Security and Privacy
   
Response to Sept. 11, 2001 Terrorist Attacks
 

[CDT received the following fax, sent to Capitol Hill by the Justice Department on or before November 20, proposing changes to FISA in the Intelligence authorization bill]

  1. Repealing Unwarranted Limits on FISA Coverage

    This amendment would fill a gap that has become increasingly apparent since September 11th. The necessity under the Foreign Intelligence Surveillance Act ("FISA") to link a potential surveillance target with a group or a foreign state limits the ability of the President to use this statute against, for example, hijackers or other terrorists without affiliation or known affiliation with a specific group or foreign state. We are not aware of any benefit from limiting FISA in this respect.

    We suggest the following legislative language:

    Section 101(a)(4) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(a)(4)) is amended to read as follows (new language in underline):
    "(4) a foreign individual or a group engaged in international terrorist or activities in preparation therefor;"

  2. Multipoint Wiretaps

    The multipoint wiretap amendment to FISA in the USA PATRIOT Act (section 206) allows the FISA court to issue generic orders of assistance to any communications provider or similar person, instead of to a particular communications provider. This change permits the Government to implement new surveillance immediately if the FISA target changes providers in an effort to thwart surveillance. The amendment was directed at persons who, for example, attempt to defeat surveillance by changing wireless telephone providers or using pay phones.

    Currently, FISA requires the court to "specify" the "nature and location of each of the facilities or places at which the electronic surveillance will be directed." 50 U.S.C. � 1805(c)(1)(B). Obviously, in certain situations under current law, such a specification is limited. For example, a wireless phone has no fixed location and electronic mail may be accessed from any number of locations. The same pragmatic approach should, under current law, be applied to multipoint wiretaps.

    To avoid any ambiguity and clarify Congress' intent, we propose adding the phrase ", if known," to the end of 50 U.S.C. � 1805(c)(1)(B). The "if known" language, which follows the model of 50 U.S.C. � 1805(c)(1)(A), is designed to avoid any uncertainty about the kind of specification required in a multipoint wiretap case, where the facility to be monitored is typically not known in advance.

  3. Extension of Time to Seek FISA Ratification of Attorney General-authorized Searches

    Under current law, the Attorney General may authorize electronic surveillance or a search without a court order only when he concludes, first, that the factual basis for granting such an order exists and, second, that an emergency exists requiring action before a court order may be obtained. 50 U.S.C. �� 1805(f), 1824(e). Current law requires the Government to prepare a complete FISA application and present it to the FISA court for approval within 24 hours "after the Attorney General authorizes" the surveillance or search. Ibid. Failure to do so results in the suppression of information obtained from the surveillance or search. Ibid.

    Given the length and complexity of many FISA applications, the need to verify the accuracy of each FISA declaration by review in the field, the requirement that the Government obtain both a written certification from the director of the FBI (or a similar official) and the written approval of the Attorney General, it often is extremely difficult to meet the 24-hour deadline. This is especially true where � as often will be the case � the emergency authorization comes in the midst of a larger emergency requiring the personal attention of the Attorney General and the Director of the FBI. The emergency authorization provision for title III wiretaps, 18 U.S.C. � 2518(7), sets a deadline of 48-hours , and starts the 48-hour clock not at the time of authorization, but only once the interception "has occurred, or begins to occur."

    The proposal is to extend the time for judicial ratification of an emergency FISA surveillance or search from 24 to 72 hours. That would give the Government adequate time to assemble an application without requiring extreme measures. The additional 24 hours for FISA applications is appropriate given the complexity of FISA applications and the need for higher-level approval under FISA than under title III. Moreover, the additional time is also appropriate given that the clock starts ticking under FISA when the Attorney General authorizes the surveillance or search, rather than when the surveillance or search actually occurs, as is the case under title III.

    We recommend the following legislative language:

    (a) Section 105(f) of the Foreign Intelligence Surveillance Act (50 U.S.C. � 1805(f)) is amended as follows by replacing "twenty-four hours" in each of the places it appears with "seventy-two hours".
    (b) Section 304(E) of the Foreign Intelligence Surveillance Act (50 U.S.C. � 1824(e)) is amended as follows by replacing "24 hours" in each of the places it appears with "seventy-two hours".
    (c) Section 101(h)(4) of the Foreign Intelligence Surveillance Act (50 U.S.C. � 1801(h)(4)) is amended by replacing "twenty-four hours" with "seventy-two hours".
    (d) Section 301(4)(d) of the Foreign Intelligence Surveillance Act (50 U.S.C. � 1821(4)(d)) is amended by replacing "24 hours" with "seventy-two hours".

  4. Non-conformity of FISA Subsections 501(a)(1) and 501(b)(2)

    Section 215 of the USA Patriot Act of 2001 amended title V of the FISA, adding a new section 501. Section 501(a)(1) now authorizes the director of the FBI to apply for a court order to produce certain records "for an investigation to protect against international terrorism or clandestine intelligence activities". Section 501(b)(2) directs that the application for these records specify that the purpose of the application is to "obtain foreign intelligence information not concerning a United States person". However, section 501(a)(1), which generally authorizes such applications, does not contain equivalent language. Thus, subsections (a)(1) and (b)(2) now appear inconsistent.

    We recommend adding the phrase "to obtain foreign intelligence information not concerning a United States person or" to section 501(a)(1). This would make the language of section 501(a)(1) consistent with the legislative history of section 215 of the USA PATRIOT Act (see 147 CONG. REC. S11006 (daily cd. Oct. 25, 2001) (sectional analysis)) and with the language of section 214 of the USA PATRIOT Act (authorizing an application for an order to use pen registers and trap and trace devices to "obtain foreign intelligence information not concerning a United States person").

    We recommend the following legislative language:

    Section 501(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. � 1861(a)(1)), is amended by inserting "to obtain foreign intelligence information not concerning a United States person" after the word "investigation".

  5. Other Technical Amendments

    We note several drafting problems in the text of the USA PATRIOT Act. First, section 207(b)(1) refers to section 105(d)(2) instead of section 105(e)(2) and to 50 U.S.C. � 1805(d)(2) instead of 50 U.S.C. � 1805(e)(2). Second, section 215 (creating new section 502 of FISA) refers to "section 402" instead of "section 501" in the last line of new section 502(a) and in the last line of new section 502(b)(1). Third, section 225 adds a new subsection (h) immediately following 50 U.S.C. � 1805(g), but it should add a new subsection (i) immediately following 50 U.S.C. � 1805(h).

    Fourth, the title of section 225 is "Immunity for Compliance with FISA Wiretap" and it is an amendment to 50 U.S.C. � 1805, both of which suggest that it applies only to electronic surveillance and not to physical searches or other activity authorized by FISA. However, the text of section 225 refers to court orders and requests for emergency assistance "under this Act," which suggests that it applies to physical searches (and pen-trap requests � for which there already exists an immunity provision, 50 U.S.C. � 1842(f) � and subpoenas) as well as to electronic surveillance. We suggest that Congress make clear whether section 225 of the USA PATRIOT Act applies only to electronic surveillance, or also to other FISA activities.