Programmatic Surveillance and FISA: of Needles in Haystacks

Texas Law Review

Volumn 88, Issue 7, 2010, Pages 1633-1667

  Banks, William C ^a  

^a SYRACUSE UNIVERSITY   (United States)

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EID: 77955343033     PISSN: 00404411     EISSN: None     Source Type: Journal    
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References (270)

1. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783 (codified as amended in scattered titles of U.S.C.).
2. Id. § 105(a) (codified at 50 U.S.C. § 1805(a)).
3. Intelligence Authorization Act for Fiscal Year 1995, Pub. L. No. 103-359, sec. 807, §§ 301- 309, 108 Stat. 3423, 3443-53 (codified as amended at 50 U.S.C. §§ 1821-1829).
4. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 6001(a), 118 Stat. 3638, 3742 (codified as amended at 50 U.S.C. § 1801(b)(1)(C)).
5. See FISA § 105(b)(2)(B) (requiring an order approving electronic surveillance to direct, at the applicant's request, a communication or other common carrier to assist an applicant in accomplishing the surveillance in a manner to protect its secrecy and minimize interference with the carrier's services).
6. Id. § 105(b)(1)(B) (requiring an application to identify the facilities where surveillance will be sought "if known").
7. See, e.g., Richard A. Posner, Op-Ed., A New Surveillance Act, WALL ST. J., Feb. 15, 2006, at A16 (arguing that FISA is "dangerously obsolete").
8. K.A. Taipale & James Jay Carafano, Op-Ed., Fixing Surveillance, WASH. TIMES, Jan. 25, 2006, at A15.
9. Judge Posner has claimed that FISA "remains usable for regulating the monitoring of communications of known terrorists, but it is useless for finding out who is a terrorist." Richard A. Posner, Privacy, Surveillance, and Law, 75 U. CHI. L. REV. 245, 252 (2008).
10. See William C. Banks, The Death of FISA, 91 MINN. L. REV. 1209, 1275-76 (2007) (observing that, in the world of technological surveillance, evasion and logistical difficulties force the government to continually play "catch-up").
11. Id.
12. See David S. Kris, Modernizing the Foreign Intelligence Surveillance Act: Progress to Date and Work Still to Come (noting that after FISA's enactment, the need to "conduct surveillance of international communications on wires inside the United States" developed, in part because of "the use, location, or accessibility of fiber optic cables"), in LEGISLATING THE WAR ON TERROR: AN AGENDA FOR REFORM 217, 226 (Benjamin Wittes, ed., 2009) .
13. See, e.g., JAMES BAMFORD, THE SHADOW FACTORY: THE ULTRA SECRET NSA FROM 9/11 TO THE EAVESDROPPING ON AMERICA 12-14 (2008) (describing the vast data-collection capabilities of the NSA).
14. See Josh Meyer & Joseph Menn, U.S. Spying is Much Wider, Some Suspect, L.A. TIMES, Dec. 25, 2005, at A1 (investigating concerns that the NSA's wholesale collection of communication data exceeded FISA and threatened Americans' privacy).
15. See Shane Harris, FISA's Failings, NAT'L J., Apr. 8, 2006, at 59, 59 ("[T]he NSA's warrantless eavesdropping program also involves looking for suspicious patterns in a sea of communications.").
16. See Leslie Cauley, NSA Has Massive Database of Americans' Phone Calls, USA TODAY, May 11, 2006, http://www.usatoday.com/news/washington/2006-05-10-nsa- x.htm ("[T]he National Security Agency has been secretly collecting the phone call records of tens of millions of Americans ⋯ . [T]he spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity ⋯ .").
17. FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2463 (to be codified in scattered sections of 50 U.S.C.).
18. See id. § 702(a)-(e) (specifying the requirements for acquiring communications data and setting out targeting and minimization protocols).
19. See id. § 403 (indicating that the codification is to expire on December 31, 2012).
20. See infra notes 105-07 and accompanying text.
21. In re Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004 (FISA Ct. Rev. 2008).
22. Protect America Act of 2007, Pub. L. No. 110-55, §§ 2-3, 121 Stat. 552, 552-55 (to be codified at 50 U.S.C. §§ 1805(a)-(c)).
23. See In re Directives, 551 F.3d at 1010 (recognizing the lack of an explicit foreign intelligence exception, but reasoning from the "special needs" cases that an exception to the warrant requirement was appropriate).
24. See Posner, Privacy, Surveillance, and Law, supra note 6, at 246-47 (discussing modern computer technology and its complication of the values debate shaping lawmaking in the field of electronic surveillance).
