Foreign Intelligence Surveillance Act: before and after the USA Patriot Act. (Legal Digest).

The terrorist attacks of September 11,2001, left an indelible mark upon America and an overshadowing feeling of vulnerability. They also created a determination to respond to the new national security threats they represented. Congress reacted to these threats by passing laws providing new tools to fight terrorism. Perhaps, the most controversial recent act of Congress is the United and Strengthening of America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (1) (USA PATRIOT Act) and its impact upon the use of electronic surveillance and physical searches authorized under the Foreign Intelligence Surveillance Act of 1978 (FISA) (2) to combat foreign threats.

Some Americans fear the actions taken by Congress may infringe upon basic American liberties. Benjamin Franklin warned that "those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety." (3) The government must use its new tools in a way that preserves the rights and freedoms guaranteed by America's democracy, but, at the same time, ensure that the fight against terrorism is vigorous and effective. No American should be forced to seek safety over liberty. This article briefly examines FISA and the impact of the USA PATRIOT Act upon it.

FISA

Electronic monitoring (including both wiretaps and microphone installations) and physical searches are excellent, and sometimes essential, sources of information for both foreign intelligence and criminal activities. In 1968, Congress passed the Omnibus Crime Control and Safe Streets Act. Title HI of that act (4) contains provisions concerning the authorization and use of electronic monitoring by the government to gather information regarding criminal activities. Under Title III, the government has specific authorization procedures and rules to follow when it monitors people and places to collect evidence of violations of criminal laws. But, Title Ill did not answer the question of whether or not the government is required to obtain court authorization for electronic monitoring conducted, not for criminal investigations but for the collection of information regarding threats to national security.

The U.S. Supreme Court faced this issue in the case of United States v. United States District Court. (5) In this case, a group of Vietnam War protesters tried to blow up the local CIA recruiting office in Ann Arbor, Michigan, and a number of other government buildings. Evidence obtained during a domestic national security wire interception, undertaken without a formal court order, was used in the subsequent criminal trial. The use of this evidence was contested. The issue was whether or not the president had the authority, through the attorney general, to authorize electronic surveillance for national security matters without prior judicial review. The Court held that the government does not have unlimited power to conduct national security wiretaps for domestic security matters, and that prior judicial authorization is needed before using wiretaps for national security purposes. However, the Court recognized that such wiretaps involve different policy and practical considerations from ordinary criminal wir etaps. It suggested that Congress consider exploring the issue and decide if the authorization for and rules governing the use of national security wiretaps should be the same as those governing criminal wiretaps. The Court made it clear that it was not deciding the issue of the government's authority to con duct wiretaps in cases of foreign threats to the national security.

To establish the necessary authority and procedures for the government to conduct wiretaps in response to foreign threats, Congress passed FISA. FISA established a requirement of judicial approval before the government engages in at electronic surveillance (as well as physical searches) for foreign intelligence purposes. The act established the FISA Court, consisting of U.S. District Court judges designated by the chief justice of the U.S. Supreme Court. The court's purpose is to review government applications for national security electronic monitoring and searches and authorize their use with appropriate limitations. If the FISA Court denies an application for an order authorizing a national security wiretap or search, the matter is referred under seal to the FISA Court of Review, comprised of three federal judges selected by the chief justice of the U.S. Supreme Court. The court of review determines whether the application was properly denied. (6) Its decision can be appealed directly to the U.S. Supreme Court.

FISA Contrasted with Title III

In essence, the purpose of a FISA order is to gather foreign intelligence information, (7) while the purpose of a Title III wiretap order is to gather evidence for criminal prosecution. The FISA application need only state facts supporting probable cause to believe that the target of the intercept (or search) is a foreign power, or an agent of a foreign power, and that the facilities to be monitored or searched are being used, or are about to be used, by a foreign power, or an agent of a foreign power, and to certify that a significant purpose of the surveillance is to obtain foreign intelligence information. (8) To show that a person is an agent of a foreign power, the government need only relate facts demonstrating that the subject is an officer or employee of a foreign power or acts on the foreign power's behalf; or knowingly engages in clandestine intelligence-gathering activities that may involve a violation of U.S. criminal statutes; or knowingly engages in sabotage, international terrorism, or in the preparation of these activities on behalf of a foreign power. (9)

In contrast, a criminal Title III wiretap must be supported by probable cause to believe that a specific individual, using an identified phone or location, is committing a particular crime. (10) It requires that the government show that a predicate offense is, has, or will be committed by the subject of the surveillance" and that particular communications concerning the predicate offense will be obtained through the wiretap (12) at a specified location or through a specified device used by the target. (13)

FISA Information for Criminal Prosecutions

It is important to note that both FISA and Title m require a showing of probable cause to authorize electronic monitoring (and physical searches in the case of FISA). However, because of the differing objectives of the two acts, the degree of specificity required differs markedly. Arguably, because of the different probable cause showing required by FISA, it is easier for the government to obtain a EISA order than it is to obtain a Title III order. Because of this, the courts became concerned that the government would obtain FISA electronic surveillance orders in what were essentially criminal investigations to avoid the stricter requirements of Title III.

