Electronic Surveillance

This testimony compilation is from the October 29, 2013 hearing, "Potential Changes to the Foreign Intelligence Surveillance Act (FISA)," before the U.S. House of Representatives Permanent Select Committee on Intelligence. From the opening statement of Chairman Mike Rogers: "Today's hearing will provide an open forum to discuss potential amendments to the Foreign Intelligence Surveillance Act and possible changes to the way FISA applications are handled by the Department of Justice and the NSA [National Security Administration]. I hope that all of our witnesses will give clear answers about how proposals under consideration in Congress would affect the NSA's ability to stop terrorist attacks before they occur. […] We are also looking at providing more transparency into FISA Court orders whenever possible. Reforms to the statute could include requiring more court orders to be declassified or publicly released in redacted form. Additional transparency into the process may also be helpful. For example, we could put into statute the process and standards for how information incidentally collected about U.S. persons who are not the targets of our programs is handled and require more public reporting on the number of times that happens. The recent debate over NSA programs often misses the fact that the 215 and 702 collection programs are conducted wholly within the bounds of the law and are approved by the FISA Court. More transparency can help share that outstanding track record with the American people." Statements, letters, and materials submitted for the record include those of the following: Mike Rogers, C.A. Dutch Ruppersberger, James Clapper, James Cole, Keith Alexander, Chris Inglis, Steven G. Bradbury, Stewart A. Baker, and Stephen I. Vladeck.

This executive order authorizes the Attorney General to approve electronic surveillance to acquire foreign intelligence information without a court order.

Timely and accurate information about the activities, capabilities, plans, and intentions of foreign powers, organizations, and persons, and their agents, is essential to the national security of the United States. All reasonable and lawful means must be used to ensure that the United States will receive the best intelligence available. For that purpose, by virtue of the authority vested in me by the Constitution and statutes of the United States of America, including the National Security Act of 1947, as amended (see Short Title note above), and as President of the United States of America, in order to provide for the effective conduct of United States intelligence activities and the protection of constitutional rights, it is hereby ordered as follows:

In this Directive, President Carter amends "Presidential Directive/NSC-19 to include a delegation of power to military judges to authorize electronic surveillance and physical searches directed United States persons who are outside the United States. The military judges included in this delegation are those who are authorized by 10 U.S.C. section 826 to preside at general court-martial and who are designated by the Secretary of Defense to exercise this delegation of power. The Secretary of Defense may designate only military judges who are located outside the United States. Military judges may exercise this power only through issuance of warrants and only with respect to persons who are subject to the Uniform Code of Military Justice. 10 U.S.C. section 802, articles 2(1)-(10). Warrants my be issued only on a finding of probable cause that the United States person is an agent of a foreign power and only when necessary to obtain significant foreign intelligence or counterintelligence. Physical searches may entail unconsented entry into real or personal property but shall use the minimum intrusion necessary to obtain information. This amendment also empowers military judges to approve surreptitious and continuous monitoring as defined in Executive Order 12036 under the same terms applicable to electronic surveillance."

This document is Public Law 103-414, "an act to amend title 18, United States Code, to make clear a telecommunications carrier's duty to cooperate in the interception of communications for law enforcement purposes, and for other purposes."

"An Act to deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes." The following Titles aim to increase and enhance domestic security: Title I--Enhancing Domestic Security Against Terrorism, TITLE II--Enhanced Surveillance Procedures, Title III--International Money Laundering Abatement and Antiterrorist Financing Act of 2001, Title IV--Protecting the Border, Title V--Removing Obstacles to Investigating Terrorism, Title VI--Providing for Victims of Terrorism, Public Safety Officers, and Their Families, Title VII--Increased Information Sharing for Critical Infrastructure Protection, Title VIII--Strengthening the Criminal Laws Against Terrorism, Title IX--Improved Intelligence, and so forth. Section 101 of Title I--Enhancing Domestic Security Against Terrorism addresses the Counterterrorism Fund. It states, "there is hereby established in the Treasury of the United States a separate fund to be known as the "Counterterrorism Fund."

"An Act to extend and modify authorities needed to combat terrorism, and for other purposes." Acts relevant to homeland security included as subsections of this act: "Terrorist Death Penalty Enhancement Act of 2005"; "Reducing Crime and Terrorism at America's Seaports Act of 2005"; "Combating Terrorism Financing Act of 2005"; "Secret Service Authorization and Technical Modification Act of 2005"; and "Combat Methamphetamine Epidemic Act of 2005"

"An act to amend the Foreign Intelligence Surveillance Act of 1978 to establish a procedure for authorizing certain acquisitions of foreign intelligence, and for other purposes." This act is also known as the "FISA Amendments Act of 2008."