25. See Banks, supra note 7, at 1214-15 (arguing that the cumulative complexity of FISA has led to the loss of the policy compromise between enabling surveillance and using oversight mechanisms to safeguard individual privacy);
26. Posner, A New Surveillance Act, supra note 6 (arguing that the "best, and probably the only, way" to clarify the government's ability to conduct electronic surveillance is to "enact a new statute").
27. See United States v. U.S. Dist. Court (Keith), 407 U.S. 297, 320-22 (1972) (holding that a warrant is required to conduct domestic surveillance, but limiting that holding to purely domestic threats to national security).
28. A lower federal court has upheld an exception to the Fourth Amendment Warrant Clause for searches conducted for foreign intelligence purposes outside the United States that involve U.S. persons acting as foreign agents, although in other respects a search still must be reasonable.
29. See United States v. Bin Laden, 126 F. Supp. 2d 264, 277 (S.D.N.Y. 2000) (adopting a foreign intelligence exception to the warrant requirement for searches targeting foreign powers or their agents conducted abroad). The Supreme Court has not ruled on either set of questions.
30. See Katz v. United States, 389 U.S. 347, 361 (1967) (holding that invasion of a constitutionally protected area without a warrant is presumptively unreasonable).
31. Banks, supra note 7, at 1241-54.
32. See, e.g., id. at 1271-74 (discussing the debate surrounding the adoption of the 2004 Amendment that expanded FISA's reach to unaffiliated persons).
33. See FISA Amendments Act of 2008, Pub. L. No. 110-261, §§ 701-708, 122 Stat. 2436, 2438-59 (to be codified at 50 U.S.C. §§ 1881-1881g) (relating to "Persons Outside the United States").
34. See Banks, supra note 7, at 1230 (explaining that in 2008 the definition of electronic surveillance excluded surveillance taking place abroad).
35. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, § 105(a)(3)(A), 92 Stat. 1783, 1790 (codified at 50 U.S.C. § 1805(a)(3)(A) (2006)).
36. Id.
37. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 101(b)(1), 118 Stat. 3638, 3742 (codified as amended at 50 U.S.C. § 1801(b)(1)(C) (2006)) (defining agent of a foreign power as "any person other than a United States person, who engages in international terrorism or activities in preparation therefore").
38. FISA § 105(b)(1)(B).
39. FISA § 101(h).
40. see also Intelligence Authorization Act for Fiscal Year 1995, Pub. L. No. 103-359, sec. 807, § 301(4), 108 Stat. 3423, 3443-44 (codified at 50 U.S.C. § 1821(4) (2006)) (amending FISA to include a new definition for "minimization procedures").
41. FISA § 103.
42. See Banks, supra note 7, at 1233-40 (detailing the operation of FISA between 1978 and the early 1990s).
43. Banks, supra note 7, at 1231-32.
44. Id. at 1260.
45. Id. at 1276.
46. Id.
47. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, § 105(a)(3)(A), 92 Stat. 1783, 1790 (codified at 50 U.S.C. § 1805(a)(3)(A) (2006)).
48. Banks, supra note 7, at 1233-34.
49. Administration Defends NSA Eavesdropping to Congress, CNN.COM, Dec. 23, 2005, http://www.cnn.com/2005/POLITICS/12/23/justice.nsa/index.html.
50. Letter from Brian A. Benczkowski, Principal Deputy Assistant Att'y Gen., U.S. Dep't of Justice, to Nancy Pelosi, Speaker, U.S. House of Representatives 1 (Apr. 30, 2008), available at http://www.fas.org/irp/agency/doj/fisa/2007rept. pdf.
51. Chris Roberts, Transcript: Debate on the Foreign Intelligence Surveillance Act, EL PASO TIMES, Aug. 22, 2007, available at http://www.elpasotimes.com/news/ci-6685679.
52. Banks, supra note 7, at 1294.
53. See Orin S. Kerr, Updating the Foreign Intelligence Surveillance Act, 75 U. CHI. L. REV. 225, 234-35 (observing that due to "the dominant role of the United States in modern communications technology ⋯ [c]ommunications service providers in the United States end up playing host to a great deal of traffic sent and received from individuals located abroad").
54. Id. at 35.
55. See FISA for the 21st Century: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 9 (2006) (testimony by Michael V. Hayden, Director, CIA, Office of the Director of National Intelligence), available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109-senate- hearings&docid=f:43453.pdf ("When [FISA] was passed, almost all local calls were on a wire and almost all long haul communications were in the air.").
56. Id.
57. Id. at 7.
58. FISA defines "electronic surveillance" as
59. (1) the acquisition by an electronic ⋯ device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
60. (2) the acquisition by an electronic ⋯ device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States ⋯.