This concern surfaced in an espionage case that predates FISA. In United States v. Truong Dinh Hung, (14) the government used a warrant-less wiretap to overhear and record telephone conversations of the defendant and to bug his apartment. The wiretapping and bugging were authorized by the attorney general under the "foreign intelligence" exception to the Fourth Amendment. The defendant moved to suppress the evidence collected by means of the wiretap and bug as violations of the Fourth Amendment. The U.S. Court of Appeals for the Fourth Circuit admitted the evidence collected during the early days of the collection but held that evidence obtained after the primary purpose of the investigation had shifted from securing intelligence information to accumulating evidence of a crime and must be suppressed because of the failure to comply with the requirements of Title III. This ruling is the origin of the "primary purpose test that was to create problems in later cases.

Subsequent cases decided after the passage of FISA distinguished Truong on the grounds that the surveillance authorization in that case was not obtained pursuant to a FISA warrant. (15) These courts noted that FISA contains a statutory mechanism for the dissemination of criminal information obtained during an intelligence intercept and have held that when such evidence is discovered "incidentally" during an authorized FISA intercept it may be admitted in subsequent criminal prosecutions. (16) This would include situations where "the government can anticipate that the fruits of such surveillance may later be used, as allowed by [the statute], as evidence in a criminal trial." (17) This line of reasoning became known as the "primary purpose" test and was adopted by several circuits. (18) In other words, when the primary object of the electronic monitoring (or search) was to collect foreign intelligence information, FISA was the appropriate mechanism to seek authorization from the courts. When the primary purpos e was to seek criminal prosecution, Title III was the appropriate mechanism. Failure to strictly observe this distinction resulted in a possible suppression of the evidence.

The "primary purpose" test led the FISA Court and the U.S. Department of Justice (DOJ) to adopt a policy of building a "wall" between intelligence investigators and criminal investigators for fear of tainting FISA court ordered surveillances. Intelligence investigators were not to discuss ongoing foreign intelligence or foreign counterintelligence investigations with criminal investigators. In this way, FISA orders could not be used by criminal investigators to avoid seeking Title III orders. This practice led to a critical lack of coordination in investigations, such as international terrorism cases, which have both intelligence and criminal aspects.

FISA AS AMENDED BY THE USA PATRIOT ACT

Following the September 11, 2001, terrorist attacks, Congress reassessed intelligence-gathering procedures and passed the USA PATRIOT Act. The most significant changes involve the purposes for which FISA-authorized electronic monitoring and searches may be used and the exchange of information between criminal and foreign intelligence investigators.

Previously, FISA-authorized electronic monitoring and searches only could be used if high-level executive officials certified that "the purpose" was to obtain foreign intelligence information. As noted, that language came to be interpreted as the "primary purpose by the courts and DOJ. The USA PATROIT Act now requires that foreign intelligence information gathering be a "significant purpose." (19) The act amends FISA so that intelligence officials may coordinate efforts with law enforcement officials to investigate or protect against attacks, terrorism, sabotage, or clandestine intelligence activities without undermining the required certification of the "significant purpose" of FISA orders. The result is that Congress rejected the idea of having a "wall" between foreign intelligence and law enforcement officials when the object of the investigation is to detect, prevent, or prosecute foreign intelligence crimes.

On March 6, 2002, Attorney General John D. Ashcroft implemented the USA PATRIOT Act by establishing a new DOJ policy regarding information-sharing procedures. The new procedures permitted the complete exchange of information and advice between intelligence officers and law enforcement officers regarding FISA surveillances and searches.

On May 17, 2002, the FISA Court rejected the attorney general's new policy. (20) The FISA Court ruled that law enforcement officials cannot a) direct or control an investigation using FISA searches or surveillances for law enforcement objectives, b) direct or control the use of FISA procedures to enhance a criminal prosecution, c) make recommendations to intelligence officials concerning the initiation, operation, continuation or expansion of FISA searches or surveillances, or d) that representatives of DOJ's Office of Intelligence Policy and Review (OIPR) be invited to ("chaperone" in the view of the DOJ) all meetings between FBI and DOJ's Criminal Division to consult regarding efforts to investigate or protect against foreign attack, sabotage, or international terrorism to ensure that foreign intelligence gathering remains the primary purpose of any FISA-authorized technique. The FISA Court's rejection of the new guidelines led to the first-ever appeal to the FISA Court of Review.