"Recent media stories about National Security Agency (NSA) surveillance address unauthorized disclosures of two different intelligence collection programs. These programs arise from provisions of the Foreign Intelligence Surveillance Act (FISA). However, they rely on separate authorities, collect different types of information, and raise different policy questions. As such, where possible, the information contained in this report distinguishes between the two. For both programs, there is a tension between the speed and convenience with which the government can access data of possible intelligence value and the mechanisms intended to safeguard civil liberties. The first program collects and stores in bulk domestic phone records that some argue could be gathered to equal effect through more focused records requests. The second program targets the electronic communications of non-U.S. citizens but may incidentally collect information about Americans. The following sections address (1) what information is being collected; (2) the legal basis for the collection; (3) existing oversight mechanisms; and (4) arguments for and against the two programs. The last section of this report discusses legislation that has been proposed in response to information disclosed about NSA surveillance. Because documents leaked to the news media may be classified, CRS [Congressional Research Service] is precluded from providing a detailed analysis of the content of those documents. The information in this report is based largely on public comments from intelligence officials and Members of Congress."

From the 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. In addressing international terrorism or espionage, the same factual situation may be the focus of both criminal investigations and foreign intelligence collection efforts. The changes in FISA under these public laws 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.'... 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. Bills from the 108th Congress relating to FISA are addressed in CRS [Congressional Research Service] Report RL32608, Foreign Intelligence Surveillance Act: Selected Legislation from the 108th Congress."

"On June 5, 2013, the British newspaper 'The Guardian' published the first of a series of articles based on unauthorized disclosures of classified documents by Edward Snowden, a contractor for the National Security Agency ('NSA'). The article described an NSA program to collect millions of telephone records, including records about purely domestic calls. Over the course of the next several days, there were additional articles regarding this program as well as another NSA program referred to in leaked documents as 'PRISM.' […] In response to the congressional and presidential requests, the Board immediately initiated a study of the 215 and 702 programs and the operation of the FISA [The Foreign Intelligence Surveillance Act] court. This Report contains the results of the Board's 215 program study as well as our analysis and recommendations regarding the FISC's [Foreign Intelligence Surveillance Court] operation."

"This white paper explains the Government's legal basis for an intelligence collection program under which the Federal Bureau of Investigation (FBI) obtains court orders directing certain telecommunications service providers to produce telephony metadata in bulk. The bulk metadata is stored, queried and analyzed by the National Security Agency (NSA) for counterterrorism purposes. The Foreign Intelligence Surveillance Court ('the FISC' or 'the Court') authorizes this program under the 'business records' provision of the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1861, enacted as section 215 of the USA PATRIOT Act (Section 215). The Court first authorized the program in 2006, and it has since been renewed thirty-four times under orders issued by fourteen different FISC judges. This paper explains why the telephony metadata collection program, subject to the restrictions imposed by the Court, is consistent with the Constitution and the standards set forth by Congress in Section 215. Because aspects of this program remain classified, there are limits to what can be said publicly about the facts underlying its legal authorization. This paper is an effort to provide as much information as possible to the public concerning the legal authority for this program, consistent with the need to protect national security, including intelligence sources and methods. While this paper summarizes the legal basis for the program, it is not intended to be an exhaustive analysis of the program or the legal arguments or authorities in support of it."

"Because modern-day criminals are constantly developing new tools and techniques to facilitate their illicit activities, law enforcement is challenged with leveraging its tools and authorities to keep pace. For instance, interconnectivity and technological innovation have not only fostered international business and communication, they have also helped criminals carry out their operations. At times, these same technological advances have presented unique hurdles for law enforcement and officials charged with combating malicious actors. Technology as a barrier for law enforcement is by no means a new issue in U.S. policing. In the 1990s, for instance, there were concerns about digital and wireless communications potentially hampering law enforcement in carrying out court-authorized surveillance. To help combat these challenges, Congress passed the Communications Assistance for Law Enforcement Act (CALEA; P.L. 103-414), which among other things, required telecommunications carriers to assist law enforcement in executing authorized electronic surveillance. The technology boundary has received renewed attention as companies have implemented advanced security for their products--particularly their mobile devices. In some cases, enhanced encryption measures have been put in place resulting in the fact that companies such as Apple and Google cannot unlock devices for anyone under any circumstances, not even law enforcement. Law enforcement has concerns over certain technological changes, and there are fears that officials may be unable to keep pace with technological advances and conduct electronic surveillance if they cannot access certain information."

