Wiretap Article (2 of 2)
Date: Fri, 24 Sep 1993 16:31:55 -0400 (EDT) From: denning@cs.georgetown.edu (Dorothy Denning) Subject: Wiretap Article To: ssteele@eff.org Cc: denning@guvax.acc.georgetown.edu Errors-To: Postmaster@cs.georgetown.edu Content-Transfer-Encoding: 7BIT
combination, 289 other)
(4) major offenses involved (634 narcotics, 90 racketeering, 66 gambling, 35 homicide/ assault, 16 larceny/theft, 9 kidnapping, 8 bribery, 7 loansharking/usury/extortion, 54 other)
(5) average number of (a) persons intercepted (117), (b) interceptions (1,861), and (c) incriminating intercepts (347) per order where interception devices were installed
(6) average cost of interception ($46,492)
(7) type of surveillance used for the 846 interceptions installed (632 telephone, 38 microphone, 113 electronic, 63 combination)
(8) number of persons arrested (2,685) and convicted (607) as the result of 1992 intercepts
(9) activity taking place during 1992 as the result of intercepts terminated in years 1982-1991, including number of arrests (1211), trials (280), motions to suppress that are granted (14), denied (141), and pending (37), and convictions (1450) (there is a lag between interceptions, arrests, and convictions, with many arrests and most convictions associated with a wiretap that terminated in one year taking place in subsequent years)
Most of the above data is broken down by jurisdiction. Of the 919 authorized intercepts, 340 (37%) were federal. New York State had 197, New Jersey 111, Florida 80, and Pennsylvania 77. The remaining 114 intercepts were divided among 18 states, none of which had more than 17 intercepts. During the past decade, the average number of authorized intercepts per year has been about 780.
Individual law enforcement agencies also require internal reports. For example, the New York Sate Police requires that each week, the Troop or Detail Captain prepare a report summarizing the status of all eavesdropping activity within the unit, including the productivity and plans for each electronic surveillance installation and a brief synopsis of pertinent activity. This is sent to the New York State Police Division Headquarters Captain who prepares a report summarizing the status of all eavesdropping installations.
One of the reasons for the significant amount of post wiretap reporting is to provide a substantial record for legislatures when considering whether or not to reenact or modify wiretap statutes.
3. FISA Interceptions
Title 50 USC, Sections 1801-1811, the Foreign Intelligence Surveillance Act (FISA) of 1978, covers electronic surveillance for foreign intelligence purposes (including counterintelligence and counterterrorism). It governs wire and electronic communications sent by or intended to be received by United States persons (citizens, aliens lawfully admitted for permanent residence, corporations, and associations of U.S. persons) who are in the U.S. when there is a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; nonconsensual wire intercepts that are implemented within the U.S.; and radio intercepts when the sender and all receivers are in the U.S. and a warrant would be required for law enforcement purposes. It does not cover intercepts of U.S. persons who are overseas (unless the communications are with a U.S. person who is inside the U.S.). Electronic surveillance conducted under FISA is classified.
FISA authorizes electronic surveillance of foreign powers and agents of foreign powers for foreign intelligence purposes. Normally, a court order is required to implement a wiretap under FISA. There are, however, two exceptions. The first is when the communications are exclusively between or among foreign powers or involve technical intelligence other than spoken communications from a location under the open and exclusive control of a foreign power; there is no substantial risk that the surveillance will acquire the communications to or from a U.S.person; and proposed minimization procedures meet the requirements set forth by the law. Under those conditions, authorization can be granted by the President through the Attorney General for a period up to one year. The second is following a declaration of war by Congress. Then the President, though the Attorney General, can authorize electronic surveillance for foreign intelligence purposes without a court order for up to 15 days.
Orders for wiretaps are granted by a special court established by FISA. The court consists of seven district court judges appointed by the Chief Justice of the United States. Judges serve seven-year terms.
