DOJ Proposes Further Surveillance Expansion Changes to Intelligence Authorization Would Again Increase FISA Eavesdropping

CDT Preliminary Analysis � Nov. 30, 2001

Just one month after passage of a sweeping anti-terrorism law substantially expanding government eavesdropping authority, the Justice Department is asking for further expansions of that authority as part of the Intelligence authorization bill now before Congress. DOJ is proposing at least five amendments to the Foreign Intelligence Surveillance Act (FISA). As discussed below, these provisions would have a significant impact on civil liberties and would further expand government surveillance in the U.S. By proposing these changes in a closed-door appropriations conference, DOJ is once again bypassing the deliberative legislative process � the only process that can strike an appropriate balance respecting civil liberties.

Substantively, the proposed changes to FISA �

• Fundamentally expand FISA by including "individuals" in the definition of a "foreign power". This would allow FISA's substantial authorities -- intended for action against foreign powers ---- to now be brought to bear against individuals and anyone working as an agent with those individuals.
• Remove important limits in the scope of FISA wiretaps � multipoint "roving" wiretaps could now be issued without specifying the person, the location, or the facility to be tapped.
• Extend the time before a court must approve emergency orders � allowing DOJ to conduct surveillance up to 72 hours without appearing in a FISA court, and without real penalty if the order is later denied.
• Make it clear that broad access to records � including medical, financial, or other business records � would apply to "obtain foreign intelligence information not concerning a United States person."

Procedurally, the proposed changes are also a cause for concern because �

• They show that those in Congress who sought a deliberative process for the USA PATRIOT Act were right. The Act was drafted in such haste that the government already wants to amend it.
• These changes � particularly the first, fundamental change - might have been appropriate to raise in the context of a broader debate about the relevance of FISA in the post Cold War period, but are totally inappropriate as an out-of-scope addition by the conference.

Once again, DOJ seeks to make these changes in haste. Once again, it would bypass the legislative process by seeking changes in a closed-door conference on an important authorization bill. CDT urges Congress to reject these hasty expansions of surveillance authority in FISA, and to insist on a real legislative examination of the issues raised.

1. Reducing Limits on FISA Coverage

   The first proposed change would amend the definitions section of the Foreign Intelligence Surveillance Act (FISA) to say that a single person engaged in international terrorism is a foreign power. It basically allows the government to use against an individual the foreign policy and national security authorities that were designed for use against nation states.

   This changes the entire structure of FISA away from its Cold War origins. Whereas the purpose of intelligence is to link individuals together as part of a group, the proposed amendment says that an intelligence investigation can be conducted against one person.

   Taken along with the elimination of the requirement that FISA surveillance could be initiated only for the purpose of collecting foreign intelligence (the USA PATRIOT Act's elimination of the "primary purpose" standard), it further undermines the constitutional basis of FISA. Describing it as "repealing unwarranted limits on FISA coverage" � as the Justice Department does � is a serious mischaracterization. It is fundamentally changing the scope of FISA's coverage.

   The entire structure of FISA is based on the concept of foreign powers. Constitutionally, FISA is based on the premise that different rules apply to the conduct of foreign affairs and national defense. FISA is based on the historical notion that surveillance against foreign powers and agents of foreign powers should not be subject to the criminal standard or other due process protections, because the information obtained is not normally used in criminal cases and foreign powers are not normally subject to the processes of the criminal justice system.

   The definition of foreign powers has included international terrorist groups. Mary Lawton, a top Justice Department official who helped to craft FISA, once said that the addition of international terrorism to FISA was an afterthought. It seemed to fit when FISA was adopted in 1978, when terrorist groups took credit for their actions, had above ground presences, and claimed the desire to establish political and geographic power, where the concept off being a "member of the PLO" or a "member of the IRA" had some definitive meaning.

