Federal Bureau of Investigation—Improper Searches

According to the Washington Post, the FBI is expected to disclose a number of improper surveillance operations that have become more common since September 11, 2001.^[1] The disclosure is mandated by a Freedom of Information Act [hereinafter FOIA] request filed by the Electronic Privacy Information Center [hereinafter EPIC].^[2]

In one improper case, FBI agents kept a target under surveillance for at least five years, including a 15-month period of time in which Department of Justice [hereinafter DOJ] lawyers were not notified that the target had moved from New York to Detroit.^[3] A self-conducted investigation into the oversight concluded that the failure to notify DOJ authorities “was a violation of Justice guidelines and prevented the department ‘from exercising its responsibility for oversight and approval of an ongoing foreign counterintelligence investigation of a U.S. person.”^[4]

In other instances, agents obtained e-mails after their warrant for the communications had expired, seized bank records without proper authority, and conducted an “improper ‘unconsented physical search,’ according to the documents.”^[5]

EPIC understandably feels that the documents “might be the tip of the iceberg at the FBI and across the intelligence community. … It indicates that the existing mechanisms do not appear adequate to prevent abuses or to ensure the public that abuses that are identified are treated seriously and remedied.”^[6] The advocacy group feels that the information in the documents “underscore the need for greater congressional oversight of clandestine surveillance within the United States.”^[7]

The FBI, of course, downplays the information, which has been heavily redacted for public consumption. It claims that there were no major violations involved during the surveillance, and that most of the mistakes were administrative in nature.^[8] The FBI also claims that any information obtained from the improper searches is “quarantined and eventually destroyed.”^[9]

The documents that comprise the FOIA request pertain to 13 cases from 2002 to 2004 which had been referred to the Intelligence Oversight Board [hereinafter IOB], which is charged with examining violations of the laws and directives concerning clandestine surveillance.^[10] However, far from being a minor problem in only a few situations, the case numbers on the documents “indicate that a minimum of 287 potential violations were identified by the FBI during those three years,” and FBI officials have refused to say how many violations they have actually identified and referred to the IOB.^[11]

Most of the cases involve powers granted under the rather controversial Foreign Intelligence Surveillance Act [hereinafter FISA], which creates the framework under which secret warrants are obtained and wiretaps are installed.^[12] The number of FISA surveillance applications that have been approved has skyrocketed in the past five years. In 1999, 880 applications were approved; in 2004, 1754 were approved.^[13]

FISA was passed in 1978 and originally covered only eavesdropping and wiretaps. However in 1994, it was amended to permit covert physical entries, and in 1998, it was amended to permit pen/trap orders. Finally, in 2001, it was amended by the USA PATRIOT Act.^[14]

Electronic Surveillance Conducted Under FISA
Under the current rubric, “the President, through the Attorney General, may authorize electronic surveillance without a court order … to acquire foreign intelligence information for periods of up to one year,”^[15] as long as the Attorney General certifies in writing under oath that

• the electronic surveillance is solely directed at
  
  • the acquisition of the contents of communications transmitted by means of communications transmitted by means of communications used exclusively between or among foreign powers;^[16] or
  • the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power;^[17]
• there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a Untied States person is a party;^[18] and
• there will be steps taken to meet the required minimization procedures.^[19]

This statute puts an enormous amount of power in the hands of the Attorney General.^[20] In the event that a court order is sought, it will be authorized “if the President has, by written authorization, empowered the [Attorney] General to approve application to the court having jurisdiction … and a judge to whom an application is made may … grant an order … approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information.”^[21] Unless the surveillance may involve the acquisition of communications of any US person, the court will not have jurisdiction to grant any order approving electronic surveillance which is solely directed at obtaining the contents of communications sent by means of communications used exclusively by foreign powers, or is technical intelligence, other than the spoken communication of individuals, obtained from the property or premises under the exclusive control of a foreign power.^[22]

The judges that make up a FISA court are selected by the Chief Justice of the United States.^[23] He must publicly designate 11 district court judges from 7 of the US judicial circuits, and no fewer than 3 must reside within 20 miles of the District of Columbia, and these judges will constitute a court “which shall have jurisdiction to hear applications for and grant orders approving electronic surveillance anywhere within the United States.^[24] No designated judge can hear the same application for electronic surveillance if the application has been denied previously by another designated judge.^[25] This safeguard is perhaps illusory since in the 26 years since the passage of FISA, only 4 applications have been refused.^[26] In any event, if a judge denies an application, he must immediately provide for the record a written statement of each reason for his decision, and on motion of the United States, the record shall be sealed and transmitted to the court of review.^[27]

The court of review is likewise staffed by the Chief Justice of the United States, who must publicly designate 3 judges from the US district courts or courts of appeals to comprise a court of review which has jurisdiction to review the denial of any application for foreign surveillance.^[28] If the court of review determines that the application was properly denied, it must immediately provide for the record a written state of each reason for its decision, and on petition of the US for a write of certiorari, the record shall be sealed and sent to the Supreme Court of the United States, which shall have jurisdiction to review such a decision.^[29]

