First Amendment Rights and Access to Opinions

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In 1972, five burglars were arrested following the break-in of the Democratic National Convention (DNC) headquarters at the Watergate office complex in Washington D.C. Uncovered, was a plan concocted by members of the official organization of President Nixon’s campaign to photograph campaign documents and install listening devices in telephones. Taped recordings of President Nixon’s conversations revealed the President had clearly obstructed justice by directing members of the CIA to halt the FBI investigation into the DNC break-in.

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Facing certain impeachment and conviction, President Nixon resigned the Presidency and subsequently pardoned by his successor, Gerald Ford. The Watergate scandal created a growing concern in the American public and Congress about the ability of the government to spy on its own citizens. During the course of the Senate Watergate Committee investigation, past executive branch direction of national intelligence agencies to carry out constitutionally questionable domestic security operations came to light. Additionally, a New York Times article published by Seymour Hersh claimed that the CIA had been spying on anti-war activists for more than a decade, violating the agencies charter. In response to these revelations, Congress launched the Church Committee in the Senate and the Pike Committee in the House to conduct an investigation into the nation’s secret agencies and programs.

The Church Committee investigated and identified a wide range of intelligence abuses by federal agencies, including the CIA, FBI, Internal Revenue Service, and National Security Agency. In the course of their work, investigators identified programs that had never before been known to the American public, including NSA’s Projects SHAMROCK and MINARET, programs which monitored wire communications to and from the United States and shared some of that data with other intelligence agencies. Committee staff researched the FBI’s long-running program of covert action designed to disrupt and discredit the activities of groups and individuals deemed a threat to the social order, known as COINTELPRO. The FBI included among the program’s many targets organizations such as the Southern Christian Leadership Conference, the anti-Vietnam War movement, and individuals such as Martin Luther King, Jr., as well as local, state, and federal elected officials.
Investigators determined that, beginning with President Franklin Roosevelt’s administration and continuing through the early 1970s, intelligence excesses, at home and abroad, were not the product of any single party, administration, or man, but had developed as America rose to a become a superpower during a global Cold War. The committee observed that there is no inherent constitutional authority for the President or any intelligence agency to violate the law, and recommended strengthening oversight of intelligence activities. The Church Committee’s investigative work led to reform efforts throughout the intelligence community. Congress approved legislation to provide for greater checks and balances of the intelligence community. In 1976 the Senate approvedSenate Resolution 400, establishing theSenate Select Committee on Intelligence, to provide vigilant legislative oversight over the intelligence activities of the United States to assure that such activities are in conformity with the Constitution and laws of the United States. In 1978 Congress approved and President Jimmy Carter signed into law the Foreign Intelligence Surveillance Act (FISA), requiring the executive branch to request warrants for wiretapping and surveillance purposes from a newly formed FISA Court.

The Foreign Intelligence Surveillance Act authorizes electronic and physical surveillance of foreign powers and agents of foreign powers for the purpose of collecting foreign intelligence information. FISA was originally enacted to regulate the collection of foreign intelligence information within the United States. The USA Patriot Act was passed by Congress as a response to the terrorist attacks of September 11, 2001 and allowed federal officials greater authority in tracking and intercepting communications, both for purposes of law enforcement and foreign intelligence gathering. Until 2001, FISA permitted electronic and physical surveillance of foreign powers and agents of foreign powers if foreign intelligence collection was the primary purpose of the activity. In 2001, the USA PATRIOT Act amended FISA to allow searches if foreign intelligence collection was a significant purpose.

In 2005 the New York Times published an article revealing the Bush administrations warrantless domestic wiretapping surveillance program dating back to 2002. President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying . . . . Under a presidential order . . . the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants . . . . The agency . . . still seeks warrants to monitor entirely domestic communications. The President relied on his Article II authority to claim a basis for not following the FISA warrant requirements but following the Supreme Court Decision in Hamdan v. Rumsfeld the argument became shaky. In response to this, the Bush Administration introduced the Protect America Act of 2007 to amend the FISA. The act was passed in August 2007 with a 6-month sunset provision and a number of significant changes to the original law including warrant requirements for foreign communications. Shortly after the expiration of the Protect America Act, Congress passed the FISA Amendments Act of 2008 which was similar to but not the same as the Protect America Act of 2007.

In 2013, NSA contractor Edward Snowden leaked an estimated 1.7 million classified intelligence files which revealed bulk data collection programs by the government. In response to the leaks, the government introduced the USA Freedom Act which restored in modified form several provisions of the Patriot Act and also imposed restrictions on bulk data collection under section 215 of the Patriot Act. Additionally, act mandates that theFISA courtrelease “novel” interpretations of the law, which thereby setsprecedentand thereby makes up the body of FISA courtcommon law, as both legal authority for deciding subsequent cases, and for guidance parameters for allowing or restricting surveillance conduct. However, the Act is not clear as to whether or not it mandates retroactive disclosure of decisions prior to passage of the Act in 2015.