61. (3) the intentional acquisition by an electronic ⋯ device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
62. (4) the installation or use of an electronic ⋯ device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, § 101(f), 92 Stat. 1783, 1785 (codified at 50 U.S.C. § 1801(f)(1)-(4)).
63. See Kris, supra note 9, at 223 (noting that technological change from communications satellites to undersea fiber-optic cables has caused the scope of FISA to expand).
64. See Rebecca A. Copeland, War on Terrorism or War on Constitutional Rights? Blurring the Lines of Intelligence Gathering in Post-September 11 America, 35 TEX. TECH. L. REV. 1, 20 (2004) (noting that the USA PATRIOT Act essentially "puts email and internet communication within the purview of clandestine FISA surveillance").
65. Kerr, supra note 47, at 230-32 (reporting that the provision was written to cover microphone bugs and closed-circuit television surveillance, but its original, unchanged terms apply to surveillance of foreign-to-foreign e-mail messages from inside the United States).
66. Strengthening FISA: Does the Protect America Act Protect Americans' Civil Liberties and Enhance Security?: Hearing Before the S. Comm. on the Judiciary, 110th Cong. 47 (2007) [hereinafter Strengthening FISA] (statement of James A. Baker, Harvard Law School, Former Counsel for the Office of Intelligence Policy and Review, United States Department of Justice).
67. Kris, supra note 9, at 229.
68. Kristen Breitweiser, Enabling Danger (Part One), HUFFINGTON POST, Aug. 20, 2005, http://www.huffingtonpost.com/kristen-breitweiser/enabling-danger- part-one-b-5951.html. Media reports indicated that four of the hijackers had been identified in the summer of 2000 by a datamining program called Able Danger, run by the Defense Intelligence Agency.
69. Id.
70. See TECH. AND PRIVACY ADVISORY COMM., SAFEGUARDING PRIVACY IN THE FIGHT AGAINST TERRORISM 45-48 (2004), available at http://www.cdt.org/security/ uusapatriot/20040300tapac.pdf (recommending privacy protections and recognizing that data mining can "serve many useful purposes in the fight against terrorism and other crimes"). Nearly 200 data-mining programs are in use or are being developed by the government.
71. U.S. GEN. ACCOUNTING OFFICE, DATA MINING: FEDERAL EFFORTS COVER A WIDE RANGE OF USES 2 (2004), available at http://www.gao.gov/new.items/d04548.pdf. This includes fourteen dedicated to analyzing intelligence and detecting terrorists.
72. Jeff Jonas & Jim Harper, CATO Institute, Policy Analysis No. 584, Effective Counterterrorism and the Limited Role of Predictive Data Mining 5 (2006), available at http://www.cato.org/pub-display.php?pub-id=6784.
73. K. A. Taipale, Data Mining and Domestic Security: Connecting the Dots to Make Sense of Data, 5 COLUM. SCI. & TECH. L. REV. 6 (2003).
74. See TECH. AND PRIVACY ADVISORY COMM., supra note 59, at 27-28 (explaining that the USA PATRIOT covers "addressing and routing" Internet communications).
75. See id. at 33-41 (describing the implications of government data mining on U.S. persons).
76. GLEN A. FINE, OFFICE OF THE INSPECTOR GEN. OF THE DEP'T OF JUSTICE ET AL., REPORT NO. 2009-0113-AS, (U) UNCLASSIFIED REPORT ON THE PRESIDENT'S SURVEILLANCE PROGRAM 5- 7 (2009), available at http://www.fas.org/irp/eprint/ psp.pdf.
77. James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at A1.
78. President George W. Bush, Press Conference on the Post-September 11 Intelligence Gathering Program (Dec. 19, 2005), available at http://www.whitehouse.gov/news/releases/2005/12/20051219-2.html.
79. see also U.S. DEP'T OF JUSTICE, LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT 5 (2006) [hereinafter DOJ WHITEPAPER] ("The President has acknowledged that ⋯ he has authorized the NSA to intercept international communications into and out of the United States of persons linked to al Qaeda or related terrorist organizations.").
80. See FINE, supra note 63, at 15-16 (describing the layers of review that the PSP engaged in to target al Qaeda activity).
81. Posner, Privacy, Surveillance, and Law, supra note 6, at 253.
82. Id.
83. Id.
84. See FINE, supra note 63, at 17 (describing the FBI's role in the TSP as a recipient of the intelligence ultimately collected).
85. See id. at 11-14, 20 (outlining the arguments in favor of the legality of and presidential authority to authorize the TSP).
86. See Eric Lichtblau & David Johnston, Court to Overturn U.S. Wiretapping in Terror Cases, N.Y. TIMES, Jan. 18, 2007, at A1 (reporting that the Bush Administration agreed to submit the NSA's wiretapping program to the supervision of the FISA Court).
