An overview of the FISA statute and the post-9/11 legislative reforms enacted to the nation's surveillance programs.

1. Joseph Moreno
Colleen Kukowski
December 9, 2014

2. Joseph Moreno is a special counsel in Cadwalader's White Collar Defense and
InvestigationsGroup. He formerly served as a federal prosecutor with the United
States Department of Justice in the National Security Division, where he
investigated and prosecuted international money laundering, structuring, and
terrorist financing cases. A United StatesArmy veteran of Operations Enduring
Freedom and Iraqi Freedom, Joseph was recently appointed a consultant to the
FBI where he served on the staff of the 9/11 Review Commission, assisting in its
evaluation of the FBI’s performance in addressing the threat of domestic and
international terrorism. Joseph earned his JD/MBA from St John’s University
School of Law and his BA in Political Science from Stony Brook University.
Colleen Depman Kukowski is an associate inCadwalader's White Collar
Defense and InvestigationsGroup, where she represents clients before the
United States Department of Justice, the Securities and Exchange Commission,
and international law enforcement authorities. Colleen formerly served in the
Counterterrorism Division of the Federal Bureau of Investigation, supporting
high priority terrorism investigations and working extensively with Foreign
Intelligence SurveillanceAct surveillance. Colleen received her JD from the
University ofVirginia School of Law, and earned her BA in English and History,
summa cum laude, from Loyola University in Maryland.

3.  Overview of FISA statute
 Post-9/11 legislative reforms
 Revelations exposed by Edward Snowden
 Scope of exposed surveillance programs
 Current legal challenges
 Q&A

4.  Prior to 1978, warrantless electronic surveillance to
collect foreign intelligence was authorized by the
President and the Attorney General
 The legal basis derived from the President’s
Constitutional authority to conduct foreign affairs and
protect the national security
 To the degree it was challenged, courts generally
recognized a national security exception to the Fourth
Amendment for foreign intelligence gathering
 Courts remained wary of domestic surveillance with no
evidence of a foreign power (“Keith” case)

5.  In 1975-76, the ChurchCommittee uncovered widespread
abuses of the government’s surveillance powers:
 Warrantless wiretapping by President Kennedy of public
figures including Martin Luther King, Jr. and Jimmy Hoffa
 Watergate-era use of the CIA by President Nixon to spy
on political enemies
 Infiltration of civil right and anti-war groups by Army
Intelligence assets
 Suppression of domestic political dissent by the FBI
under the guise of national security

6.  In 1978, the Foreign Intelligence Surveillance Act (FISA)
was enacted to provide a framework for obtaining foreign
intelligence
 The targeted entity must be a foreign power or an
agent of a foreign power
 The purpose of the surveillance must be to obtain
foreign intelligence information
 The statute provides not only for electronic surveillance,
but also for physical searches, pen registers, and trap
and trace devices

7.  “Foreign power” includes:
 Foreign government or
component thereof
 Entity controlled by a
foreign government (e.g.,
political organization)
 ForeignTerrorist Organization (FTO) designated by
DOJ/Treasury (e.g., Al-Qaeda, Al-Shabaab, Hamas,
Hezbollah, ISIS, AUC, FARC, Real IRA)
 Specially Designated GlobalTerrorist (SDGT) designated
byTreasury/OFAC

8.  “Agent of a foreign power”
includes:
 Non-US Persons who act
in the United States on
behalf of a foreign power
 US Persons who engage
in international terrorism
activities or secretly
gather intelligence for a
foreign power

9. In May 2014, Chief Justice John
Roberts appointed Senior District
JudgeThomas Hogan as FISC
Presiding Judge. The presiding judge
assigns FISA warrant applications to
the sitting FISC judges.
 FISA created two new courts:
1) Foreign Intelligence Surveillance
Court (FISC) – Consists of 11
district court judges appointed by
the Chief Justice; hears FISA
warrant applications presented
by the DOJ’s National Security
Division
2) Foreign Intelligence Surveillance
Court of Review (FISCR) – Hears
appeals in the event a FISC ruling
is challenged

10.  The standard of review for obtaining a FISA warrant is
different than that of a criminal (Title III) wiretap:
 Title III of the Crime ControlAct requires a law
enforcement officer to submit a written application to a
District Court Judge (not a Magistrate)
 Must describe facts and circumstances showing a serious
crime has been, is being, or is about to be committed
 Standard for approval is probable cause that a crime
was, is, or will be committed, and location to be
monitored will be used to communicate about the crime
 Target must be notified within 90 days

