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Continued Oversight of the Foreign Intelligence Surveillance Act : Hearing Before the S Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2013 Continued Oversight of the Foreign Intelligence Surveillance Act : Hearing Before the S. Committee on the Judiciary, 113th Cong., October 2, 2013 (Remarks by Professor Laura K. Donohue, Geo. U. L. Center) Laura K. Donohue Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: http://scholarship.law.georgetown.edu/cong/117 This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: http://scholarship.law.georgetown.edu/cong Part of the International Law Commons, Military, War, and Peace Commons, and the National Security Law Commons Remarks prepared for the Oct. 2, 2013 Hearing on Continued Oversight of the Foreign Intelligence Surveillance Act Senate Committee on the Judiciary Professor Laura K. Donohue Georgetown Law I. INTRODUCTION ...................................................................................................................................................... 1 II. ORIGINS OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT ........................................................... 2 A. INITIAL REVELATIONS ................................................................................................................................................................. 2 B. NSA DOMESTIC SURVEILLANCE ................................................................................................................................................ 4 1. Project MINARET ................................................................................................................................................................. 6 2. Operation SHAMROCK ....................................................................................................................................................... 6 C. BROADER CONTEXT .................................................................................................................................................................... 8 III. CONTOURS OF FISA ......................................................................................................................................... 12 A. ACQUISITION OF INFORMATION TIED TO ENTITY TARGETED PRIOR TO COLLECTION .................................................... 13 B. PROBABLE CAUSE AND SATISFACTION OF CRIMINAL STANDARDS PRIOR TO COLLECTION ............................................ 13 C. MINIMIZATION PROCEDURES FOR ACQUISITION AND RETENTION .................................................................................... 17 D. INTRODUCTION OF THE FOREIGN INTELLIGENCE SURVEILLANCE COURT ......................................................................... 17 E. BROAD CONGRESSIONAL SUPPORT ........................................................................................................................................ 18 F. SUBSEQUENT AMENDMENT: TRADITIONAL AND NON-TRADITIONAL FISA ................................................................... 18 1. Traditional FISA: Physical Search, Pen/Trap ...................................................................................................... 19 2. Traditional FISA: Business Records, Tangible Goods, and Section 215 ..................................................... 21 3. Modern FISA and Section 702 ...................................................................................................................................... 25 IV. NSA TELEPHONY METADATA COLLECTION UNDER §215 ................................................................... 30 V. BULK COLLECTION RUNS CONTRARY TO FISA’S GENERAL APPROACH .......................................... 33 A. PARTICULARIZATION IN PLACE OF BROAD SURVEILLANCE ................................................................................................ 34 1. Wholesale Collection of Information ........................................................................................................................ 34 2. Prior Targeting to Justify Collection of Data ......................................................................................................... 35 3. Heightened Protections for U.S. Persons ................................................................................................................. 35 B. ROLE OF THE FOREIGN INTELLIGENCE COURT ..................................................................................................................... 36 1. Reliance on NSA to Ascertain Reasonable, Articulable Suspicion ................................................................ 36 2. Detailed Legal Reasoning and Creation of Precedent ....................................................................................... 45 3. Politicization ....................................................................................................................................................................... 46 VI. BULK COLLECTION VIOLATES FISA’S STATUTORY PROVISIONS ...................................................... 50 A. “RELEVANT TO AN AUTHORIZED INVESTIGATION” .............................................................................................................. 50 1. Relevance Standard .......................................................................................................................................................... 50 2. Connection to “an Authorized Investigation” ....................................................................................................... 52 B. SUBPOENA DUCES TECUM ....................................................................................................................................................... 55 1. Not for Fishing Expeditions ........................................................................................................................................... 56 2. Specificity .............................................................................................................................................................................. 57 3. Past Crimes ........................................................................................................................................................................... 57 4. March 2009 FISC Opinion .............................................................................................................................................. 58 C. EVISCERATION OF PEN/TRAP PROVISIONS .......................................................................................................................... 59 D. POTENTIAL VIOLATION OF OTHER PROVISIONS OF CRIMINAL LAW ................................................................................. 59 VI. CONSTITUTIONAL CONSIDERATIONS ....................................................................................................... 60 A. THE FOURTH AMENDMENT PROHIBITION ON GENERAL WARRANTS ............................................................................... 61 B. THIRD PARTY DATA ................................................................................................................................................................ 66 VIII. CONCLUDING REMARKS .............................................................................................................................. 70 I. INTRODUCTION Congress introduced the 1978 Foreign Intelligence Surveillance Act to make use of new technologies and to enable the intelligence community to obtain information vital to U.S. 1 national security, while preventing the National Security Agency and other federal intelligence-gathering entities from engaging in broad domestic surveillance. The legislature sought to prevent a recurrence of the abuses of the 1960s and 1970s that accompanied the Cold War and the rapid expansion in communications technologies. Congress purposefully circumscribed the NSA’s authorities by limiting them to foreign intelligence gathering. It required that the target be a foreign power or an agent thereof, insisted that such claims be supported by probable cause, and heightened the protections afforded to the domestic collection of U.S. citizens’ information. Initially focused on electronic surveillance, the Foreign Intelligence Surveillance Act gradually expanded over time to incorporate physical searches, pen registers and trap and trace, and business records and tangible goods. The addition of these provisions took place within the same general framing that Congress had adopted in enacting the legislation in the first place. Documents related to the recently revealed telephony metadata program, conducted under the auspices of the Foreign Intelligence Act and its subsequent amendments, suggests that the National Security Agency is now interpreting the statutory provisions in a manner directly contrary to Congress’ intent. It reflects neither the particularization required by Congress prior to acquisition of information, nor the role anticipated by Congress for the Foreign Intelligence Surveillance Court and Court of Review. The specific legal reasoning offered in defense of the program, moreover, violates the statutory language in three important ways: (a) it contradicts the requirement the records sought “are relevant to an authorized investigation”; (b) it violates the statutory provision that requires that information sought could be obtained via subpoena
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