"Technology has advanced considerably since the framers established the constitutional parameters for searches and seizures in the Fourth Amendment. What were ink quills and parchment are now cell phones and the Internet. It is undeniable that these advances in technology threaten to diminish privacy. Law enforcement's use of cell phones and GPS [Global Positioning System] devices to track an individual's movements brings into sharp relief the challenge of reconciling technology, privacy, and law. [...] Legislation has been introduced in the 112th Congress that proposes to update, clarify, or, in some instances, strengthen the privacy interests protected under the law and give law enforcement a clearer framework for obtaining crucial crime-fighting information. [...] Congress is not the only branch confronting this tension between technology and privacy--the Supreme Court has granted certiorari in 'United States v. Jones', 131 S. Ct. 3064 (2011), to determine whether the Fourth Amendment's protection against unreasonable searches and seizures precludes the police from placing a GPS device on a person's vehicle without a warrant. Though the Court has dealt with similar issues in 'United States v. Knotts', 460 U.S. 276 (1983), and 'United States v. Karo', 468 U.S. 705 (1984), in 'Jones', the Court has been asked to determine what effect the prolonged, warrantless use of a tracking device has on a person's privacy interest. This report will briefly survey Fourth Amendment law as it pertains to the government's tracking programs. It will then summarize federal electronic surveillance statutes and the case law surrounding cell phone location tracking. Next, the report will describe the GPS-vehicle tracking cases and review the pending Supreme Court GPS tracking case, 'United States v. Jones'. Finally, the report will summarize the geolocation and electronic surveillance legislation introduced in the 112th Congress."

From the Document: "As technology continues to advance, what was once thought novel, even a luxury, quickly becomes commonplace, even a necessity. Global Positioning System (GPS) technology is one such example. Generally, GPS is a satellite-based technology that discloses the location of a given object. This technology is used in automobiles and cell phones to provide individual drivers with directional assistance. Just as individuals are finding increasing applications for GPS technology, state and federal governments are as well. State and federal law enforcement use various forms of GPS technology to obtain evidence in criminal investigations. For example, federal prosecutors have used information from cellular phone service providers that allows real-time tracking of the locations of customers' cellular phones. Title III of the Omnibus Crime Control and Safe Streets Act of 1958 (P.L. 90-351) regulates the interception of wire, oral, and electronic communications. As such, it does not regulate the use of GPS technology affixed to vehicles and is beyond the scope of this report. However, bills introduced in the 112th Congress, such as S. 1212 and H.R. 2168, would address circumstances under which law enforcement may obtain, use, or disclose GPS data. […] Several district and circuit courts of appeals have concluded that law enforcement's current use of GPS technology does not constitute a search, and is thus permissible, under the Constitution. One circuit court has found the duration of GPS tracking to be constitutionally significant. State legislatures and state courts have approached the issue in various ways. Some states have enacted laws requiring law enforcement to obtain a warrant before using GPS technology. Some state courts have resolved the question under their own constitutions. Other state courts have relied on Supreme Court precedent, such as 'United States v. Knotts', 460 U.S. 276 (1983), to derive an answer. This report discusses the basics of GPS technology, society's reliance on it, and some of the related legal and privacy implications. In addition, the report examines legislative and judicial responses on both federal and state levels."

"This report provides an overview of federal law governing wiretapping and electronic eavesdropping under the Electronic Communications Privacy Act (ECPA). It is a federal crime to wiretap or to use a machine to capture the communications of others without court approval, unless one of the parties has given his prior consent. It is likewise a federal crime to use or disclose any information acquired by illegal wiretapping or electronic eavesdropping. Violations can result in imprisonment for not more than five years; fines up to $250,000 (up to $500,000 for organizations); civil liability for damages, attorneys' fees and possibly punitive damages; disciplinary action against any attorneys involved; and suppression of any derivative evidence. Congress has created separate, but comparable, protective schemes for electronic communications (e.g., email) and against the surreptitious use of telephone call monitoring practices such as pen registers and trap and trace devices. Each of these protective schemes comes with a procedural mechanism to afford limited law enforcement access to private communications and communications records under conditions consistent with the dictates of the Fourth Amendment. The government has been given narrowly confined authority to engage in electronic surveillance, conduct physical searches, and install and use pen registers and trap and trace devices for law enforcement purposes under ECPA and for purposes of foreign intelligence gathering under the Foreign Intelligence Surveillance Act."