In January of 2018, President Trumped signed the FISA Amendments Reauthorization Act of 2017. The act extended FISA section 702 authorities until 2023 with some significant changes. The act includes a number of reporting requirements, the publication of minimization procedures that apply to the handling of U.S. person information collected under Section 702, and it addresses issues concerning upstream about collection”information gathered from Internet communications infrastructure based on the mention of a certain selector, such as an email address, within the communication itself (as distinguished from communications collected because they are to or from a selector).
Finally, in the most recent development with respect to the FISA court is the widely discussed FISA warrant targeting former foreign-policy adviser to Donald Trump’s presidential campaign, Carter Page. In February 2018, House intelligence committee Chairman Rep. Devin Nunes released a memo claiming that the FBI misled the FISA Court about Christopher Steele, the former British secret agent who compiled the dossier on Trump-Russia ties and who was a source of information in the FISA applications on Page.

The main complaint in the Nunes memo was that the FISA applications did not disclose or reference the role of the DNC, Clinton campaign, or any party/campaign in funding Steele’s efforts, even though the political origins of the Steele dossier were then known to senior and FBI officials. In response to the Nunes memo, the Democrats on the committee released their own memo. That memo quoted from parts of the FISA applications, including a footnote in which the FBI explained that Steele was hired to conduct research regarding Candidate #1, Donald Trump, and Trump’s ties to Russia, and that the man who hired him was likely looking for information that could be used to discredit [Trump’s] campaign. On July 21, 2018 the FBI released a heavily redacted copy of the 412 page FISA application seeking a warrant against Carter Page. Regardless of whether the allegations of impropriety by the FBI are determined to be true, these documents raise serious concerns about the level of oversight the FISA courts work under.

Structure of the Act and Court

The Foreign Intelligence Surveillance Court sits in Washington D.C., and is composed of eleven federal district court judges who are designated by the Chief Justice of the United States. Each judge serves for a maximum of seven years and their terms are staggered to ensure continuity on the Court. By statute, the judges must be drawn from at least seven of the United States judicial circuits, and three of the judges must reside within 20 miles of the District of Columbia. Judges typically sit for one week at a time, on a rotating basis. Pursuant to FISA, the Court entertains applications submitted by the United States Government for approval of electronic surveillance, physical search, and other investigative actions for foreign intelligence purposes. Most of the Court’s work is conducted ex parte as required by statute, and due to the need to protect classified national security information.

The USA Freedom Act requires designation of at least five people who may serve asamicus curiae: individuals are appointed to inform the court about specific legal or technical issues in certain cases.In cases involving a novel or significant interpretation of the law, one of the designated amicus curiae shall be appointed to assist the court unless the court gives a reason that it would not be appropriate. In other cases, the court may appoint an individual or organization to serve as amicus curiae or file an amicus brief. Since the passage of USA Freedom Act,amicushave counseled the Court on questions such as the government’s ability toretain call metadataafter the effective date of the Act and the government’s authority touse pen registerswhen communications content may be collected.

The FISC operations are classified by default due to the sensitive nature of the issues addressed, but the court has become increasingly visible to the public as the Director of National Intelligence has begun publicly releasing FISC opinions and Congress has issued transparency mandates in the USA FREEDOM Act. However, records from FISC hearings are still not typically made available, even to petitioners challenging surveillance orders under the court rules. FISC historically had discretion to publish its opinions, and in some cases it did so. However, Congress imposed new transparency requirements in the USA Freedom Act, seeking to make the court more publicly accountable. The Director of National Intelligence now must review each FISC order or opinion to determine whether it includes a significant construction or interpretation of any provision of law. Any orders that do must be made public to greatest extent practicable, although when necessary to protect national security it may be permissible for the ODNI to release a summary of the decision.

Congress created the Foreign Intelligence Surveillance Court of Review (FISCR) in 1978 to hear appeals from applications denied by FISC. This court is made up of three judges, appointed by the Chief Justice, from U.S. district or appellate courts and serving for seven years. The FISCR has jurisdiction to review the denial of any application under FISA by the FISC. The FISCR’s review of the FISC’s denial of an application for surveillance is limited. After a “motion of the United States” to transmit the FISC’s record, the FISCR may either affirm or reverse the FISC judge’s decision. If the FISCR determines that the application was properly denied, it must “provide for the record a written statement of each reason for its decision.” Under the USA Freedom Act, the FISC is required to certify for review by the FISCR questions of law in the orders it has issued that affect the need for uniformity or where consideration would serve the interests of justice. In response, the FISCR may give binding instructions to the FISC or require the FISC send the complete record to the FISCR for it to decide the entire matter itself. Finally, the FISCR can also review the FISC’s decisions on third party challenges to orders under FISA (e.g. an order for an individual to produce tangible things or a connected gag order, and electronic service providers directed to assist the government).