In its decision, the FISA Court of Review decided that FISA does not preclude or limit the government's use of foreign intelligence information, including evidence of crimes, in certain types of criminal prosecutions. (21) The court of review determined that the restrictions imposed by the FISA Court on the government are not required by FISA, as amended by the USA PATRIOT Act or by the Constitution and that the USA PATROIT Act amendments of the FISA statute do not violate the Fourth Amendment of the Constitution.

The court of review made several important points. First, there must be a significant foreign intelligence information-gathering purpose for every FISA application for electronic monitoring or search, such as recruiting a foreign spy as a double agent, identification of foreign intelligence taskings, or the discovery of foreign spy tradecraft. (22)

Second, the court determined that FISA could be used to obtain evidence primarily for a criminal prosecution if the prosecution is an offense related to a foreign intelligence threat (a foreign intelligence crime) and a significant foreign intelligence-gathering purpose also is present. (23) The court defined foreign intelligence crimes as those listed in the FISA statute, including espionage, international terrorism, unlawful clandestine intelligence activities, sabotage, identity fraud offenses committed for or on behalf of a foreign power, and aiding or abetting or conspiring to commit these offenses. (24) Additionally, any ordinary crime intertwined with a foreign intelligence activity is included, such as bank robbery to finance terrorist actions or even credit card fraud to hide the identity of a spy. (25)

Finally, the court recognized that the USA PATRIOT Act lawfully breached the "wall" between criminal law enforcement and intelligence or counterintelligence gathering. Congress' intent in this matter is demonstrated amply by its addition of a new section to FISA by the USA PATRIOT Act. The new FISA Section 1806(k) reads:

1) Federal officers who conduct electronic surveillance to acquire foreign intelligence information under this title may consult with federal law enforcement officers 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 [1804](a)(7)(B) of this title or the entry of an order under Section [1805] of this title. (26)

This decision by the FISA Court of Review vindicates Congress' and the attorney general's view of FISA. It is permissible for intelligence and law enforcement officials to coordinate their efforts using all available resources, including FISA surveillances and searches, to detect, frustrate, and convict spies and terrorists.

It is important to note that additional safeguards are built into FISA if the target of the monitoring or search is a U.S. citizen or an alien admitted for permanent residence. The burden placed upon the government to obtain a FISA order is higher if the target is a U.S. person. (27) The act clearly states that the simple exercise of First Amendment rights by U.S. persons cannot be the basis for considering that person to be an agent of a foreign power. (28) The act also clearly establishes how and when information regarding a U.S. person may be used. (29)

USA PATRIOT Act and Information Sharing 

An extremely important aspect of the USA PATRIOT Act is that it permits greater sharing of intelligence information between law enforcement and national security investigators, regardless of the source of the intelligence information. Section 203 of the USA PATRIOT Act amends Rule 6 of the Federal Rules of Criminal Procedure to permit the disclosure of grand jury information containing foreign intelligence information to "any federal law enforcement, intelligence, protective, immigration, national defense, or national security official in order to assist the official receiving that information in the performance of his official duties." (30) The reporting requirement differs in that the name of the individual receiving the information is not given to the court, only the department or agency receiving the information. This section also amends Title III (the federal wiretap statute) to permit the same type of disclosure of intelligence information gathered during a court authorized criminal wiretap. (31)

Section 905 of the act (32) underscores the importance that Congress assigns to information sharing. That section requires the attorney general, or any head of a federal department or agency with law enforcement responsibility, to promptly disclose to the director of the CIA any foreign intelligence information gathered as a result of a criminal investigation.

Other Related Amendments

The USA PATRIOT Act amended many federal statutes in significant ways that are important to criminal and intelligence investigators. It is impossible to discuss all of these amendments in this limited space. However, some of these amendments should be mentioned.

A very significant change is that the USA PATRIOT Act makes terrorism a predicate offense allowing for a wiretap under Title III. (33) Investigators now have a choice, depending on the nature of the investigation, to apply for a FISA order or a Title III wiretap order.

In addition, the act also allows for a roving wiretap under FISA. (34) Roving wiretaps allow law enforcement to respond to time-sensitive criminal or terrorist activity by continuing court sanctioned electronic surveillance, even if the target of the surveillance rapidly switches cellular telephones, Internet accounts, or meeting venues.

