligence be collected
11 The transcript of the interview with the DNI may be found at
[http://www.elpasotimes.com/news/ci_6685679]. See also, “Greg Miller, Court Puts Limits
on Surveillance Abroad: The ruling raises concerns that U.S. anti-terrorism efforts might
be impaired at a time of heightened risk,” L.A. Times, August 2, 2007, quoting a Member
of Congress that “[t]here’s been a ruling, over the last four or five months, that prohibits the
ability of our intelligence services and our counterintelligence people from listening in to
two terrorists in other parts of the world where the communication could come through the
United States.”
12 For more information on the Protect America Act of 2007, see CRS Report RL34143, P.L.
110-55, the Protect America Act of 2007: Modifications to the Foreign Intelligence
Surveillance Act
, by Elizabeth B. Bazan (August 23, 2007).
13 “United States person” is defined in section 101(I) of FISA 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.

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from U.S. persons abroad without a Foreign Intelligence Surveillance Court14 order
pursuant to a certification by the Attorney General or the Attorney General and the
DNI jointly or whether a court order is required prudentially or constitutionally under
the Fourth Amendment.15
Generally, the full extent of Fourth Amendment protections attach to the privacy
interests of U.S. persons within the United States. Fourth Amendment protections
also attach to U.S. citizens abroad.16 However, the operation of its protections
outside the United States may differ from that in the United States due to the fact that
a citizen abroad may not have the same expectation of privacy. In addition, the
Warrant Clause of the Fourth Amendment may not apply outside the United States
where U.S. magistrates have no jurisdiction.17 A determination whether interception
of a communication abroad is lawful turns upon the law of the country where the
interception occurs, so, depending upon location, the rights available may differ
significantly.18 In addition, the availability of Fourth Amendment protections are
affected by whom the search was executed, and the extent of any U.S. role, if any.19
If the U.S. plays no role, then the Fourth Amendment does not attach, and the
exclusionary rule does not apply to evidence obtained by or derived from such a
14 As a general matter, the proposals contemplate that any such court order would be issued
by the Foreign Intelligence Surveillance Court, created under section 103(a) of FISA, 50
U.S.C. § 1803(a).
15 For a more in depth discussion of the application of the Fourth Amendment to U.S.
citizens abroad, see CRS Congressional Distribution Memorandum entitled “U.S. Citizens’
Fourth Amendment Rights Abroad and the Interception of Electronic Communications,” by
Jennifer K. Elsea (November 13, 2007).
16 United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), suggests that the Fourth
Amendment may have some applicability to aliens, such as permanent resident aliens, who
have accepted societal obligations and made a significant voluntary commitment to the
United States.
17 United States v. Verdugo-Urquidez, 494 U.S. 259, 278 (Kennedy, J., concurring)(“The
absence of local judges or magistrates available to issue warrants, the differing and perhaps
unascertainable conceptions of reasonableness and privacy that prevail abroad, and the need
to cooperate with foreign officials all indicate that the Fourth Amendment’s warrant
requirement should not apply in Mexico as it does in this country”); id. at 279 (Stevens, J.,
concurring in the judgment)(“I do agree, however, with the Government’s submission that
the search conducted by the United States agents with the approval and cooperation of the
Mexican authorities was not ‘unreasonable’ as that term is used in the first Clause of the
Amendment. I do not believe the Warrant Clause has any application to searches of
noncitizens’ homes in foreign jurisdictions because American magistrates have no power
to authorize such searches”).
18 Stowe v. Devoy, 588 F.2d 336, 342 (2d Cir. 1978); United States v. Cotroni, 527 F.2d
708, 711 (2d Cir. 1975).
19 Stonehill v. United States, 405 F.2d 738, 743 (9th Cir. 1969)(“Neither the Fourth
Amendment to the United States Constitution nor the exclusionary rule of evidence,
designed to deter federal officers from violating the Fourth Amendment, is applicable to the
acts of foreign officials”).

