Chapter 19 - Congressional Authority for National Security Surveillance

Smith v. Maryland United States Supreme Court, 442 U.S. 735 (1979)

What is a pen-register and why did the police use them?

Are the customers of the phone company aware that this information was being collected by the phone company?

How is a pen register different from a Katz wiretap?

Why isn't the installation of the pen-register a search?

What is the search?

What did the court say about the defendant's expectation of privacy?

What does the court tell us about financial records?

Why is the dissent concerned about basing the 4th amendment on reasonable expectations of privacy?

Has the court adopted the dissent view over time?

How did this play out in email?

Pen-register law

What sort of warrant requirement did Congress enact?

What did the Patriot Act authorize for the email and the internet?

When was FISA passed?

What abuses in the Church Report drove the passage of FISA?

How about the concentration camp list?

United States v. Duggan United States Court of Appeals, 743 F.2d 59 (1984)

What organization were the defendants part of?

What were they objecting to?

Who does FISA apply to?

Are defendants agents of Ireland?

What part of the definition of foreign power in FISA covers defendants?

How does this expand the traditional notion of a foreign power as a state?

How big does a group have to be to be a FISA foreign power?

What is a united states person?

What is the relevant definition of foreign intelligence?

What is the definition of international terrorism?

How does this definition try to differentiate ordinary crime?

What must the government show to get a FISA warrant?

What else must the government do if the target is a United States person?

What must the judge find that there is probable cause to support?

What additional finding must the judge make if the target is a US person?

What does this implicitly tell you about the review standard for non-US persons?

How does this differ from the requirements for a criminal law warrant?

Core question - Does FISA delineate 4th Amendment standards for foreign intelligence, or does FISA establish the standards for deciding that intelligence is outside the scope of the 4th amendment?

What did Congress think it was doing?

Given what we now know about the application of the constitution to foreigners outside of the US, if the judge finds that the intelligence is directed at foreigners outside the US, does the government need FISA at all?

In that situation, what is the role of FISA?

Where is FISA necessary?

What did the judge hold about the FISA balancing of 4th amendment protections and the need to do foreign intelligence?

What about defendant's claims that foreign terrorism does not implicate US national security interests?

Why does this not really matter if all of the intelligence gathering is done outside the US on foreign nationals?

How does the legislative history indicate that the appeals court should review the findings of the FISA judge?

Does this look like classic agency deference, rather than the review of a criminal law warrant?

What did the Senate report say about the overlap between foreign intelligence and criminal investigations?

What are terrorists usually prosecuted for?

What is the real problem that the primary purpose doctrine addresses?

When may the judge disclose supporting documents for the FISA warrant to the defense?

What is the standard for disclosing documents to the defense in the ordinary criminal proceedings?


What types of electronic surveillance does FISA contemplate?

What are the geographic limits of FISA?

Which section would allow video surveillance?

How was the pen register language modified after 9/11 to include email?

What else might this allow the feds to collect?

How might an automatic out of office message get you in trouble under this law?

How could you combine spam and terrorist hacking?

How was FISA amended to include physical searches?

What are the limits on a physical search?

Why are different procedures used than for criminal searches?

What is the "lone wolf provision" - 50 U.S.C. §1801(b)(1)(C)?

What does the "lone wolf provision" do to the notion of an agency of a foreign power?

How is the FISA court selected?

What is the FISA appeals court?

Does the United States Supreme Court have jurisdiction over FISA appeals?

Why was FISA amended to require the Attorney General personally to review and to justify in writing any decision not to approve an application for a FISA order?

What is the problem with doing quality control on FISA requests?

How was the basis for probable cause under FISA expanded in 2000?

How does this broaden FISA?

What does it mean for Jerry Adams?

What is the emergency exception for FISA?

In re: Sealed Case No. 02-001, 02-002 (Foreign Intelligence Surveillance Court of Review) 310 F.3d 717 (2002)

What did the FISA court order to limit the use of FISA warrants for criminal law investigation?

What is the‘‘chaperone requirement’’in this case?

What if representatives of OIPR are unable to attend such meetings?

What is the "wall" that the FISA court assumed existed?

Where did the court find the authority to enforce this wall?

Despite the statutory language, what is the 4th amendment problem if FISA can wrap around criminal investigations?

Would this matter if the intelligence was not used for a criminal prosecution?

Why does the court say that United States v. Truong Dinh Hung does not apply to FISA?

How did the 1995 the Attorney General adopted ‘‘Procedures for Contacts Between the FBI and the Criminal Division Concerning Foreign Intelligence and Foreign Counterintelligence Investigations" enshrine Truong Dinh Hung?

What provision did the Patriot Act add to encourage the cooperation the FISA court was trying to discourage?

How did the 2002 Procedures for Contacts... supersede prior procedures?

Did the FISA court accept the 2002 revisions?

What are the purpose of minimization procedures?

What do the minimization procedures allow as regard ordinary crimes?

What is the constitutional issue with the FISA court refusing to implement the 2002 guidelines?

How did the Patriot Act modify the purpose of FISA surveillance?

How does this implicitly do away with the primary purpose test?

What is the purpose is solely criminal investigation?

Will any defendant ever prove this?  Why not?

Whose has the responsibility for reviewing the government purpose?

What did the court in Keith say about Title III warrant procedures for a domestic national security investigation?

What is the false premise of Truong?

How does the court distinguish City of Indianapolis v. Edmond, 531 U.S. 32 (2000) from Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990), and United States v. Martinez-Fuerte, 428 U.S. 543 (1976)?

How did the court rule?

NSA screening of international and domestic phone calls - how would you analyze this?

What are the impediments to getting FISA warrants for this screening?

Is pattern matching on electronic communications "reading the content"?

Is there any way to allow such screening and prevent abuse?