11.  FISA surveillance requires a more comprehensive
application process:
 The Attorney General (via the Office of Intelligence)
submits a classified application to the FISC
 Standard for approval is probable cause to believe that
the target is a foreign power, and that the facilities
targeted will be used by that foreign power
 May authorize surveillance of a foreign power for one
year, and of an agent of a foreign power for 90 days
 Since 1979, nearly 34,000 warrant applications have
been submitted to the FISC; only 11 have been denied

12.  Criminal investigations
designed to collect evidence,
arrest suspects and secure
convictions
 Rely on human sources,
electronic surveillance (T-III),
physical searches (Rule 41),
and obtaining third party
records (subpoenas)
 Conducted by FBI, DEA, ATF,
Secret Service, and local law
enforcement

13.  Intelligence investigations
designed to detect and
disrupt foreign threats to US
national security
 Rely on human sources,
electronic surveillance and
covert physical searches
(FISA), and obtaining third
party records (NSLs)
 Conducted by FBI, CIA, NSA,
DoD, and others

14.  By the 1990s, a series of judicial decisions and internal
DOJ procedures created a “wall” between criminal
investigators and intelligence collectors
 Purpose was to avoid the appearance that a foreign intel
investigation was becoming a criminal investigation
 While not completely barring coordination – the wall so
heavily regulated it that it effectively shut down
communications between law enforcement and intel
 It grew higher in 2000 when the FISC required FBI officials
to certify they understood the limitations of the wall –
resulting in a chilling effect even within the Bureau

15.  Following the 9/11 attacks, the USA PATRIOT Act was
approved with near unanimous vote in the Senate (98-1)
 Section 218 tore down the wall between law
enforcement, the intel community and the military
 Updated surveillance laws to reflect new technologies
and means of communications
 Added a number of new money laundering crimes
 Eliminated requirement that information sought by
NSL pertain to foreign power or agent of foreign power
 Enhanced penalties for terrorism-related crimes

16.  Section 215 added a “business records” provision:
 Permits the FBI to seek a court order directing the
production of records/documents when there are
reasonable grounds to believe the information sought
is relevant to an international terrorism investigation
 In the analogous contexts of civil discovery and criminal
investigations, “relevance” is a broad standard that
permits discovery of large volumes of data where doing
so is necessary to identify much smaller amounts of
information within that data

17.  FISA Amendments Act of 2008 added newTitleVII
 Section 702 allows for targeting of communications of
foreign persons located outside the US
 Grants telecoms immunity for cooperating with
intelligence collections
 Criticized for justifying NSA warrantless collection
programs of US persons under guise of foreign
surveillance
 Also permits surveillance of US persons located overseas
for up to one week without a warrant (previously 48 hrs)

18.  Executive Order 12333 issued
by President Reagan in 1981
(since amended)
 Formalized roles of various
players in the intelligence
community (CIA, FBI, DoD)
 Recently cited by NSA as
authority to retain US
communications collected
“incidentally” during course
of foreign intel investigation

19.  Beginning June 5, 2013,The Guardian
publishes a series of high-profile disclosures of
the vast collection of data obtained by the
National Security Agency and other
intelligence groups.
 On June 9, 2013, Edward Snowden, reveals
that he was the source of leaks to the
Guardian, as well as other major international
newspapers. Snowden was an employee of
the consulting firm Booz Allen Hamilton,
where he worked as a contractor for the NSA.
 On June 21, 2013, the United States charged
Snowden with espionage. Snowden currently
resides in Russia.

20.  Publication of a top-secret FISC order
againstVerizon Business Services,
mandating it to hand over the call
records for all of its customers
 Publication of a classified PowerPoint
presentation detailing NSA’s collection
of a wide range of digital information
from nine private Internet firms as part
of a program known as “PRISM”
 Publication of a list of world leaders
subject to surveillance efforts

21.  In response to Snowden’s allegations,
the Department of Justice and NSA
declassified several documents in
attempt , to explain the USG’s
surveillance efforts, including:
 Declassified (redacted) FISC order
 DOJWhite Paper on Section 215
 These documents illustrate how the
surveillance programs operate

22.  The collected information is limited to “telephony
metadata.” There was no recording of the content of
telephone calls
 It is not lawful for anyone to query the bulk telephony
metadata for any purpose other than counterterrorism –
FISC-imposed rules strictly limit any such queries.
 Under the FISC orders authorizing the collection, authorized
queries may only begin with an “identifier,” such as a
telephone number, that is associated with a foreign terrorist
organizations. An identifier used to commence a query of
the data is referred to as a “seed.”