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search unless the foreign conduct “shocks the conscience.”20 On the other hand, if
warrantless electronic surveillance targeted at a U.S. citizen’s communications is
conducted abroad for the purpose of gathering foreign intelligence by U.S. officials,
the U.S. district court in United States v. Bin Laden, 126 F. Supp. 2d 264, 277
(S.D.N.Y. 2000), has held that it will be deemed reasonable if it is authorized by the
President, or the Attorney General pursuant to the President’s delegation, and the
surveillance was conducted “primarily for foreign intelligence purposes and . . .
targets foreign powers or their agents.”21
In addition to considering the scope of constitutional privacy protections
available to U.S. citizens or U.S. persons abroad, the 110th Congress, in FISA
legislation before it, is also considering what it deems the appropriate level of privacy
protection to be afforded such persons while outside the United States. In addition
to the Protect America Act of 2007, P.L. 110-55 (August 5, 2007), noted above,
differing views are reflected in H.R. 3773 as passed by the House of Representatives,
S. 2248 as reported out of the Senate Select Committee on Intelligence, and S. 2248
as reported out of the Senate Judiciary Committee with an amendment in the nature
of a substitute.22
H.R. 3773 provides that no court order is needed for electronic surveillance
directed at acquisition of the contents of communications between persons not known
to be U.S. persons who are reasonably believed to be located outside the United
States, without regard to whether the communication is transmitted through the
United States or the surveillance device is located in the United States. If the
communications of a U.S. person are inadvertently intercepted, stringent constraints
upon retention, disclosure, dissemination, or use would apply. However, the bill
provides for a FISC order for acquisitions for up to one year of communications of
non-U.S. persons reasonably believed to be outside the U.S. to collect most types of
foreign intelligence information by targeting those persons, where those persons may
be communicating with persons inside the United States. It also establishes
requirements for such acquisitions. S. 2248 as reported out of the Senate Select
Committee on Intelligence would permit the Attorney General and the DNI to jointly
authorize, for up to one year, targeting of persons reasonably believed to be outside
the U.S. to acquire foreign intelligence information if certain statutory criteria are
met. The Senate Judiciary Committee’s amendment in the nature of a substitute also
20 United States v. Callaway, 446 F.2d 753, 755 (3d Cir. 1971); United States v. Morrow,
537 F.2d 120, 139 (5th Cir. 1976); Stowe v. Devoy, 588 F.2d 336, 341 (2d Cir. 1978);
United States v. Rose, 570 F.2d 1358, 1362 (9th Cir. 1978); United States v. Hensel, 699
F.2d 18, 25 (1st Cir. 1983); United States v. Delaplane, 778 F.2d 570, 573-74 (10th Cir.
1985); United States v. Rosenthal, 793 F.2d 1214, 1231-232 (11th Cir. 1986).
21 See CRS Congressional Distribution Memorandum entitled “U.S. Citizens’ Fourth
Amendment Rights Abroad and the Interception of Electronic Communications,” by Jennifer
K. Elsea (November 13, 2007).
22 See, also, H.R. 3782, H.R. 3321. For a side-by-side comparison of H.R. 3773 and the two
reported versions of S. 2248, see CRS Report RL34277, The Foreign Intelligence
Surveillance Act: Comparison of House-Passed H.R. 3773, S. 2248 as Reported By the
Senate Select Committee on Intelligence, and S. 2248 as Reported Out of the Senate
Judiciary Committee
, by Elizabeth B. Bazan (December 6, 2007).

