National Security Law Class Notes

National Security Law Class Notes Legal Regulation of Intelligence Collection I. Collecting Communications Content I Foundations of Constitutional and Statutory Constraint Intelligence cycle flow chart Planning'&' Direction' Feedback' Collection' Dissemination' Analysis' o The intelligence cycle refers to the process by which the government identifies and collects information. Different government actors and agencies have different tasks and priorities, though they may and often will overlap.! It is important to distinguish between types of collection activities that implicate 4th Am. constitutional concerns, and those that do not. This was not a significant concern until recently, because intelligence activities previously involved mostly persons and activities outside of the United States, and therefore did not directly implicate 4th Am. o Content refers to the substance of the communication. Metadata refers to the non content aspects of the communication that facilitate the communication or transmission of the message (e.g. the number you dialed on your cell phone, the IP address contacted, etc.).! Metadata includes IP addresses, cell tower routing information, etc. o RC calls Farnsworth, both using cell phones. The government records the conversation. Content, metadata, a third party record, or some combination?! Content o RC calls Farnsworth, using Skype. The government records the conversation. Content, metadata, a third party record, or some combination?! Content o RC emails Farnsworth. Government captures a copy of the complete message in transit. Is the body of the message content, metadata, third party record, or combination?! Content not a third party record because even though, for example, the fiber optic cable used to transport the message belongs to AT&T or Verizon, the government is capturing the message in real time, essentially grabbing the message out of the air like eavesdropping. o Same question. Is the information in the to/from lines content, metadata, third party record, or some combination?! Metadata 1

o Same question. Is the information in the subject line content, metadata, third party record, or some combination?! Content not metadata because the words in the subject line do not help the message get routed. o Same email, but this time the government acquires a copy of the body of the message by accessing Google s server, where a copy resides because Farnsworth has not deleted it from his Inbox. Content, metadata, third party record, or some combination?! Content. This hypothetical involves a 3rd party record because the email was obtained from Google s server. If the message is in the hands of a 3rd party, the government is free to obtain the message without restriction from the 3rd party, even though in this case Dean Farnsworth s 4th Am. rights are the ones actually at stake. o Same question, but this time the government just acquires the to/from information. Content, metadata, third party record, or some combination?! Metadata, because the information in the to/from lines helps the message get routed (tells the server where to direct the message). In this case, also a third party record because obtained from Google, not one of the parties sending or receiving the message. o RC opens up Chrome, and using Google does a search for how to make a bomb. The government intercepts and copies the message en route to Google, in real time. Content, metadata, third party record, or some combination?! Actual text of the search query (the words how to make a bomb ) seem like content. But if RC instead typed the actual URL of the website he was trying to reach through the search engine, there are valid arguments that it is either content or metadata. The URL is literally the address directing the browser to the correct page, but RC is still typing in his own words. Surveillance of the content of communications (spoken or written) o 4th Am. protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause particularly describing the place to be searched, and the persons or things to be seized. o There is an important distinction between live surveillance vs. post hoc data collection. In the pre technological age, the manpower intensity required to conduct live surveillance and the high risk of detection were important checks on the government s surveillance capacity.! The existing legal structures in this area are based on pre technological age capabilities, and thus focus on physical presence or trespass. (The major concern at the time the 4th Am. was written was the use of general warrants by agents of the crown. Thus, the 4th Am. sought to prevent the use of general warrants by including a particularity requirement).! Today, the 4th Am. still incorporates import notions of physical presence or trespass. A search or arrest is lawful under the 4th Am. if done pursuant to a valid warrant. However, even warrantless searches or seizures can be valid if the search or seizure was reasonable. o There was very little development of 4th Am. jurisprudence until the use of radio communications began to grow rapidly in the 1920s. The Radio Act of 1927 was mostly intended to establish a federal regulatory system for this new type of communication, but the act also addressed concerns about the interception and surveillance of radio communications. Radio Act of 1927 o Specifically, 27 of the Act provided that 2

