Surveillance Power: Expanding the Scope of the Government?s Surveillance Power

One of the primary and most controversial features of the USA PATRIOT Act is its expansion of the government’s ability to conduct surveillance. Critics of the Act often focus their complaints about potential civil liberty infringements on these provisions of the Act, most of which are found Title II.  

The United States has had a statutory system authorizing counter-intelligence surveillance since 1978, when the Congress enacted the Foreign Intelligence Security Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783 (codified as amended at 50 U.S.C. ??1801-1811 (2000)) [hereinafter FISA]. FISA provides authority to conduct surveillance targeting "agents of a foreign power." That term refers in the first instance to agents of foreign states, but has been understood by the courts as broad enough term to encompass agents of non-state entities such as Al Qaeda. See United States v. Bin Laden, 126 F. Supp. 2d 264, 277 (S.D.N.Y. 2000) (accepting that Al Qaeda is properly designated as a foreign power for FISA purposes); see also In re Terrorist Attacks on Sept. 11, 2001, 349 F. Supp. 2d 765 (S.D.N.Y. 2005) (providing examples of when defendants will be held responsible for their relations to Al Qaeda).

FISA was designed to enhance the government’s ability to investigate the potentially dangerous activities of foreign powers by authorizing different types of surveillance in the context of such investigations. It resulted from a compromise between the Congress and the President in the wake of United States v. United States District Court (Keith), 407 U.S. 297 (1972).  In Keith, the government argued that the president’s responsibility to protect the national security justified warrantless surveillance of groups suspected of acts of violence, including the destruction of government property.  This was a case of domestic terrorism, with no allegations of connections to foreign powers.  The Supreme Court did not accept the government’s argument, but specifically noted that the “case requires no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.”  407 U.S. 297, 308 (1972).  Keith invited creation of a statutory structure for surveillance of agents of foreign powers under terms distinct from those that govern ordinary domestic law enforcement.  FISA was the eventual result.

FISA authorized surveillance against a "United States person" if the purpose of such surveillance was to collect foreign intelligence information. A United States person was defined as "a citizen of the United States, an alien lawfully admitted for permanent residence, an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power." 50 U.S.C. ? 1801(i). "Agents of a foreign power" can thus be U.S. nationals, but the requirements for surveillance of them are more demanding than are those governing surveillance of foreigners. FISA contains "minimization procedures" to reduce the chance that persons not covered by the Act will be subjected to surveillance under it.

In contrast, law enforcement surveillance unrelated to foreign intelligence gathering is governed by Title III of the Omnibus Crime Control and Safe Streets Act of 1968 18 U.S.C. ? 2511(1968) [hereinafter Title III]. In Title III, Congress codified a general prohibition on eavesdropping (in wire, oral, or electronic communications) in recognition of the importance of certain civil liberty protections in the context of domestic law enforcement. It did however carve out an exception to this protection by giving authorities processes for obtaining a court order authorizing electronic surveillance when approved by a senior Department of Justice official.

The USA PATRIOT Act alters the landscape of authorization for surveillance. It alters the statutory language defining the purpose requirement of FISA, changing it from foreign intelligence gathering as "the purpose" to foreign intelligence gathering as "a significant purpose." In doing so, it expands the situations under which the FISA authority can be used to conduct surveillance. Potentially, situations previously authorized only under the more restrictive Title III powers might now be reachable under the FISA power. In addition, the Act also increases the tools available to the government to conduct surveillance under this FISA authority, further broadening the potential reach of the government's surveillance activities.

The judicial decisions and other materials relating to FISA that follow are organized primarily by the type of communications or information sought. The USA PATRIOT Act affects the government’s ability to access an individual’s communications or records in six main ways.

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Cases

• In re Terrorist Attacks on Sept. 11, 2001, 349 F. Supp. 2d 765 (S.D.N.Y. 2005)
• United States v. Bin Laden, 126 F. Supp. 2d 264 (S.D.N.Y. 2000)
• United States v. United States District Court (Keith), 407 U.S. 297 (1972)