87. Letter from Alberto R. Gonzales, Att'y Gen. of the U.S., to Patrick Leahy, Chairman, Comm. on the Judiciary, and Arlen Specter, Ranking Minority Member, Comm. on the Judiciary (Jan. 17, 2007), available at http://www.fas.org/irp.congress/2007-cr/fisa011707.html. He thus implicitly conceded that TSP did fall within the scope of FISA.
88. See FINE, supra note 63, at 30 ("Certain activities that were originally authorized as part of the PSP have subsequently been authorized under orders issued by the Foreign Intelligence Surveillance Court (FISC). The activities transitioned in this manner included the ⋯ 'Terrorist Surveillance Program.'").
89. Id. at 30-31.
90. FINE, supra note 63, at 30.
91. See Kris, supra note 9, at 219, 230 (explaining the government is required to adhere to specific "minimization procedures" designed to balance the government's need to obtain intelligence against the privacy interests of Americans).
92. See Hearing on the Foreign Intelligence Surveillance Act and Implementation of the Protect America Act Before the S. Comm. on the Judiciary, 110th Cong. 17 (2007) (statement of J. Michael McConnell, Director of National Intelligence), http://www.dni.gov/testimonies/20070925-testimony.pdf ("[S]ome have advocated for a proposal that would exclude only 'foreign-to-foreign' communications from FISA's scope.").
93. See FINE, supra note 63, at 9-13 (describing key features of the PAA and the scope of its coverage).
94. See id. at 5-7 ("FISA's definition of electronic surveillance, prior to the Protect America Act and as passed in 1978, has not kept pace with technology.").
95. See id. ("Thus, technological changes have brought within FISA's scope communications that the 1978 Congress did not intend to be covered.").
96. Protect America Act of 2007, Pub. L. No. 110-55, 121 Stat. 552 (to be codified at 50 U.S.C. §§ 1803, 1805a-1805c).
97. Id.
98. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, § 101(m), 92 Stat. 1783, 1786 (codified at 50 U.S.C. § 1801(m) (2006)).
99. Kris, supra note 9, at 32-33.
100. See David Kris, A Guide to the New FISA Bill, Part II, June 25, 2008, available at http://balkin.blogspot.com/2008/06/guide-to-new-fisa-bill-part-ii. html (noting that the PAA "focuses only on the target's location (or the government's reasonable belief about his location) not his status or conduct as a terrorist or agent of a foreign power").
101. Eric Lichtblau, Rhetoric: High; Anxiety: Low, N.Y. TIMES, Mar. 1, 2008, at A11.
102. FISA Amendments Act of 2008, Pub. L. No. 110-261, § 703, 122 Stat. 2436, 2441 (to be codified at 50 U.S.C. § 1881a(h)(3)) ("No cause of action shall lie in any court against any electronic communication service provider for providing any information, facilities, or assistance ⋯ .").
103. Lichtblau, supra note 87;
104. see also FISA Amendments Act § 403 (indicating that the codification is to expire on December 31, 2012).
105. FISA Amendments Act § 702.
106. See Kris, supra note 86 ("[T]here is no requirement that anyone-the FISA Court or the NSA-find probable cause that the target is a terrorist or a spy before (or after) commencing surveillance.").
107. FISA Amendments Act § 702.
108. See supra notes 46-51 and accompanying text.
109. FISA Amendments Act § 404. The requirements for minimization in the review of individualized applications for FISA surveillance are codified in 50 U.S.C. §§ 1801(h), 1821(4). Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, § 101(h), 92 Stat. 1783, 1785- 86 (codified at 50 U.S.C. §§ 1801(h), 1821(4) (2006)). Both sections direct the Attorney General to promulgate detailed minimization procedures. Id. The procedures are classified. Id.
110. Id. § 101. The requirements for minimization are subject to the government's need to "disseminate foreign intelligence information."
111. Id.
112. FISA Amendments Act § 404.
113. Id.
114. Id.
115. FISA § 101.
116. See Kris, supra note 86 (positing that the problem was solved, or "dealt with," via "minimization").
117. Compare FISA Amendments Act § 703(a)(1), with id. § 702(a).
118. See Kerr, supra note 47, at 230 (revealing that FISA, as enacted in 1978, prohibited the government from intentionally targeting the phone calls of "a particular, known United States person" from either outside the United States or within it).
