NSA eavesdropping round-up

July 3, 2006

On May 11th, 2006, USA Today reported that the National Security Agency has been collecting the telephone records of millions of Americans, and has been sifting through the data in a search for patterns of terrorist activity. While the government often obtains specific calling information (such as telephone numbers dialed) for targeted criminal and intelligence investigations, the massive scope of this NSA data mining operation has raised questions about its legality and propriety.

Recent revelations about the NSA’s post-9/11 surveillance programs have unearthed a complex set of legal and operational issues. In the interest of bringing some clarity to this topic, we offer the following summary of terms related to the NSA and electronic eavesdropping.

The NSA: The National Security Agency is the largest agency within the U.S. “intelligence community” – a set of inter-related organizations tasked with collecting information to be utilized by the executive branch for security and foreign policy purposes. This “community” includes the FBI, the CIA, and the panoply of military intelligence bureaus. All intelligence work product, including that produced by the NSA, is now overseen and analyzed by the recently created Director of National Intelligence.

“The NSA is the largest agency within the U.S. intelligence community …”

The NSA is tasked with collecting “signal intelligence” – radio, telephone, and other electronic transmissions. The full scope of its collection ability is classified, but media reports have indicated that it has the technical capacity to capture nearly all signal and wire transmissions in the world.

The NSA can monitor the “content” of all foreign communications traffic between non-U.S. persons without a warrant. However, if the NSA seeks to eavesdrop on the content of communications with a domestic nexus, it must first seek approval from the FISA (Foreign Intelligence Surveillance Act) court. FISA was established in 1978 after revelations about warrantless surveillance of American citizens conducted by the NSA and other intelligence organizations.

FISA court: A panel of 11 federal judges who approve wiretaps and physical searches in national security investigations. FISA judges perform their duties in secret, in a secure room at the Justice Department. FBI agents and NSA functionaries bring affidavits before the court, and a FISA judge then decides whether to authorize a particular search or surveillance. According to documentation released by the FISA court, FISA judges have very rarely turned down such requests. Also, the legal standard required to obtain a FISA wiretap is substantially different than that required to obtain a wiretap in a criminal investigation (see the “probable cause” section below.)

Title III wiretaps: Wiretaps used in federal criminal investigations. Title III taps were created pursuant to the Omnibus Crime Control and Safe Streets Act of 1968. “Title III” refers to the wiretap section of the 1968 legislation. Title III wiretaps must be approved by a federal judge, after the presentation of an affidavit showing “probable cause” (see below.)

Probable Cause: As applied to search warrants, this is the legal standard that must be met before a judge will approve a wiretap or a physical search. In criminal investigations, “probable cause” means that it is probable that evidence of a crime will be uncovered as the result of a search or wiretap.

The FISA law articulates a separate “probable cause” standard for foreign intelligence searches. The FISA standard requires probable cause that the target of a search or wiretap is an “agent of a foreign power,” meaning an agent of a foreign government, terrorist organization, etc.

“The FISA law articulates a separate probable cause standard for foreign intelligence searches …”

The Supreme Court has not ruled on the Constitutionality of this separate “probable cause” standard for foreign intelligence. While lower courts have ruled that FISA is Constitutional, and that evidence gathered through FISA can be used in criminal prosecutions, the Supreme Court has yet to rule on these issues with finality. However, in the 1972 case “United States vs. U.S. District Court,” the Court hinted at the possibility that there may be a foreign intelligence exception to the normal criminal investigative standard. This possible exception forms the legal basis upon which the FISA court has been built.

Fourth Amendment: The provision of the Bill of Rights that governs the state’s search and seizure powers. It prohibits unreasonable searches and seizures, and requires that “probable cause” be demonstrated to a magistrate before warrants are issued.

“Reasonable” search and seizure: An evolving legal doctrine that determines which searches are Constitutional, and which are not. While “probable cause” and a warrant are required for many physical searches, there are exceptions that are still considered to be Constitutional, since they are deemed to be “reasonable,” and thus in compliance with the Fourth Amendment. The bounds of what is considered “reasonable” have changed as Supreme Court case law has changed.

In the realm of electronic surveillance, a warrant is required for wiretaps in criminal investigations. Under FISA, there are certain exigent circumstances that allow warrantless eavesdropping, but only for a finite time (see the “warrantless wiretapping” section below.)

Lawyers for the Bush administration have made arguments that electronic surveillance for foreign intelligence purposes includes circumstances under which ongoing, warrantless surveillance (including surveillance of international communications involving a U.S. person) may be conducted, and may still be considered “reasonable.” This position is controversial, and is at the heart of the debate surrounding the “Terrorist Surveillance Program” disclosed by the New York Times in December of 2005. The Supreme Court has never ruled on the merits of this particular legal argument.

Relevance: When obtaining a court order for documents, such as telephone records, agents must convince a judge that the documents are “relevant” to an ongoing investigation. The “relevance” standard is lesser that the “probable cause” necessary to conduct a search or wiretap.