! no person not being authorized by the sender shall intercept any message and divulge or publish the contents, substance, purport, effect, or meaning of such intercepted message to any person o Section 31 explained that the Act encompassed all means of communication employing electrical energy without the aid of any wire connecting the points involved in the communication.! In other words, the Radio Act only covers wireless communications. o Olmstead v. US! Question is whether the use of evidence of private telephone conversations between Ds and others, intercepted by wiretapping, amounted to a violation of 4th Am.! Court found no 4th Am. violation, reasoning that there was no physical intrusion into the D s home or office the wire itself was the only point of physical intrusion, and the wire is treated as a public place.! [Brandeis dissent] Clauses guaranteeing to the individual protection against specific abuses of power must have a capacity of adaptation to a changing world Subtler and more far reaching means of invading privacy have become available to the Government.! [RC] After Olmstead, law enforcement essentially had free reign to engage in warrantless wiretapping (this changed in Nardone). Federal Communications Act of 1934 o The Federal Communications Act was passed as an update to both the Radio Act and a much older law relating to the telephone industry. The FCA not only carried forward the Radio Act s prohibition on unauthorized interception of radio signals but also extended it to encompass wire communications (telephone calls and telegraph messages) by rephrasing the old prohibition in a technology neutral manner (Radio Act covered only wireless communications). o Specifically, 605 of the FCA provided that! no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, purport, effect, or meaning of such intercepted communications to any person o Thus, a violation of the FCA requires both an interception of the communication and publication or disclosure of that communication. o Nardone v. US! Court held that the statute did apply to the government as much as private persons, and that use of wiretap recordings as trial evidence satisfied the statutory condition of divulging or publishing intercepted communications. So the question was then whether the government was still allowed to engage in warrantless wiretapping so long as the information derived from it would not be used at trial (because again, both interception and disclosure are required for a violation of the FCA one without the other is insufficient). Katz v. United States o FBI agents had attached an electronic listening and recording device to the outside of the public telephone booth from which Katz had placed his calls. o 4th Am. protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th Am. protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.! 4th Am. governs not only the seizure of tangible items, but extends as well to the recording of oral statements, overheard without any technical trespass under local property law. 3

o In contrast to the Court s assumption in Olmstead, Katz makes clear that the reach of the 4th Am. does not turn upon the presence or absence of a physical intrusion into a given space.! [RC] So Katz is the point in time where physicality ceases to be a prerequisite for a finding of a 4th Am. violation. o Court holds that the government s activities in electronically listening to and recording petitioner s words violated the privacy upon which he justifiably relied while using the telephone booth (even though public), and thus constituted a search and seizure within the meaning of the 4th Am. Fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance. Notes Wired vs. wireless distinction was central to 20th century law. Radio Act only addressed wireless communications, and the FCA, which covered wired communications, required both interception and disclosure. So, for example, wiretap on a phone would only be covered by 4th Am. o In 1940, Roosevelt issued an order authorizing the FBI to engage in warrantless wiretapping, as well as placement of listening devices, in circumstances involving grave matters involving defense of the nation. The order emphasized that surveillance of subversives should as much as possible focus on non citizens, but it did not preclude surveillance of citizens.! (And in fact, J. Edgar Hoover, then director of the FBI, interpreted this authorization fairly broadly). Title III of the Omnibus Crime Control and Safe Streets Act of 1968 o Congress responded to Katz with Title III, a statute that regulates the process of getting a wiretap warrant for criminal investigations. However, the legislation explicitly stated that it was not meant to permit or deny the use of surveillance for non criminal, national security purposes; it spoke solely to the criminal investigative scenario.! Title III includes a proviso stating that the law did not limit the constitutional power of the President to wiretap when needed In response to actual or potential attacks of a foreign power; To obtain foreign intelligence information deemed essential to security; To protect national security information against foreign intelligence activities; To protect the [US] against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. o (Note that this last clause is not limited to foreign actors or activities).! The inclusion of this proviso suggests that Congress was at least somewhat aware of the FBI s warrantless wiretapping activities, and possibly expresses some support for those activities. o The basic model under Title III is that the government may obtain a warrant for installation of a surveillance device to record communications if it can establish PC to believe that the procedure will generate evidence that the person is committing, has committed, or is about to commit one of the many crimes enumerated in the statute.! If approved, the order may not last more than 30 days, though the government can ask for repeated renewals if it can show a need. The application procedure is entirely ex parte and in camera (so no opposing counsel present and no public awareness of proceeding). However, there is a catch eventually, the target of the application is supposed to be notified. [RC] Notification requirement limits the usefulness of Title III. But notice that Title III is Congress effectively increasing wiretapping authorization, while SCOTUS is simultaneously ramping up 4th Am. protections in this area. o You are Director Hoover s legal advisor at the FBI, and the Supreme Court has not yet issued the Katz decision Olmstead still governs. Are black bag jobs permissible? 4