   The concept of foreign powers in FISA does not fit well with the current reality of shadowy terrorist groups that take no credit for their actions and have no above ground political presence. But the solution to that problem is not to call individuals foreign powers. The solution is to rely on the criminal law, which allows the wiretapping of individuals suspected of being involved in criminal activity.

   The net effect of this change is to fully eliminate the probable cause standard for wiretapping and secret physical searches. If this change were enacted, the government could initiate electronic surveillance against individuals in the US to collect information with limited foreign intelligence value, without having probable cause to believe that the person is engaged in illegal activity.

   The change has even broader implications when read in conjunction with the definition of "agent of foreign power." If an individual can be a foreign power, than an individual can have agents, who are also subject to wiretapping and secret physical searches, including any US citizen who engages in activities on behalf of a foreign power that "involve or may involve" a violation of the criminal law or who knowingly aids or abets any person who engages in clandestine intelligence gathering activities or activities in preparation for international terrorism on behalf of the person who is the foreign power. That means that a US citizen two steps removed from the foreign individual can be an agent of a foreign power, subject to FISA investigation.

2. Expansion of Multipoint Wiretaps

   The proposed changes to multipoint or "roving" wiretaps is a truly incredible expansion of eavesdropping authority. With this small change to the statutory language, a FISA order could be issued even if the government specified neither the identity of the person to be intercepted nor the nature or location of the communications system involved. Basically, the government could get a FISA order while saying "We don't know the identity of the person we want to wiretap or or whose house we want to bug. We don't know the phone line or cell phone account or the service provider. We don't know the house or apartment where the person we don't know will be and we don't know who will be there when we decide what house it is. However, we want an order nonetheless that allows us to go to any communication service provider, landlord or other person and compel them to cooperate with our surveillance request, when we figure out who or what it is that we want to wiretap or bug."

   This change highlights the misleading nature of the DOJ's justification for the roving tap change in the USA PATRIOT Act. Time and again, the Attorney General said he wanted to follow the terrorist not the communications device. Now, the government is pointing out that it wants to use the roving tap authority when it doesn't know who the terrorist is or what devices or locations are being used.

3. Extension of Time to Seek FISA Ratification [or Rejection] of Attorney General Authorized Searches

   This change would allow the Attorney General on his own to carry out FISA surveillance for up to 3 days before going to a FISA court, extending the time limit from 24 hours. The consequences of misusing this authority are minimal: The Attorney General must submit an application to the FISA court, but there are no consequences for the Attorney General if the Court denies the order. The subject of the surveillance is never notified even when the court turns down an order, and the government can disseminate and use any information collected against non-US persons for any purpose except as evidence in a hearing.

   The 24 hour time limit was established in 1978, before email and other modern word processing an communications technologies made the compilation of documents much easier.

   This change also relates to the physical search authority, meaning that the Attorney General could authorize multiple physical searches over a 72 hour period without judicial approval. The AG already has authority to authorize secret searches without judicial approval over a 24 hour period.

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

   This change raises a major issue in the USA PATRIOT Act. It makes it clear that the already broad access to records provision adopted in the USA PATRIOT Act -- giving the government authority to obtain any records from any business or other person upon the mere claim that the records are "sought for an authorized investigation" -- is not limited to investigations to protect against international terrorism or international terrorism. Rather, it also gives the government the ability to collect records whenever it is to "obtain foreign intelligence information not concerning a United States person."

   Note that the provision does not limit the collection of records to those pertaining only to non-US persons. Instead, the provision allows the collection of records on US citizens if the purpose is to obtain information not concerning a United States person. That seems to mean that the government can request an entire database containing million of records on US citizens if the database also includes information on non-US persons and the records are sought to "obtain foreign intelligence information not concerning a United States person."

   As worded, the amendment would appear to open the door for even broader access to the sensitive records � including financial, medical, library, or other business records � of millions of Americans.

For further information, please call Jim Dempsey, Alan Davidson, or Jerry Berman at the Center for Democracy and Technology, (202) 637-9800.