The Supreme Court has statutory jurisdiction to review FISC opinions under certain circumstances. The Court may review on a Writ of Certiorari filed by the United States any decision of the FISCR affirming the denial of a government application to the FISC. Additionally, the FISCR certify any question of law . . . as to which instructions are desired, and the Supreme Court may then give binding instructions to the FISCR or require the FISCR send the complete record up and decide the entire matter itself. The Court may also review FISCR decisions on a third party challenges.

Foreign Intelligence Information (FII) is information that relates to U.S. ability to protect against possible hostile acts of a foreign power or an agent of a foreign power, sabotage or terrorism by a foreign power or agent, and clandestine intelligence activities by a foreign power or agent. FII includes information with respect to a foreign power or foreign territory that relates to the national defense, national security, or conduct of foreign affairs of the United States. If the intended surveillance target is a U.S. person, the information must instead be “necessary to” protect against hostile acts, sabotage, or terrorism, or U.S. national defense, national security, or foreign affairs.

Under FISA, the Justice Department reviews applications for counterintelligence warrants by agencies before submitting them to the FISC. The Attorney General must personally approve each final FISA application. The application must contain, among other things: a statement of reasons to believe that the target of the surveillance is a foreign power or agent of a foreign power; a certification from a high-ranking executive branch official stating that the information sought is deemed to beforeign intelligence information, and that the information sought cannot reasonably be obtained by normal investigative techniques; statements regarding all previous applications involving the target; detailed description of the nature of the information sought and of the type of communication or activities to be subject to the surveillance; the length of time surveillance is required; whether physical entry into a premises is necessary, and proposed procedures tominimizethe acquisition, use, and retention of information concerning nonconsenting U.S. persons.

For U.S. persons, the FISC judge must find probable cause that one of four conditions has been met: (1) the target knowingly engages in clandestine intelligence activities on behalf of a foreign power which “may involve” a criminal law violation; (2) the target knowingly engages in other secret intelligence activities on behalf of a foreign power under the direction of an intelligence network and his activities involve or are about to involve criminal violations; (3) the target knowingly engages in sabotage or international terrorism or is preparing for such activities; or (4) the target knowingly aids or abets another who acts in one of the above ways. When the FISC grants applications for surveillance it issues a “primary order” finding that all the FISA requirements were met. The FISC also issues a “secondary order” providing that “upon request of the applicant,” a specified third party must “furnish the applicant forthwith with all information, facilities, or technical assistance necessary” to accomplish the search “in such a manner as will protect its secrecy and produce a minimum of interference.” Assisting third parties, such as telephone and Internet service providers, are compensated for any assistance rendered, and can keep certain records under security procedures adopted by the government.

Section 702 of Foreign Intelligence Surveillance Act was added as an amendment in 2008. It authorizesthe collection, use, and dissemination of electronic communications contentstored by U.S. internet service providers (such as Google, Facebook, and Microsoft) or traveling across the internet’s backbone (with the compelled assistance of U.S. telecom providers such as AT&T and Verizon). It allows intelligence agencies to collect foreign intelligence from non-Americans located outside the United States. But under the surveillance authority set up under this section, many Americans also have their communications swept up by surveillance programs operated by the FBI and NSA. Unlike the four “traditional FISA” surveillance activities, the surveillance programs authorized under Section 702 of the FISA Amendments Act of 2008 do not involve FISC oversight of individual surveillance orders. The Attorney General and the Director of National Intelligence are allowed to “jointly” authorize “the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information” without adhering to traditional FISA rules.

Instead, the FISC reviews the targeting and minimization procedures adopted by the government and determines whether they comport with the statutory restrictions and the Fourth Amendment. The FISC also reviews the “certification” submitted by the government attesting that “a significant purpose of the acquisition is to obtain foreign intelligence information,” providing copies of the targeting and minimization procedures, and attesting that acquisition will comply with certain statutory limitations.The statutory limitations on acquisition are that it: (1) may not intentionally target any person known at the time of acquisition to be located in the United States; (2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States; (3) may not intentionally target a United States person reasonably believed to be located outside the United States; (4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and (5) shall be conducted in a manner consistent with the Fourth Amendment to the Constitution of

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