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provides for the Attorney General and the DNI to jointly authorize targeting of
persons reasonably believed to be outside the U.S. to acquire foreign intelligence
information, but sets somewhat different criteria that must be satisfied.23
Limitations on Liability for Telecommunications
Providers Furnishing Aid to the Government
The second of the two critical needs identified by the DNI in his August 2nd
statement was a need for liability protection for those who furnish aid to the
Government in carrying out its foreign intelligence collection efforts. He sought both
retrospective relief from liability for those who are alleged to have aided the
Government from September 11, 2001 to the present in connection with electronic
surveillance or collection of other communications related information, and
prospective liability protection for those telecommunications providers who furnish
aid to the government in the future whether pursuant to a court order or a certification
by the Attorney General or the Attorney General and the DNI that the acquisition or
electronic surveillance involved is lawful and that all statutory requirements have
been met.
Under current law, there are a number of statutory sections which provide some
limitation on telecommunication providers who furnish aid to the government in
connection with electronic surveillance or a physical search,24 or the installation of
a pen register or trap and trace device25 pursuant to a court order under FISA. Section
105B(1) of FISA as added by the Protect America Act, P.L. 110-55, bars causes of
action in any court against any person for providing any information, facilities, or
assistance in accordance with a directive under that section. In addition, 18 U.S.C.
§ 2511(2)(a) bars suit in any court against any provider of wire or electronic
communication service, its officers, employees, or agents, landlord, custodian, or
other specified person for providing information, facilities, or assistance in
accordance with the terms of a court order, statutory authorization, or a certification
in writing by the Attorney General or a person specified under 18 U.S.C. § 2518(7)
that no warrant or court order is required by law, that all statutory requirements have
been met, and that the specified assistance is required.26
Prospective relief from liability for those furnishing aid to the government
pursuant to a court order or certification or a directive pursuant to statute requiring
compliance with government demands for assistance is contemplated in a number of
pending bills, including H.R. 3773, S. 2248 as reported out of the Senate Select
Committee on Intelligence, and the Senate Judiciary Committee’s amendment in the
23 See CRS Report RL34277, supra, beginning at 3.
24 50 U.S.C. § 1805(I).
25 50 U.S.C. § 1842(f).
26 See also, defenses against criminal liability in specified circumstances under 50 U.S.C.
§ 1809(b) (electronic surveillance) and 1827(b) (physical searches). But see, civil liability
provisions under 50 U.S.C. §§ 1810 and 1828.

CRS-13
nature of a substitute to S. 2248.27 Like P.L. 110-55, both versions of S. 2248
provide a means by which the person receiving such a directive may challenge its
legality.28 P.L. 110-55, H.R. 3773, and both versions of S. 2248 authorize the FISC
to compel compliance through the contempt power.29
Retroactive immunity presents more difficult issues. There are currently
pending a substantial number of law suits against the telecommunications providers
who are alleged to have furnished aid to the government in connection with its
warrantless surveillance programs since September 11, 2001, and other programs.30
Approximately 40 of these suits are currently pending in the Northern District of
California under an order of the Judicial Panel on Multidistrict Litigation. On August
9, 2006, pursuant to 28 U.S.C. § 1407, the Judicial Panel on Multidistrict Litigation
transferred 17 civil actions that were pending throughout the country to the Northern
District of California, and assigned them to Judge Vaughn Walker for coordinated
or consolidated pretrial proceedings, In Re: National Security Agency
Telecommunications Records Litigation, MDL-1791. Another 26 cases were treated
as potential tag-along actions under the multidistrict litigation rules.(4) The panel of
five federal trial and appellate court judges found that all these class actions share
“factual and legal questions regarding alleged Government surveillance of
telecommunications activity and the participation in (or cooperation with) that
surveillance by individual telecommunications companies,” and thus centralization
of the cases “is necessary in order to eliminate duplicative discovery, prevent
inconsistent pretrial rulings (particularly with respect to matters involving national
security), and conserve the resources of the parties, their counsel and the judiciary.”31
27 See CRS Report RL34277, supra, at 19 for H.R. 3773; 17, 19, 49-54 (dealing with
retroactive immunity), and 56 for S. 2248 as reported out of Senate Select Committee on
Intelligence; and 17 and 19 for S. 2248 as reported out of Senate Judiciary Committee with
an amendment in the nature of a substitute.
28 See CRS Report RL34277, supra, at 15-17 for treatment of this issue by the two versions
of S. 2248.
29 See CRS Report RL34277, supra, at 19.
30 Cf., CRS Report RL33424, Government Access to Phone Calling Activity and Related
Records: Legal Authorities
, by Elizabeth B. Bazan, Gina Marie Stevens, Brian T. Yeh
(August 20, 2007). Cf., American Civil Liberties Union v. National Security Agency, 438
F. Supp. 2d 754 (E.D. Mich. 2007), vacated and remanded on other grounds, 493 F.3d 644
(6th Cir. 2007). A petition for certiorari has been filed in the case on October 3, 2007. The
district court, in pertinent part, held the plaintiffs’ “datamining” claim barred by application
of the state secrets privilege, 438 F. Supp. 2d at 759, 763, 782. This case was brought
against government agencies and officers rather than against the telecommunications
providers who may have assisted the government in its efforts.
31 Transfer Order, MDL Docket No. 1791, In Re: National Security Agency
Telecommunications Records Litigation. Other actions have been initiated against
telecommunications providers by a public utility commission to seek information from or
impose sanctions upon those providers. See, e.g., State of Maine Public Utilities
Commission, Request for Commission Investigation into Whether Verizon is Cooperating
in Maine with the National Security Agency’s Warrantless Surveillance Program, Docket
No.2006-274.