! Black bag jobs are surreptitious break ins (physical intrusion) to install a listening device (a bug ) in someone s home or office. Black bag jobs, used in addition to warrantless wiretaps, were significantly curtailed after 1966 but not stopped.! Under Olmstead, black bag jobs are problematic because they involve a physical presence or trespass (unlike wiretaps). If the government does not disclose or divulge any of the information obtained from the wiretaps, it will avoid a violation of the FCA. But does the government still violate the 4th Am.? One argument that the government does not violate the 4th Am. by such action is that the core purpose of the 4th Am. relates to criminal prosecutions. If the core purpose of these black bag jobs and warrantless wiretaps is intelligence gathering rather than criminal prosecution, does it fall within an unwritten exemption from the warrant requirement? [Class discussion] Recent Events o The NSA is a collection agency, so its goal is typically to gather intelligence information without being detected. If an agency s mission also includes operations functions, it may be interested in acquiring the ability to disrupt systems and communications.! NSA is under the Dept. of Defense. Cyber Command is part of the US military. o Obama is scheduled to give a speech on Jan. 17 regarding proposed reforms to the NSA. Washington DC District Court judge John Bates, a previous chief justice of the Foreign Intelligence Surveillance Court (FISC) has criticized many of the committee s recommendations that Obama will address, such as the suggestion of having a public advocate in the courtroom to argue against the Justice Department. II. Collecting Communications Content II Distinction btwn Domestic Intelligence v Foreign Intelligence Foreign Intelligence (FI) vs. Domestic Intelligence (DI) o The FI vs. DI distinction is not about the location of the target or activities within or outside of the US, or about the subject matter of the activities. Instead, the distinction is about who the person is working as an agent for or on behalf of. US v. US Dist. Ct. ( Keith case ) o Lawrence Plamondon was prosecuted for bombing a CIA office in Michigan in the 1960s. Government surveilled Plamondon without a warrant. o Question is whether the President has the power, acting through the AG, to authorize electronic surveillance in internal security matters without prior judicial approval. o Government points to proviso in Title III stating that the law does not limit the constitutional power of the President to wiretap when needed to protect the [US] against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government.! Government argues that in excepting national security surveillances from the Act s warrant requirement, Congress recognized the President s authority to conduct such surveillances without prior judicial approval.! [RC] Although the government could have used Title III to wiretap Plamondon (because they had PC to believe he had committed a crime), Title III has the obvious drawback of eventually requiring disclosure to the target. Government s activities do not fall under any of the other exceptions to Title III (listed above), because those all involve foreign intelligence activities, and this is a purely domestic threat by a domestic actor. However, remember that the issue in this case is not whether the government s activities fall within one of the exceptions to Title III, but 5

whether the government s warrantless wiretap of Plamondon violated his 4th Am. rights. o Court in Keith does not question the possibility that the President may have the inherent power or authority to engage in these types of activities (warrantless wiretapping in the name of national security) in the absence of affirmative statutory authority. But because of Katz, the government can no longer avoid a finding of a 4th Am. violation simply by arguing that there was no physical trespass or that the place involved was public. o 4th Am. considerations! Criminal investigation Traditional warrant required! Domestic intelligence Special warrant required (Keith) o Keith says that warrants are required for DI wiretaps. In Keith, the Court suggested that national security wiretaps may not have to meet all the 4th Am. requirements applicable in criminal investigations, but it did not specify what alternative processes might be appropriate.! However, it is likely that the government would want to impose a RS standard for DI wiretaps, rather than the PC typically required for a criminal prosecution. o [RC] The question of 2013 is whether Keith was really the end of warrantless wiretapping for domestic intelligence purposes. o No statute was ever passed to create a DI warrant system, as anticipated in Keith. o The government wants to tap the phone of the North Korean ambassador to the UN, in New York City. Does Keith control with respect to whether a warrant is required?! No falls within exception. o The government wants to tap the phone of an American citizen suspected of passing military secrets to China, in New York City. Does Keith control?! No falls within exception. o The government wants to tap the phone of an American citizen suspected of being a member of Al Qaeda, in New York City. Does Keith control?! No falls within exception (with the obvious underlying question or caveat that it depends on how we characterize Al Qaeda as an entity e.g. how many Americans are required to be members before the group is no longer obviously a foreign power?) o The government wants to tap the phone of an American citizen suspected of being a member of an extremist militia group in Idaho, thought to be planning attacks on US government buildings. Does Keith control?! Yes (actor and activities are all domestic). Comparing impact of 4th Am. Based on Investigative Purpose (assuming target has 4th Am. rights) Criminal Investigation 6 Domestic Intelligence (DI) Foreign Intelligence (FI) [FISA rules] Who decides? Judge Judge Foreign Intelligence Surveillance Court (FISC) [CJ of SCOTUS decides who is appointed to FISC when there is an opening no