"This report provides an overview of the Electronic Communications Privacy Act (ECPA) and the Foreign Intelligence Surveillance Act (FISA). ECPA consists of three parts. The first, often referred to as Title III, outlaws wiretapping and electronic eavesdropping, except as otherwise provided. The second, the Stored Communications Act, governs the privacy of, and government access to, the content of electronic communications and to related records. The third outlaws the use and installation of pen registers and of trap and trace devices, unless judicially approved for law enforcement or intelligence gathering purposes. FISA consists of seven parts. The first, reminiscent of Title III, authorizes electronic surveillance in foreign intelligence investigations. The second authorizes physical searches in foreign intelligence cases. The third permits the use and installation of pen registers and trap and trace devices in the context of a foreign intelligence investigation. The fourth affords intelligence officials access to business records and other tangible items. The fifth directs the Attorney General to report to Congress on the specifics of the exercise of FISA authority. The sixth, scheduled to expire on December 30, 2012, permits the acquisition of the communications of targeted overseas individuals and entities. The seventh creates a safe harbor from civil liability for those who assist or have assisted in the collection of information relating to the activities of foreign powers and their agents."

"This report provides an overview of federal law governing wiretapping and electronic eavesdropping. It also appends citations to state law in the area and contains a bibliography of legal commentary as well as the text of the Electronic Communications Privacy Act (ECPA) and the Foreign Intelligence Surveillance Act (FISA). It is a federal crime to wiretap or to use a machine to capture the communications of others without court approval, unless one of the parties has given their prior consent. It is likewise a federal crime to use or disclose any information acquired by illegal wiretapping or electronic eavesdropping. Violations can result in imprisonment for not more than five years; fines up to $250,000 (up to $500,000 for organizations); in civil liability for damages, attorneys' fees and possibly punitive damages; in disciplinary action against any attorneys involved; and in suppression of any derivative evidence. Congress has created separate but comparable protective schemes for electronic communications (e.g., e-mail) and against the surreptitious use of telephone call monitoring practices such as pen registers and trap and trace devices."

"This report provides an overview of federal law governing wiretapping and electronic eavesdropping under the Electronic Communications Privacy Act (ECPA). It also appends citations to state law in the area and the text of ECPA. It is a federal crime to wiretap or to use a machine to capture the communications of others without court approval, unless one of the parties has given his prior consent. It is likewise a federal crime to use or disclose any information acquired by illegal wiretapping or electronic eavesdropping. Violations can result in imprisonment for not more than five years; fines up to $250,000 (up to $500,000 for organizations); civil liability for damages, attorneys' fees and possibly punitive damages; disciplinary action against any attorneys involved; and suppression of any derivative evidence. Congress has created separate, but comparable, protective schemes for electronic communications (e.g., email) and against the surreptitious use of telephone call monitoring practices such as pen registers and trap and trace devices. Each of these protective schemes comes with a procedural mechanism to afford limited law enforcement access to private communications and communications records under conditions consistent with the dictates of the Fourth Amendment. The government has been given narrowly confined authority to engage in electronic surveillance, conduct physical searches, and install and use pen registers and trap and trace devices for law enforcement purposes under ECPA and for purposes of foreign intelligence gathering under the Foreign Intelligence Surveillance Act."

From the website: "In October 1994, Congress took action to protect public safety and ensure national security by enacting the Communications Assistance for Law Enforcement Act of 1994 (CALEA ), Pub. L. [Public Law] No. 103-414, 108 Stat. [Statute] 4279. The law further defines the existing statutory obligation of telecommunications carriers to assist law enforcement in executing electronic surveillance pursuant to court order or other lawful authorization. The objective of CALEA implementation is to preserve law enforcement's ability to conduct lawfully-authorized electronic surveillance while preserving public safety, the public's right to privacy, and the telecommunications industry's competitiveness."

Primarily focusing on technology related civil liberties, the EFF is a donor-supported membership organization that works to protect fundamental rights regardless of technology; to educate the press, policymakers and the general public about civil liberties issues related to technology; and to act as a defender of those liberties. Among our various activities, EFF opposes misguided legislation, initiates and defends court cases preserving individuals' rights, launches global public campaigns, introduces leading edge proposals and papers, hosts frequent educational events, engages the press regularly, and publishes a comprehensive archive of digital civil liberties information at one of the most linked-to websites in the world.

Watchdog organization monitoring the modes and methods of Government agencies electronic data gathering and its effect on civil liberties and right to privacy. A good source of information on new government programs for information gathering.