Warrantless searches: Certain physical searches have been held to be “reasonable” by the Supreme Court, even though they have occurred in the absence of search warrants. Such warrantless searches include those which occur under “exigent” or emergency circumstances, if probable cause exists. What constitutes an “exigent circumstance” varies due to the factual situation. Defenders of the NSA’s warrantless surveillance program have attempted to rely on the concept of “exigent circumstances” to justify the program, but this position is highly controversial.

Warrantless wiretaps: Under the FISA statute, foreign intelligence wiretaps can only be conducted without warrants for 72 hours (after which time the FISA court must be notified), or for 15 days after the outbreak of war. Wiretaps conducted for criminal investigations do not share these exceptions.

“Inherent” Presidential authority: A category of unenumerated presidential powers that flow from the President’s enumerated powers under Article II of the Constitution. Article II articulates specific powers and duties for the President – such as serving as Commander-In-Chief of the armed forces. “Inherent powers” are considered to be other authorities that flow from these articulated powers – such as the ability to use the armed forces to repel a sneak attack on the country, in the absence of a Congressional declaration of war.

Some of these “inherent powers” have been affirmed by the Supreme Court, while others have been claimed in the absence of court approval. Various claims of “inherent authority” have been made on occasion, only to be later struck down by the Supreme Court. For instance, President Nixon claimed to have inherent authority to conduct warrantless domestic surveillance of U.S. citizens who he considered to be a security threat. The Supreme Court later ruled against this concept of inherent authority in “United States vs. U.S. District Court”, otherwise known as the “Keith” case.

“President Nixon claimed to have inherent authority to conduct warrantless domestic surveillance of U.S. citizens …”

Trap and trace device: A device which tracks the source of an incoming call to a telephone line. The device does not record the audio content of the call, but only records the destination number from which the call was made. Trap and trace devices can be obtained for criminal investigations by a showing of relevance. Trap and trace devices for foreign intelligence purposes can be obtained for any investigation to gather foreign intelligence information, pursuant to FISA guidelines.

Pen Register device: A device which tracks outgoing numbers dialed from a particular phone line. Pen register devices can be obtained for criminal investigations by a showing of relevance. Pen register devices for foreign intelligence purposes can be obtained for any investigation to gather foreign intelligence information, pursuant to FISA guidelines.

Subpoena: An order to produce documents or items, or to compel testimony from an individual. A subpoena is a court order if it is signed by a judge.

Administrative Subpoena: A subpoena which is issued by a prosecutor or investigative agent, as opposed to a judge. Administrative subpoenas have traditionally been limited to the production of records from certain highly regulated businesses, who are required to disclose such information as part of the statutory or regulatory scheme which governs them. For instance, administrative subpoenas are routinely issued for records in Medicare fraud or OSHA investigations.

According to press reports, administrative subpoenas allowed the Bush administration to obtain information on international banking transactions through the SWIFT program.

National Security Letter (NSL): An administrative subpoena sought by FBI agents in the foreign intelligence realm. NSLs were brought into existence by the 1978 FISA law, which allowed NSLs to be requested of telephone companies, credit reporting agencies, or banks. The 2001 PATRIOT Act broadened the types of organizations from which NSLs could be requested, to include a wide variety of financial and other institutions. After the passage of the PATRIOT Act, NSLs generated much public controversy, due to the fact that they could be issued with a (potentially) perpetual gag order, which could not be challenged in court. Since the 2006 reauthorization of the PATRIOT Act, NSLs are now allowed to be challenged in court, although a high standard has been set for challenges to the accompanying gag order.

Third party records: Personal records held by third parties – including banks and other financial institutions – can often be obtained without resorting to a search warrant. In United States vs. Miller, the Supreme Court ruled that when records are entrusted to a third party (such as a bank), the standard of “probable cause” need not be met for seizure of these records to take place. Because of this ruling, investigative agents need only demonstrate to a judge that records sought are “relevant” to an ongoing criminal investigation, in order to obtain a court order to produce them.

Echelon: A Clinton era NSA surveillance program. According to press reports, the program scanned the content of electronic communications, and ran this raw information through banks of supercomputers. The computers then sifted this telecommunications content for key words and phrases. If such words were found, Echelon would then “flag” the communication for further scrutiny by a human analyst. The full scope of the program is unknown outside of the NSA, but press reports indicate that the program might have extended to both foreign and domestic communications.

“Echelon:  A Clinton-era surveillance program …”

“Terrorist Surveillance Program”: Bush administration parlance for the warrantless NSA eavesdropping program revealed by the New York Times. This program is alleged to have surveilled the communications of an unknown number of foreign terrorists. According to press reports, U.S. persons who were communicating with the alleged terrorists also had their communications monitored without a warrant. Such surveillance of U.S. persons is contrary to the FISA law, which specifies that wiretap approval from the FISA court is required in such instances.