What standard? Probable cause (crime) PC (?) Keith requires a special warrant, but no such system was ever created by Congress the DI is essentially defunct today. 7 involvement by President or Congress] PC (agent of a foreign power) What process? Ex parte, in camera? Ex parte, in camera (No presence of opposing side FISC is mostly there for process reinforcement [to make sure all the steps have Admissible in subsequent trial? Yes, so long as no bad faith been followed])? Yes, subject to review to determine if FISA was followed and if constitutional. US v. Ehrlichman o Keith is limited in applicability to domestic intelligence (DI) activities. For foreign intelligence (FI) activities, no wiretap warrant is required (as Congress suggested in Title III itself). However, a physical break in is much more intrusive than a wiretap, and this case involved only domestic actors and activities (just like Keith). III. Collecting Communications Content III The Foreign Intelligence Surveillance Act of 1978 (FISA) Introduction o Two events prompted congressional enactment of FISA the Supreme Court s decision in Keith, and the Church Committee s (Senate) startling revelations of illegal spying and other activities by US intelligence agencies. These agencies sought to target and disrupt politically active domestic groups (principally civil rights and anti war organizations), and they engaged in widespread warrantless surveillance.! [RC] So there is no domestic equivalent of the FISC because such an enactment would have been politically disastrous. o DI requires a warrant, FI does not (Keith). o NSA supported the enactment of FISA, possibly because it thought willingly submitting to congressional oversight through FISA would help restore some of the agency s legitimacy after the negative publicity resulting from the Church Committee investigations.! At the time, the NSA s main concerns were the activities of foreign actors on foreign soil, e.g. the USSR, People s Republic of China, etc. So the NSA also supported FISA because it though that enactment of legislation governing these activities would prevent public and congressional concerns from spilling over into its core missions, and limiting NSA s ability to act with virtually no restrictions in the area of intelligence gathering on foreign soil. In other words, NSA supported FISA because it though restrictions on DI would help preserve its more important freedoms in the area of FI. (What FISA did was essentially subject a core subset of activities to strict congressional oversight, while preserving the agency s core freedoms in other areas essentially leaving the NSA s abilities in FI collection as they existed before). o It is important to recognize that FISA does not actually cover all electronic surveillance only electronic surveillance that fits within one of the 4 scenarios set out in 50 USC 1801(f).

! [RC] ** There will be an exam question setting out a particular scenario and asking whether the FISA definition of electronic surveillance applies/covers that situation. The Foreign Intelligence Surveillance Act of 1978 (FISA) o When precisely does the government s use of electronic devices trigger the need to get a FISA warrant? 50 USC 1801.! (1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication Sent by or intended to be received by a particular, known US person Who is in the US, If the contents are acquired by intentionally targeting that US person, Under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.! 1801(f)(1) is the tech neutral, US person on US soil rule. It covers both radio and wire ( old school ) communications. So (f)(1) is wired/wireless neutral. The term US person includes both lawful permanent residents and US citizens. Note that under (f)(1), the target is the one that must be within the US (the other person involved in the transaction may actually be outside the US). Under (f)(1), the location of the surveillance is irrelevant. For example, the government could actually be monitoring a US person s communications using cross border satellites, etc. o RC (target, US person) is in Austin. He makes a local phone call to his neighbor down the street. Covered or not covered?! Covered o RC makes a call to Bobbitt in London.! Covered o RC uses Skype to call Bobbitt in London.! Covered o A Mexican citizen present in the US calls RC.! Not covered! (2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the US, Without the consent of any party thereto, If such acquisition occurs in the US, But does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18;! 1801(f)(2) is the copper wire rule in contrast to (f)(1), (f)(2) only covers wired communications. In general, (f)(2) is intended to cover domestic phone calls. But (f)(2), in contrast to (f)(1) is also target neutral under (f)(2), the citizenship status of the parties is irrelevant. o The year is 1978. RC uses a phone to order pizza. Covered or not covered?! Covered o Present day. RC uses a cell phone to order a pizza.! Probably not covered (with the recognition that there is some ambiguity regarding whether a significant portion of the communication is taking place over a wire). 8