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Neither H.R. 3773, nor the Senate Judiciary amendment in the nature of a substitute
to S. 2248 address retrospective immunity. The Senate Select Committee on
Intelligence’s version of S. 2248, in title II, provides for retroactive immunity if
certain criteria are met. S. 2042 takes a different approach. It would provide for
substitution of the Government as the defending party for the telecommunications
providers if statutory requirements were satisfied.
Arguments may be made on both sides with respect to whether retroactive
immunity should be granted telecommunications providers who are alleged to have
assisted the government in such programs. For example, the cooperation of such
providers is critical to the government’s capacity to pursue electronic surveillance to
gather foreign intelligence information, and is also essential for collection of
communications records for pattern analysis. If the telecommunication providers
who responded to the government’s requests or demands for assistance did so in
good faith reliance upon assertions by the government that the demand was lawful
and that a court order was not required, it may be argued that the providers should be
immunized from ill effects flowing from such good faith reliance. Some have argued
that the unique factual context militates in favor of such relief from liability, to the
extent those who responded to the government’s requests for assistance in the wake
of 9/11 did so in response to government assertions that their cooperation was
necessary to protect against further attacks.
In many of the suits filed, the government has asserted states secrets privilege
with respect to the programs involved and the role of any of the telecommunications
carriers with respect thereto. This is a common law evidentiary privilege, which may
only be asserted by the government, that protects information from discovery when
its disclosure would be inimical to the national security.32 The privilege can come
into play in three ways. If the very subject matter of the case is a state secret, an
assertion of the privilege can cause the case to be immediately dismissed and the
action barred. If, however, this prong of the state secrets privilege does not apply, the
privilege may operate to bar admission into evidence of information which will
damage the security of the United States. The plaintiff then goes forward on the basis
of evidence not covered. If the plaintiff cannot prove a prima facie case with
nonprivileged evidence, then the case may be dismissed.33 On the other hand, if the
privilege deprives a defendant of information that would otherwise give the
defendant a valid defense to the claim, then the court may grant summary judgment
to the defendant.34 In the current context, to the extent that a defendant
telecommunications providers may have a valid claim of immunity under 18 U.S.C.
§ 2511(2)(a), but for the application of the state secrets privilege to the identities of
32 In re United States, 8782 F.2d 472, 474-75 (D.C. Cir. 1989).
33 This is the basis upon which the Sixth Circuit dismissed ACLU v. NSA, supra, on appeal,
finding that the plaintiffs would be unable to demonstrate standing from nonprivileged
evidence.
34 See, Hepting v. AT&T, 439 F. Supp. 2d 974, 984 (N.D. Cal. 2006), citing Kasza v.
Browner, 133 F.3d 1159, 1166 (9th Cir. 1998). The Hepting court held that the case was not
barred on the basis that its very nature was a state secret, but that there was insufficient
information to determine whether the other two prongs applied. The other consolidated
cases have been stayed pending the interlocutory appeal of the Hepting decision.

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any providers who may have furnished aid to the government, an argument may be
made that the telecommunications providers so impacted should be afforded
immunity from suit.

On the other hand, such suits may be the only means by which those who may
have been adversely impacted by such government activities may obtain any remedy
for any injuries incurred. These injuries may have impacted First and Fourth
Amendment protected interests, and there may be no other means of vindicating
those rights. In addition, the telecommunications providers provide the front line of
defense of those rights against governmental abuse if the government demand or
request is unlawful. In some instances, it may be argued that a telecommunications
provider has a statutory obligation to protect customer records from unlawful
access.35 Such arguments militate against affording relief from liability to any
providers who may have permitted unlawful access.
In addition to these arguments, some have argued that, because the
Administration has not shared information repeatedly sought by some committees of
jurisdiction with respect to the role of the telecommunications providers in the TSP
or other pertinent intelligence activities, the Congress does not have adequate
information to determine whether relief for the telecommunications carriers is
warranted.
35 See, e.g., 47 U.S.C. § 222 (protection of customer proprietary network information.)