The application for a surveillance order must include

• the identity of the Federal officer making the application;^[30]
• the authority conferred on the Attorney General by the President and the approval of the Attorney General to make the application;^[31]
• the identity, if know, or a description of the target of the electronic surveillance;^[32]
• a statement of the facts and circumstances relied upon by the applicant to justify his belief that
  
  • the target of the electronic surveillance is a foreign power or an agent of a foreign power;^[33] and
  • 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;^[34]
• a statement of the proposed minimization procedures;^[35]
• a detailed description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance;^[36]
• a certification by the Assistant to the President for National Security Affairs or an executive branch official designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate
  
  • that the certifying official deems the information sought to be foreign intelligence information;^[37]
  • that a significant purpose of the surveillance is to obtain foreign intelligence information;^[38]
  • that such information cannot reasonably be obtained by normal investigative techniques;^[39]
  • that designate the type of foreign intelligence information being sought according to categories;^[40] and
  • including a statement of the basis for the certification that—
    
    • the information sought is the type of foreign intelligence information designated;^[41] and
    • such information cannot reasonably be obtained by normal investigative techniques;^[42]
  • a statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance;^[43]
  • a statement of the facts concerning all previous applications that have been made to any judge involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application;^[44]
  • a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the intelligence gathering is such that the approval of the use of electronic surveillance should not automatically terminate when the described type of information has been first obtained, a description of facts supporting the belief that additional information of the same type will be obtained thereafter;^[45] and
  • whenever more than one electronic, mechanical or other surveillance device is to be used with respect to a particular proposed electronic surveillance, the coverage of the devices involved and what minimization procedures apply to information acquired by each device.^[46]

Information gained from electronic surveillance under FISA that concerns any US person may be used and disclosed by Federal officers and employees without the consent of the US person, but only in accordance with minimization procedures.^[47] No information gathered in this manner may be used or disclosed by Federal officers or employees except for lawful purposes.^[48] If any State or political subdivision thereof intends to use the information as evidence in any trial, hearing or other proceeding, that person shall be notified that the information will be used.^[49] Such evidence can be suppressed if the US district court determines that the surveillance was not lawfully authorized or conducted.^[50]

Physical Searches Conducted Under FISA
FISA also authorizes physical searches to be conducted. The “President, acting through the Attorney General, may authorize physical searches without a court order to acquire foreign intelligence information for periods of up to one year” if the Attorney General certifies in writing under oath that

• the physical search is solely directed at premises, information, material, or property used exclusively by, or under the open and exclusive control of, a foreign power;^[51]
• there is no substantial likelihood that the physical search will involve the premises, information, material, or property of a US person;^[52] and
• there will be proper minimization procedures implemented.^[53]

The Attorney General has a rather large degree of power in determining the rules under which physical searches will be implemented,^[54] and he can order landlords to

• furnish all information, facilities, or assistance necessary to accomplish the physical search in such a manner as will protect its secrecy and produce a minimum of interference with the landlord’s services; ^[55] and
• maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the search or the aid furnished that such person wishes to retain.^[56]

The courts discussed above will hear all applications and the courts of review will determine whether any denials of applications were properly denied.^[57]

The application for a physical search must include

• the identity of the Federal officer making the application;^[58]
• the authority conferred on the Attorney General by the President and the approval of the Attorney General to make the application;^[59]
• the identity, if known, or a description of the target of the search, and a detailed description of the premises or property to be searched and of the information, material, or property to be seized, reproduced, or altered;^[60]
• a statement of the facts and circumstances relied upon by the applicant to justify the applicant's belief that--
  
  • the target of the physical search is a foreign power or an agent of a foreign power;^[61]
  • the premises or property to be searched contains foreign intelligence information;^[62] and
  • the premises or property to be searched is owned, used, possessed by, or is in transit to or from a foreign power or an agent of a foreign power;^[63]
• a statement of the proposed minimization procedures;^[64]
• a statement of the nature of the foreign intelligence sought and the manner in which the physical search is to be conducted;^[65]
• a certification or certifications by the Assistant to the President for National Security Affairs or an executive branch official or officials designated by the President from among those executive branch officers employed in the area of national security or defense and appointed by the President, by and with the advice and consent of the Senate--
  
  • that the certifying official deems the information sought to be foreign intelligence information;^[66]
  • that a significant purpose of the search is to obtain foreign intelligence information;^[67]
  • that such information cannot reasonably be obtained by normal investigative techniques;^[68]
  • that designates the type of foreign intelligence information by the proper category;^[69] and
  • includes a statement explaining the basis for the certifications;^[70]
• where the physical search involves a search of the residence of a United States person, the Attorney General shall state what investigative techniques have previously been utilized to obtain the foreign intelligence information concerned and the degree to which these techniques resulted in acquiring such information;^[71] and
• a statement of the facts concerning all previous applications that have been made to any judge involving any of the persons, premises, or property specified in the application, and the action taken on each previous application.^[72]