119. FISA Amendments Act § 702.
120. See, e.g., Editorial, Compromising the Constitution, N.Y. TIMES, July 8, 2008, at A20 (criticizing the FAA in part because the federal government would be permitted to listen "to all calls to a particular area code in any other country");
121. Ryan Singel, Dems Agree to Expand Domestic Spying, Grant Telecoms Amnesty, WIRED, June 19, 2008, http://www.wired.com/threatlevel/2008/06/dems- agree-to-e/ (indicating that under the FAA, "the intelligence community will be able to issue broad orders to U.S. ISPs, phone companies and online communications services like Hotmail and Skype to turn over all communications that are reasonably believed to involve a non- American who is outside the country");
122. Ryan Singel, House Grants Telecom Amnesty, Expands Spying Powers, WIRED, June 20, 2008, http://www.wired.com/threatlevel/2008/06/house-grants-te/ (indicating that the FAA allows the NSA "to order phone companies, ISPs and online service providers to turn over all communications that have one foreigner as a party to the conversation").
123. FISA Amendments Act § 702. FISC approval of a written certification from the Attorney General and DNI must occur prior to implementation of the authorization for surveillance, unless the same officials determine that time does not permit the prior review, in which case the authorization must be sought as soon as practicable, but not more than seven days after the determination is made.
124. Id.
125. Id.
126. See Posner, Privacy, Surveillance, and Law, supra note 6, at 253 (describing the NSA process of "content filtering" and "traffic analysis").
127. Id. at 252.
128. See Berger v. New York, 388 U.S. 41, 58-59 (1967) (striking down an electronic surveillance statute because it allowed acquisition of "the conversations of any and all persons coming into the area covered by the device ⋯ indiscriminately and without regard to their connection with the crime under investigation").
129. See In re Sealed Case, 310 F.3d 717, 740 (FISA Ct. Rev. 2002) ("[I]n practice FISA surveillance devices are normally left on continuously, and the minimization occurs in the process of indexing and logging the pertinent communications.").
130. In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611 (FISA Ct. 2002), abrogated by In re Sealed Case, 310 F.3d at 717.
131. Id. at 617-18;
132. see also In re Sealed Case 310 F.3d at 740 ("[I]n practice FISA surveillance devices are normally left on continuously, and the minimization occurs in the process of indexing and logging the pertinent communications. ").
133. In re Sealed Case, 310 F.3d at 741.
134. Compare 18 U.S.C. § 2518(9) (2006), with Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, § 106(f), 92 Stat. 1783, 1794 (codified at 50 U.S.C. § 1806(f)).
135. See FISA § 101(h)(1) (defining minimization procedures to mean "specific procedures ⋯ designed ⋯ to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons").
136. In re All Matters, 218 F. Supp. 2d at 617-18. Early experience with minimization under FISA is reviewed in Helene E. Schwartz, Oversight of Minimization Compliance Under the Foreign Intelligence Surveillance Act: How the Watchdogs Are Doing Their Jobs, 12 RUTGERS L.J. 405 (1981).
137. FISA Amendments Act of 2008, Pub. L. No. 110-261, § 702, 122 Stat. 2436, 2439 (to be codified at 50 U.S.C. § 1881a(e)).
138. FISA Amendments Act § 702.
139. See FISA § 101(h)(2) (indicating that nonpublicly available information can be disseminated in a manner that identifies a U.S. person without their consent when such person's identity "is necessary to understand foreign intelligence information or assess its importance").
140. In re Proceedings Required by § 702(i) of the FISA Amendments Act of 2008, No. Misc. 08-01, slip op. at 3 (FISA Ct. Aug. 27, 2008).
141. FISA Amendments Act § 702.
142. Id.
143. Id.
144. Id.
145. In re Directives to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004, 1017-18 (FISA Ct. Rev. 2008).
146. Id. at 1011-12.
147. Id. at 1006.
148. Id. at 1007.
149. Id. at 1010-12.
150. Id. at 1011.
151. Id. at 1015.
152. Id.
153. In re Sealed Case, 310 F.3d 717 (FISA Ct. Rev. 2002).
154. In re Directives, 551 F.3d at 1013.
155. Id.
156. Id.
157. Id.
158. See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995) (approving warrantless searches that were designed to meet the government's "special needs, beyond the normal need for law enforcement" (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987))).
159. See Ferguson v. City of Charleston, 532 U.S. 67, 81-86 (2001) (declaring arrests made pursuant to hospital urine tests unconstitutional because of the policy's law enforcement purpose);
160. City of Indianapolis v. Edmond, 531 U.S. 32, 41-47 (2000) (invalidating "drug checkpoints" because the program's primary purpose was to uncover evidence of ordinary criminal wrongdoing);
161. Griffin, 483 U.S. at 880 (upholding the supervision of prisoners as a "special need" justifying departure from the warrant process).