USA PATRIOT Act and Pen Registers and Traps and Traces

FISA contains specific provisions regarding the use of pen registers and traps and traces in foreign intelligence investigations. (35) Section 214 of the USA PATRIOT Act changes the standard for issuing pen registers and trap and trace orders. FISA pen registers and traps and traces now can be obtained when the government certifies that the information likely to be obtained is foreign intelligence information not concerning a U.S. person or is relevant to ongoing investigations to protect against terrorism or clandestine intelligence activities. (36) Prior to the USA PATRIOT Act, pen register and trap and trace orders required showing that there was relevance to an investigation and that there was reason to believe that the targeted line was being used by an agent of a foreign power or someone in communication with such an agent under certain circumstances. The second requirement no longer exists.

The USA PATRIOT Act also amended Title III, FISA, and the federal statute related to pen registers to explicitly authorize the use of pen registers and traps and traces on communication networks other than just telephones. (37) Computer networks and cellular telephones are now specifically subject to this technique.

Criminal pen register and trap and trace orders are no longer limited to the geographic area within the jurisdiction of the issuing court. (38) All service providers necessary to the execution of the order, regardless of their location, are covered by such orders.

USA PATRIOT Act and Physical Searches

Historically, some federal courts permitted the government to search premises, but delay for a reasonable time the required notice that the government had entered the premises. (39) The USA PATRIOT Act amended federal law to statutorily recognize the practice. (40) Delayed notice, or sneak-and-peek warrants, are now permissible where the court finds reasonable cause to believe that immediate notification of the execution of the warrant would have an adverse result. (41) The warrant must prohibit the seizure of tangible property unless the court finds it necessary. The warrant also must provide for giving notice of the search within a reasonable time, but extensions of time can be granted.

The act expands the reach of search warrants in domestic and international terrorism cases. (42) Ordinarily, criminal search warrants must be issued in the districts where the searches will occur. (43) Under the new rule, however, a magistrate judge in a district "in which activities related to the terrorism may have occurred" (44) may issue a warrant in that terrorism investigation that can be executed within or outside that district.

It is important to note that there is a 4-year sunset provision for some parts of the act. (45) The sharing of grand jury information portion of the act does not expire as of December 31, 2005. However, the "significant purpose" certification for FISA intercepts, the provosions regarding roving FISA surveillance, and the pen register and trap and trace do.

CONCLUSION

From a national security and law enforcement perspective, the United States has made considerable progress through recent court cases and congressional action toward ensuring that threats to national security are effectively investigated and countered. At the same time, care must be taken to ensure that the new tools provided by Congress in the USA PATRIOT Act are employed within the constraints of the Constitution. The Supreme Court has said "the police must obey the law while enforcing the law, that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves." (46)

FISA's different standards for intelligence surveillance have been viewed suspiciously by some who fear the loss of individual liberty. Care must be taken to avoid any abuse of this tool by law enforcement. The Court has warned that "the greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding." (47) Government should not overstep its bounds.

Law enforcement must act aggressively to investigate and prevent attacks from those who wish this country harm. At the same time, there must be oversight, both internal and external, to ensure that law enforcement is not overzealous. FISA and the USA PATRIOT Act provide such oversight. While the USA PATRIOT Act removed many of the obstacles that hindered terrorist and intelligence investigations in the past, it did not give law enforcement and intelligence agencies a free hand. The actions of the government still are conducted under the watchful eye of the courts. In the end, law enforcement and intelligence investigators must be mindful that the constitutional protections that limit their authority also serve to protect their own rights as citizens of the United States.

Endnotes

(1.) PL 107-56, October 26,2001, 115 Stat 272.

(2.) 50 U.S.C. [section][section] 1801-1863(1994).

(3.) Reply of the Pennsylvania Assembly to the governor, November 11, 1775.

(4.) 18 U.S.C. [section][section] 2510-2520.

(5.) 407 U.S. 297 (1972).

(6.) 50 U.S.C. [section] 1803(b).

(7.) 50 U.S.C. [section] 1804(a)(7)(B). Foreign intelligence information is defined as "(1) information that relates to, and if concerning a U.S. 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." See 50 U.S.C. [section] 1801 (e).

(8.) 50 U.S.C. [section] 1804.

(9.) 50 U.S.C. [section] 1801 (b).

(10.) 18 U.S.C. [section] 2518(3).

(11.) 18 U.S.C. [section] 2518(3)(a).

(12.) 18 U.S.C. [section] 2518(3)(b).

(13.) 18 U.S.C. [section] 2518(3)(d).

(14.) 629 F.2d 908 (4th Cir. 1980).

(15.) United States v. Falvey, 540 F. Supp. 1306, 1314 (E.D.N.Y. 1982).