FISA and the USA PATRIOT Act
The USA PATRIOT Act [hereinafter Act] made a number of changes to the then-existing FISA framework. Prior to 2002, there was a presumption by a number of courts as well as the DOJ that intelligence that was gathered under FISA could not be shared with other agencies and could not be used in criminal investigations. However, a case before the court of review determined that the USA PATRIOT Act allows the use of FISA surveillance in criminal investigations, and that there is no “wall” between surveillance acquisition and investigations. Prior to the Act’s passage, language in the requirements for a FISA application read that “the purpose” of the surveillance was to gather foreign intelligence, rather than that “a significant purpose,” as it now reads, of the surveillance was to gather foreign intelligence.^[73] Furthermore, it added the ability for those who acquire foreign intelligence information to consult with other Federal law enforcement officers.^[74] In short, “[t]here is simply no question … that Congress was keenly aware that [changing the language to ‘a significant purpose’] relaxed a requirement that the government show that its primary purpose was other than criminal prosecution.”^[75] Furthermore, statements on the floor of Congress showed that this was intended. “This bill … breaks down traditional barriers between law enforcement and foreign intelligence. This is not done just to combat international terrorism, but for any criminal investigation that overlaps a broad definition of ‘foreign intelligence.’”^[76]

FISA, USA PATRIOT Act, and the Future
Many of the Act’s provisions are set to expire at the end of this year. The two houses of Congress have already created competing versions of the reauthorization legislation that will renew the Act, and they are currently in committee attempting to iron out some minor differences. For both the House and the Senate, most of the provisions that were set to expire on December 31 will become permanent. Information sharing between agencies will be become permanent, but the House would require notification about which agencies will be using the information to the court authorizing the surveillance.^[77] Both forms of the legislation make permanent the change of language from “the purpose” to “a significant purpose.”^[78]

We have also previously discussed the USA PATRIOT Act here.

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[1] Dan Eggen, FBI Papers Indicate Intelligence Violations, Wash. Post, Oct. 24, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] See EPIC, EPIC: FISA Orders 1979-2004, epic.org, Apr. 28, 2005, available here [hereinafter FISA orders].
[14] See EPIC, EPIC Archive—Foreign Intelligence Surveillance Act, epic.org, May 9, 2005, available here.
[15] 50 U.S.C. § 1802(a)(1).
[16] Id. § 1802(a)(1)(A)(i).
[17] Id. § 1802(a)(1)(A)(ii).
[18] Id. § 1802(a)(1)(B).
[19] Id. § 1802(a)(1)(C).
[20] See id. § 1802(a)(2).
[21] Id. § 1802(b).
[22] Id.
[23] Id. § 1803(a).
[24] Id.
[25] Id.
[26] See FISA orders, supra note 13.
[27] 50 U.S.C. § 1803(a).
[28] Id. § 1803(b).
[29] Id.
[30] Id. § 1804(a)(1).
[31] Id. § 1804(a)(2).
[32] Id. § 1804(a)(3).
[33] Id. § 1804(a)(4)(A).
[34] Id. § 1804(a)(4)(B).
[35] Id. § 1804(a)(5).
[36] Id. § 1804(a)(6).
[37] Id. § 1804(a)(7)(A).
[38] Id. § 1804(a)(7)(B).
[39] Id. § 1804(a)(7)(C).
[40] Id. § 1804(a)(7)(D).
[41] Id. § 1804(a)(7)(E)(i).
[42] Id, § 1804(a)(7)(E)(ii).
[43] Id. § 1804(a)(8).
[44] Id. § 1804(a)(9).
[45] Id. § 1804(a)(10).
[46] Id. § 1804(a)(11).
[47]Id. § 1806(a).
[48] Id.
[49] Id. § 1806(d).
[50] Id. § 1806(g).
[51] Id. § 1822(a)(1)(A)(i).
[52] Id. § 1822(a)(1)(A)(ii).
[53] Id. § 1822(a)(1)(A)(iii).
[54] Id. § 1822(a)(1)(B).
[55] Id. § 1822(a)(4)(A)(i).
[56] Id. § 1822(a)(4)(A)(ii).
[57] Id. §§ 1822(c) & (d).
[58] Id. § 1823(a)(1).
[59] Id. § 1823(a)(2).
[60] Id. § 1823(a)(3).
[61] Id. § 1823(a)(4)(A).
[62] Id. § 1823(a)(4)(B).
[63] Id. § 1823(a)(4)(C).
[64] Id. § 1823(a)(5).
[65] Id. § 1823(a)(6).
[66] Id. § 1823(a)(7)(A).
[67] Id. § 1823(a)(7)(B).
[68] Id. § 1823(a)(7)(C).
[69] Id. § 1823(a)(7)(D).
[70] Id. § 1823(a)(7)(E).
[71] Id. § 1823(a)(8).
[72] Id. § 1823(a)(9).
[73] See In re Sealed Case No. 02-001, 310 F.3d 717, 728-29 (D.C. Cir. 2002) (PDF).
[74] Id. at 729.
[75] Id. at 732.
[76] Id. (citing 147 Cong. Rec. S10992 (Oct. 25, 2001) (statement of Sen. Leahy)).
[77] H.R. 3199 § 102.
[78] See id.; S. 1389 § 9.