162. In re Sealed Case, 310 F.3d 717 (FISA Ct. Rev. 2002).
163. See Banks, supra note 7, at 1282 (asserting that the application of the special-needs doctrine after the "significant purpose" amendment could allow the program to be used even when its sole purpose is the collection of evidence for prosecution without any version of a probablecause requirement).
164. See id. at 1269-70 (noting that FISA should be unavailable if the purpose of the investigation is to prosecute because of FISA's requirements and the protections of the First, Fourth, and Sixth Amendments).
165. See Mayfield v. United States, 504 F. Supp. 2d 1023, 1032 (D. Or. 2007) (holding that "the government can conduct surveillance to gather evidence for use in a criminal case without a traditional warrant, as long as it presents a non-reviewable assertion that it also has a significant interest in the targeted person for foreign intelligence purposes"), rev'd, 588 F.3d 1252 (9th Cir. 2009) (declining to address the question of whether the challenged provisions of FISA, as amended by the USA PATRIOT Act, was unconstitutional).
166. Id.
167. See In re Sealed Case, 310 F.3d at 742 ("[A]ll the ⋯ courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information."). But see Mayfield, 504 F. Supp. 2d at 1023.
168. See In re Sealed Case, 310 F.3d at 377-79.
169. In re Directives to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004, 1014-15 (FISA Ct. Rev. 2008). In what the FISCR calls a "parting shot," the telecom raised what the court called "a specific privacy concern."
170. Id. at 1015. The court mentioned it only to task the Executive with notifying the telecom if that concern, whatever it is, arises. We cannot know whether the telecom was drawing attention to the inevitability of overcollection, either in general or specifically in this case.
171. Id.
172. In re Terrorist Bombings of U.S. Embassies, 552 F.3d 157 (2d Cir. 2008).
173. Id. at 172 (quoting Samson v. California, 547 U.S. 843, 848 (2006)).
174. Id. at 175.
175. Id. at 175-76.
176. FISA Amendments Act of 2008, Pub. L. No. 110-261, § 703, 122 Stat. 2436, 2448-51 (to be codified at 50 U.S.C. §§ 1881b-1881c).
177. In re Directives to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004, 1014 (FISA Ct. Rev. 2008).
178. Id. at 1015 (citing, e.g., United States v. Kahn, 415 U.S. 143, 157-58 (1974)). In United States v. Butenko, 494 F.2d 593, 608 (1974), a review of warrantless surveillance for foreign intelligence purposes found that incidental collection that infringes privacy should be reviewed as part of Fourth Amendment reasonableness.
179. Amnesty Int'l USA v. McConnell, 646 F. Supp. 2d 633, 635 (S.D.N.Y. 2009).
180. Eric Lichtblau & James Risen, Officials Say U.S. Wiretaps Exceeded Law, N.Y. TIMES, Apr. 6, 2009, at A1.
181. James Risen & Eric Lichtblau, Extent of E-mail Surveillance Renews Concerns in Congress, N.Y. TIMES, June 17, 2009, at A1.
182. Id.
183. Id.
184. Id.
185. Id.
186. Id.
187. see also Scott Horton, Operation Pinwale, HARPER'S MAG., June 18, 2009, available at http://harpers.org/archive/2009/06/hbc-90005232 (describing a database code named Pinwale that allegedly contains a large volume of Americans' e-mail messages collected by the NSA).
188. Kris, supra note 9, at 237.
189. See id. at 229 (noting that the amendments, pending at the time, only require the "government's reasonable belief about [a target's] location," as opposed to the more demanding requirement of the target's "status ⋯ as a terrorist or agent of a foreign power").
190. See Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, § 101(m), 92 Stat. 1783, 1786 (codified at 50 U.S.C. § 1801(m) (2006)) (defining "person" as "any individual, including any officer or employee of the Federal government, or any group, entity, association, corporation, or foreign power").
191. See United States v. Verdugo-Urquidez, 494 U.S. 259, 274-75 (1990) (rejecting a Fourth Amendment claim based on the fact that the searched person had "no voluntary attachment to the United States").
192. Kerr, supra note 47, 232-33.
193. Fred H. Cate, Government Data Mining: The Need for a Legal Framework, 43 HARV. C.R.-C.L. L. REV. 435, 437 (2008).
194. Kerr, supra note 47, at 238.
195. Judge Posner would define the predicate for programmatic surveillance narrowly. "[T]hreats to national security" would include only "threats involving a potential for mass deaths or catastrophic damage to property or to the economy." Posner, Privacy, Surveillance, and Law, supra note 6, at 258.
196. See Kris, supra note 9, at 235-36 (suggesting changes to the FAA that would apply to communications between a sender and receivers all located in the United States).