23.  There must be a “reasonable, articulable suspicion” that a
seed identifier used to query the data for foreign intelligence
purposes is associated with a particular foreign terrorist
organization.
 When the seed identifier is reasonably believed to be used by
a U.S. person, the suspicion of an association with a
particular foreign terrorist organization cannot be based
solely on activities protected by the First Amendment.
 Under the FISC’s order, the NSA may also obtain information
concerning second and third-tier contacts of the identifier.
Based on this analysis of the data, the NSA then provides
leads to the FBI or others in the Intelligence Community. For
U.S. persons, these leads are limited to counterterrorism
investigations.

24.  President Obama appointed an
independent group of experts to
examine surveillance issues.
 President Obama restricted the
NSA to obtaining specific records
only with an order from the
Foreign Intelligence Surveillance
Court.
 “Two hops” instead of “three
hops”
 NSA created the new position of
Civil Liberties and Privacy Officer.
On January 17, 2014, President
Obama publicly addressed the
ongoing review of signals
intelligence and surveillance
programs.

25.  Plaintiffs, led by conservative activist
Larry Klayman, filed suit against the
government in the District of Columbia
in June 2013.
 Plaintiffs claimed that the government’s
telephony metadata collection under
Section 215 violated their rights under
the First, Fourth and Fifth
Amendments.
 In December 2013, Judge Richard J.
Leon ruled that the NSA program most
likely violates the Fourth Amendment.

26.  “I cannot imagine a more ‘indiscriminate’ and
‘arbitrary invasion’ than this systematic and high tech
collection and retention of personal data on virtually
every single citizen for purposes of querying and
analyzing it without prior judicial approval.”
 Judge Leon issues a temporary injunction, blocking the
NSA’s collection of phone records, but stayed the action
pending the government’s appeal
 Oral arguments were held in the D.C. Circuit Court of
Appeals in November.

27.  Key issues at oral
arguments:
 Do plaintiffs have standing?
 When does the “search”
occur?
 Does Smith v. Maryland
apply?
 Unusual in that two
amici were able to
present arguments as
well.

28.  The ACLU filed suit against the
government in the Southern District of
NewYork in June 2013.
 Plaintiff claimed that the government’s
telephony metadata collection under
Section 215 violated its rights under the
First and FourthAmendment.
 In December 2013, JudgeWilliam H.
Pauley III held that bulk telephony
metadata collection under Section 215
of the USA PATRIOT Act is lawful and
granted the government’s motion to
dismiss.

29.  Judge Pauley applies Smith v. Maryland
 “Clear precedent applies because Smith held that a subscriber
has no legitimate expectation of privacy in telephony metadata
created by third parties. …Telephones have far more versatility
now than when Smith was decided, but this case only concerns
their use as telephones.”
 Judge Pauley dismissed the ACLU’s First Amendment
argument and said that any alleged chilling effect on free
speech arises from a “speculative fear” resulting from a
“highly attenuated chain of possibilities.”
 The ACLU appealed, and oral arguments were held in
November 2014

30.  Plaintiff Smith, a nurse and mother
of two who lives in rural Idaho, filed
suit against the government over
the NSA’s telephony metadata
collection in the District of Idaho in
June 2013.
 Like Klayman and the ACLU, Smith
claimed the NSA program violated
her FourthAmendment rights.
 Chief Judge B. LynnWinmill granted
the government’s motion to dismiss
because Smith v. Maryland
controlled.
AnnaJ. Smith (pictured with her husband,
Peter) filed a suit in federal court in Idaho
against the government's surveillance
practices.

31.  Oral Arguments were held in the Ninth Circuit yesterday
(December 8, 2014)
 Setting the stage for a Supreme Court opinion?
 Chief JudgeWinmill referred to Judge Leon’s opinion,
which distinguished the telephony metadata collection
from the facts in Smith, as a “thoughtful and well-written
decision.”
 Chief JudgeWinmill invoked Justice Sotomayor’s
statement that Smith is “ill-suited to the digital age.”
U.S. v. Jones, 132 U.S. 945, 957 (2012).
 Appellate cases in the Second, Ninth and D.C. Circuits –
arguable the most powerful appellate courts in the
country – with potentially conflicting rulings.

32. Joseph Moreno
202.862.2262
joseph.moreno@cwt.com
Colleen Kukowski
202.862.2286
colleen.kukowski@cwt.com