! (3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, Under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and If both the sender and all intended recipients are located within the US;! 1801(f)(3) is the radio specific rule to complement (f)(2) as the wire specific rule. o RC calls his neighbor (both are local) on a CB radio. Covered or not covered?! Covered o RC calls his friend in Mexico City on a short wave radio.! Not covered (despite the fact that (f)(3)) is fairly broad). Is this situation covered under (f)(1)? That depends if the friend in Mexico City is the target, then no warrant is necessary the government is free to surveil him without a warrant. But if RC is the target, then the situation is covered under (f)(1) and a warrant is required.! (4) the installation or use of an electronic, mechanical, or other surveillance device in the US For monitoring to acquire information, other than from a wire or audio communication, Under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.! 1801(f)(4) covers the black bag job scenario, which is essentially the placement of a recording device inside a target s home or office to capture oral communications not being communicated over a wire or radio frequency. (f)(4) is the most all encompassing scenario, because it is obviously the most intrusive under 4th Am. standards. The citizenship status of the parties, etc. is all irrelevant under this section.! Notes It is clear that purely domestic communications will somehow be covered under 50 USC 1801, and that purely foreign communications generally will not be covered. o 50 USC 1805 Required findings by the FISC Judge! (2) the application has been made by a Federal officer and approved by the AG;! (3) on the basis of the facts submitted by the applicant there is PC to believe that (A) the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, that no US person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the 1st Am.; and o 50 USC 1801(a) Foreign power means! (1) a foreign government or any component thereof, whether or not recognized by the US;! (2) a faction of a foreign nation or nations, not substantially composed of US persons;! (3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;! (4) a group engaged in international terrorism or activities in preparation therefor; 9

! (5) a foreign based political organization, not substantially composed of US persons;! (6) an entity that is directed and controlled by a foreign government or governments; or! (7) an entity not substantially composed of US persons that is engaged in the international proliferation of weapons of mass destruction. o 50 USC 1801(b) Agent of a Foreign power means! (1) any person other than a US person, who (A) acts in the US as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4) of this section; (B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the US contrary to the interests of the US, when the circumstances of such person s presence in the US indicate that such person may engage in such activities in the US, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities; (C) engages in international terrorism or activities in preparation therefor; (D) engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor; or (E) engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor or on behalf of a foreign power; or! (2) any person who (A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the US; (B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the US; (C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power; (D) knowingly enters the US under a false or fraudulent identity for or on behalf of a foreign power or, while in the US, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or 10

(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C). o [So 1801(b)(2) is the broader category that covers US persons. Note that facilities as used in this section means not just buildings, but also telecommunications networks, other infrastructure, etc.] (B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;! (3) the proposed minimization procedures meet the definition of minimization procedures under section 1801(h) of this title; and [RC] Minimization is a back end process that refers to what the government can do with these communications once they have been obtained. The idea behind requiring minimization procedures is that in the course of a FI investigation, the government will capture significant quantities of unintended or irrelevant information, and it is impossible to avoid gathering the majority of this type of data. Thus, there should be a process for destroying or disposing of this unintended or irrelevant information to avoid the possibility of its dissemination to or use by other government officials who may be interested in the information for a non FI purpose.! (4) the application which has been filed contains all statements and certifications required by section 1804 of this title and, if the target is a US person, the certification(s) are not clearly erroneous on the basis of the statement made under 1804(a)(7)(E) of this title and any other information furnished under section 1804(d) of this title. Calibration of the Standard Comparing the impact of the 4th Am. based on investigative purpose (assuming the target has 4th Am. rights) o Certification (gov t need only assert certain facts) o Certification (clear error review) (* This is the FISA 1804 standard) o Reasonable Suspicion o Probable Cause (* This is the FISA 1805 standard re: foreign power ) o Preponderance of the Evidence o Clear and Convincing Evidence o Beyond a Reasonable Doubt (Although 1804 just involves a certification process, some of the information required also relates to the necessary showing of probable cause. [RC] The point here is simply to recognize that certification is a time intensive process that requires significant manpower to collate and type up all of this information. o 50 USC 1804(a) Required Certifications! (1) [Who is filling out the form]! (2) [Has the AG approved this application?]! (3) [Who is the target?]! (4) Why do you believe that (A) the target is a foreign power or an agent of a foreign power; and that (B) the target is using or is about to use the place or communication device to be monitored]! (5) [Plans for minimizing the impact on US person communications you accidentally collect] 11