197. Id.
198. Kerr, supra note 47, at 238-39.
199. FINE, supra note 63, at 38.
200. Id. at 3.
201. See Warshak v. United States, 490 F.3d 455, 473-76 (6th Cir. 2007) (finding that individuals have a "reasonable expectation of privacy in e-mails that are stored with, or sent or received through, a commercial ISP" and thus that the government must provide notice and an opportunity to be heard before compelling the ISP to turn over the e-mails to the government), vacated, 532 F.3d 521 (6th Cir. 2008) (en banc);
202. see also Daniel J. Steinbock, Data Matching, Data Mining, and Due Process, 40 GA. L. REV. 1, 82-83 (2005) (advocating due process protections in data mining).
203. The FISA Court only reviews targeting and minimization procedures to ensure that they meet the statutory requirements and the Fourth Amendment, and the court only reviews certifications as a matter of form, to ensure that they "contain[] all the required elements." Kris, supra note 86, at 230 (citing FISA Amendments Act, Pub. L. No. 110-261, § 702, 122 Stat. 2436, 2444 (to be codified at 50 U.S.C. § 1881a(i)(3)(A)-(B))).
204. See, e.g., Cate, supra note 168, at 480, 487 (arguing that prior judicial authorization in data mining would help better balance security with privacy concerns).
205. See Mark Williams, The Total Information Awareness Project Lives On, TECH. REV., Apr. 26, 2006, available at http://www.technologyreview.com/ communications/16741 (explaining that when the NSA practices automated data mining, FISA requirements are inapplicable because it is not a search of a specific individual).
206. Cate, supra note 168, at 473-74.
207. Id. at 471-80.
208. See Williams, supra note 179 (stating that the NSA uses electronic analysis and content filtering to apply "highly sophisticated search algorithms and powerful statistical methods ⋯ [to] search for particular words or language combinations that may indicate terrorist communications") .
209. See K. A. Taipale, Whispering Wires and Warrantless Wiretaps: Data Mining and Foreign Intelligence Surveillance, 8 N.Y.U. REV. L. & SECURITY, NO. VII SUPPLEMENTAL BULL. ON L. & SECURITY 3, 5-6 (2006) (so advocating).
210. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, § 101(h)(1), 92 Stat. 1783, 1785 (codified at 50 U.S.C. § 1801(h)(1) (2006)). The procedures are also sent to the Intelligence Committees in Congress. FISA Amendments Act of 2008, Pub. L. No. 110-261, § 702(f)(2)(A), 122 Stat. 2436, 2439 (to be codified at 50 U.S.C. § 1881a(1)(1)(B)).
211. FISA § 106(f).
212. Id. § 105(d)(3);
213. Intelligence Authorization Act for Fiscal Year 1995, Pub. L. No. 103-359, § 304(c)(3), 108 Stat. 3423, 3448 (codified at 50 U.S.C. § 1824(d)(3) (2006)).
214. FISA § 105(a)(5)
215. Intelligence Authorization Act § 304(a)(5).
216. See supra notes 114-17 and accompanying text.
217. See supra note 184 and accompanying text.
218. In re All Matters Submitted to the Foreign Intelligence Surveillance
219. Id.
220. It is, of course, also true that the failure of the government to log or index a communication that made that record practically inaccessible when FISA was enacted would not stand in way of retrieval of the record today if officials employed their search software.
221. See DAVID S. KRIS & J. DOUGLAS WILSON, NATIONAL SECURITY INVESTIGATIONS AND PROSECUTIONS 9-22 to -24 (2007) (describing "tensions" between retention and discovery in criminal cases, where useable files are disclosed to the defendant in compliance with Brady, including non-pertinent audio files that should have been destroyed or rendered useless following minimization). In other words, even information minimized following traditional FISA practices might still be accessible to the government. Id.
222. See supra notes 115-17 and accompanying text.
223. Daniel J. Solove, Data Mining and the Security-Liberty Debate, 75 U. CHI. L. REV. 343, 352-53 (2008).
224. COMM. ON TECHNICAL AND PRIVACY DIMENSIONS OF INFO. FOR TERRORISM PREVENTION AND OTHER NAT'L GOALS ET AL., NAT'L RESEARCH COUNCIL OF THE NAT'L ACADEMIES, PROTECTING INDIVIDUAL PRIVACY IN THE STRUGGLE AGAINST TERRORISTS: A FRAMEWORK FOR PROGRAM ASSESSMENT 3-4 (2008) [hereinafter PROTECTING INDIVIDUAL PRIVACY], available at http://epic.org/misc/nrc-rept-100708.pdf.