(16.) United States v. Cavanagh, 807 F.2d 787, 791 (9th Cir. 1987), and United States v. Duggan, 743 F.2d 59, 73 n.5 (2d Cir. 1984)

(17.) United States v. Duggan, 743 F.2d 59, at 78 (2d Cir. 1984) and United States v. Pelton, 835 F.2d 1067(4th Cir. 1987).

(18.) United States v. Megahey, 553 F.Supp. 1180 (E.D.N.Y. 1982) aff'd sub nom. United States v. Duggan, 743 F.2d 59 (2nd Cir. 1984); United States v. Pelton, 835 F.2d 1067 (4th Cir. 1987); United States v. Badia, 827 F.2d 1458 (11th Cir.1987), cert. denied 485 U.S. 937 (1988); United States v. Johnson, 952 F.2d 565 (1st Cir. 1991), cert. denied 506 U.S. 816 (1992).

(19.) PL 107-56, October 26, 2001, 115 Stat 272, [section] 218 (amending 50 U.S.C. [section][section] 1804(a)(7)(B) and 1823(a)(7)(B)).

(20.) In re All matters Submitted to Foreign Intelligence Surveillance Court, 218 F.Supp. 611.

(21.) In re Sealed Case, 310 F.3d 717 (Foreign Intel. Surv. Ct. Rev., 2002).

(22.) Id. at 736.

(23.) Supra note 21 at 743.

(24.) Supra note 21 at 723; 50 U.S.C. [section] 1801(a)-(e).

(25.) Supra note 21 at 736.

(26.) Supra note 21 at 733; 50 U.S.C. [section] 1806(k).

(27.) 50 U.S.C. [section] 1801(b) distinguishing between agents of a foreign power who are U.S. persons and non-U.S. persons and setting out a somewhat higher standard for a U.S. person to be considered an agent of a foreign power; [section] 1801(e) setting Out a stricter definition of foreign intelligence information where U.S. persons are involved.

(28.) 50 U.S.C. [section] 1805(a)(3)(A); [section] 1824(a)(3)(A); [section] 1842(c)(2).

(29.) 50 U.S.C. [section] 1801(h); [section] 1805(f); [section] 1806(a),(j); [section] 1821(4); [section] 1824(e)(4); [section] 1825; [section] 1843(c)(2); [section] 1845.

(30.) Supra note 1, [section] 203a, amending Rule 6(e)(3)(c)(I)(V).

(31.) Supra note 1, [section] 203b.

(32.) Supra note 1, [section] 905.

(33.) Supra note 1, [section] 201, amending 18 U.S.C. 2516(1).

(34.) Supra note 1, [section] 206, amending 50 U.S.C. [section] 1805(c)(2)(B).

(35.) 50 U.S.C. [section][section] 1841-1846.

(36.) Supra note 1, [section] 214, amending 50 U.S.C. [section] 1842(c)(2).

(37.) Supra note 1, [section][section] 214 and 216 (amending 50 U.S.C. [section][section] 1842, 1843, and 18 U.S.C. [section][section] 3121, 3123, and 3127).

(38.) Supra note 1, [section] 216 (amending 18 [section] 3123; 3123(b)(1)(C) no longer requires that geographic limits be specified; however, 3127(2)(A) imposes a "nexus").

(39.) United States v. Freitas, 800 F.2d 1451 (9th Cir. 1986); United States v. Ludwig, 902 F.Supp. 121 (W.D. Tex. 1995); United States v. Villegas, 899 F.2d 1324 (2nd Cir.1990); United States v. Pangburn, 983 F.2d 449 (2nd Cir. 1993).

(40.) Supra note 1, [section] 213, amending 18 U.S.C. [section] 3103a.

(41.) Adverse result is defined as one resulting in endangering a life or a person's physical safety; flight from prosecution; destruction of or tampering with evidence; intimidation of potential witnesses; serious jeopardy of an investigation or undue delay in trial; see 18 U.S.C. [section] 2705(a)(2).

(42.) Supra note 1, [section] 219, amending F.R.C.P. Rule 41(b)(3). International terrorism is defined in Title 18 U.S.C. [section] 2331(1); domestic terrorism is defined in 18 U.S.C. [section] 2331(5).

(43.) There is an exception to this rule for movable objects; see F.R.C.P. Rule 41(b)(2).

(44.) Supra note 42.

(45.) Supra note 1, [section] 224(a).

(46.) Spano v. New York, 79 S. Ct. at 1206 (1959).

(47.) Olmstead v. United States, 48 S. Ct. 564 at 572-573 (1928).

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.