225. Cate, supra note 168, at 469-70.
226. PROTECTING INDIVIDUAL PRIVACY, supra note 195, at 4. The committee offered a detailed framework for prospective development of data-mining programs to combat terrorism.
227. Id. at 44-66.
228. But see Balancing Privacy and Security: The Privacy Implications of Government Data Mining Programs: Hearing Before the S. Comm. on the Judiciary, 110th Cong. 14 (2007) (testimony by Kim Taipale, Founder and Executive Director, Center for Advanced Studies in Science and Technology Policy), http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110-senate- hearings&docid=f:33226.pdf (arguing that data mining for counterterrorism is a useful investigative tool that may be tailored to meet government needs and protect privacy).
229. PROTECTING INDIVIDUAL PRIVACY, supra note 195, at 4.
230. Id. at 5.
231. Id. at 55.
232. Id.
233. See United States v. Miller, 425 U.S. 435, 442 (1976) (holding a bank customer had no expectation of privacy in checks and deposit slips held by a bank);
234. see also Smith v. Maryland, 442 U.S. 735, 742 (1979) (holding there is no expectation of privacy when a pen register is installed on phone company property at the company's office because people do not reasonably believe there is an expectation of privacy when they "convey" a dialed phone number to the phone company).
235. See Miller, 425 U.S. at 442; Smith, 422 U.S. at 742 (both reasoning that the expectation of privacy vanishes when a person voluntarily submits data to a third party).
236. See Cate, supra note 168, at 454-60 (setting out the Court's decisions in Miller and Smith and applying that line of cases today).
237. Solove, supra note 194, at 356-57 (finding that the third-party doctrine severely limits Fourth Amendment protections where the government mines data voluntarily given to companies by their customers).
238. Cf. Warshak v. United States, 490 F.3d 455, 473, 482 (6th Cir. 2007) (finding Fourth Amendment protection against the government's warrantless subpoena of e-mails transmitted through a commercial ISP where the fact that it was not the ISP's normal practice to review e-mails supported users' reasonable expectation of privacy), vacated, 532 F.3d 521 (6th Cir. 2008).
239. Cate, supra note 168, at 460.
240. Id.
241. H.R. REP. NO. 95-1283, pt. 1, at 56 (1978).
242. See In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611, 618 (FISA Ct. 2002) (outlining the principal steps in the minimization process), abrogated by In re Sealed Case, 310 F.3d 717, 736 (FISA Ct. Rev. 2002).
243. Id.
244. Id.
245. KRIS & WILSON, supra note 192, at 9-23.
246. See OFFICE OF DIR. OF NAT'L INTELLIGENCE, ELECTRONIC FRONTIER FOUNDATION FINAL RESPONSE (2007), available at http://www.dni.gov/electronic-reading-room/ EFFR%20-%20FOIA.pdf (describing the policy by which the NSA should hand off information to the FBI as part of the minimization procedure).
247. Letter from Alexander W. Joel, Civil Liberties Prot. Officer, Office of the Dir. of Nat'l Intelligence, to Silvestre Reyes & Peter Hoekstra, Representatives, U.S. House of Representatives 6 (Sept. 17, 2007), available at http://www.fas.org/irp/news/2007/09/joel091707.pdf.
248. Id.
249. Id.
250. Id.
251. Id. at 7-8.
252. NSA's Minimization Procedures, in FOIA REQUEST BY ELECTRONIC FRONTIER FOUNDATION 000301 (Dec. 10, 2007), available at http://www.dni.gov/electronic- reading-room/EFFR%20-%20FOIA.pdf.
253. Id. at 000301, 000304.
254. KRIS & WILSON, supra note 192, at 9-27;
255. cf. 50 U.S.C. § 1801(h)(2) (2006) (defining "minimization procedures" as those procedures protecting U.S. person identities).
256. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, § 102(a)(1)(B), 92 Stat. 1783, 1787 (codified at 50 U.S.C. § 1802(a)(1)(B) (2006)).
257. FISA § 101.
258. MARKLE FOUND., MOBILIZING INFORMATION TO PREVENT TERRORISM: ACCELERATING DEVELOPMENT OF A TRUSTED INFORMATION SHARING ENVIRONMENT (2006).
259. Id. at 33.
260. Id. at 35-36.
261. Id. at 35.
262. Id.
263. Id. at 36.
264. Id. at 40. The Task Force also proposed that authorized use include a safe-harbor mechanism that would prohibit punitive action against any user of the system that used collected information following authorized-use guidelines.
265. Id. at 40-41.
266. Id. at 34-35, 39.
267. Id. at 39.
268. Taipale & Carafano, supra note 6, at 21.
269. Posner, Privacy, Surveillance, and Law, supra note 6, at 254.
270. Id. at 252-53.