3.1 Application for a Court Order
Applications for a court order are made by Federal officers and require approval by the Attorney General. Each application must include:
(1) the Federal officer making the application;
(2) the Attorney General's approval;
(3) the target of the electronic surveillance;
(4) justification that the target is a foreign power or agent of a foreign power (except no U.S person can be considered a foreign power or agent thereof solely based on activities protected by the First Amendment) and that the facilities or places where the surveillance is be directed will be used by the same;
(5) the proposed minimization procedures, which must meet certain requirements to protect the privacy of U.S. persons;
(6) the nature of the information sought and type of communications subjected to surveillance;
(7) certification(s) by the Assistant to the President for National Security Affairs or other high-level official in the area of national security or defense (Presidential appointee subject to Senate confirmation) that the information sought is foreign intelligence information and that such information cannot reasonably be obtained by normal investigative methods;
(8) the means by which the surveillance will be effected;
(9) the facts concerning all previous applications involving the same persons, facilities, or places;
(10) the period of time for the interception (maximum 90 days or, when the target is a foreign power, one year);
(11) coverage of all surveillance devices to be employed and the minimization procedures applying to each.
Some of the above information can be omitted when the target is a foreign power.
Within the FBI, the process of applying for a court order under FISA is as exacting and subject to review as under Title III. The main differences are that under FISA, the FBI Intelligence Division is involved rather than the Criminal Investigative Division, the DOJ Office of Intelligence Policy and Review (OIPR) is involved rather than either the U.S. Attorney's Office or the DOJ Criminal Division, and the application is approved by the Attorney General (or Acting Attorney General) rather than by a lower DOJ official.
3.2 Issuance of a Court Order
Before a judge can approve an application, the judge must determine that the authorizations are valid; that there is probable cause to believe that the target of the electronic surveillance is a foreign power or agent of a foreign power and that the facilities or places where the surveillance is be directed will be used by the same; and that the proposed minimization procedures meet the requirements set forth in the law. If the judge approves the application, an order is issued specifying the relevant information from the application and directing the communication carrier, landlord, custodian, or other specified person to furnish all necessary information, facilities, and technical assistance and to properly maintain under security procedures any records relating to the surveillance.
3.3 Emergencies
In an emergency situation, the Attorney General or designee can authorize the use of electronic surveillance provided the judge is notified at the time and an application is made to the judge within 24 hours. If such application is not obtained, then the judge notifies any U.S. persons named in the application or subject to the surveillance, though such notification can be postponed or forgone upon showing of good cause.
3.4 Use of Intercepted Communications as Evidence
Like Title III, FISA places strict controls on what information can be acquired through electronic surveillance and how such information can be used. No information can be disclosed for law enforcement purposes except with the proviso that it may only be used in a criminal proceedings under advance authorization from the Attorney General. If the government intends to use such information in court, then the aggrieved person must be notified in advance. The person may move to suppress the evidence.
3.5 Reports
Each year, the Attorney General must give the Administrative Office of the United States Courts (AO) a report of the number of FISA applications and the number of orders and extensions granted, modified, or denied. In 1992, there were 484 orders. Since 1979, there has been an average of a little over 500 FISA orders per year.
Because intercepts conducted under FISA are classified, detailed information analogous to that required under Title III is not reported to the AO, nor made available to the public. However, records of Attorney General certifications, applications, and orders granted must be held for at least 10 years, and the Attorney General must inform two Congressional oversight committees of all surveillance activity on a semiannual basis. These committees are the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence.
Acknowledgements
We are grateful to Geoffrey Greiveldinger for many helpful suggestions on an earlier draft of this report.
In <199309271635.AA01892@eff.org>, Shari Steele wrote...
Date: Fri, 24 Sep 1993 16:31:55 -0400 (EDT) From: denning@cs.georgetown.edu (Dorothy Denning) Subject: Wiretap Article To: ssteele@eff.org Cc: denning@guvax.acc.georgetown.edu Errors-To: Postmaster@cs.georgetown.edu Content-Transfer-Encoding: 7BIT
combination, 289 other)
(4) major offenses involved (634 narcotics, 90 racketeering, 66 gambling, 35 homicide/ assault, 16 larceny/theft, 9 kidnapping, 8 bribery, 7 loansharking/usury/extortion, 54 other)
(5) average number of (a) persons intercepted (117), (b) interceptions (1,861), and (c) incriminating intercepts (347) per order where interception devices were installed
(6) average cost of interception ($46,492)
(7) type of surveillance used for the 846 interceptions installed (632 telephone, 38 microphone, 113 electronic, 63 combination)
(8) number of persons arrested (2,685) and convicted (607) as the result of 1992 intercepts
(9) activity taking place during 1992 as the result of intercepts terminated in years 1982-1991, including number of arrests (1211), trials (280), motions to suppress that are granted (14), denied (141), and pending (37), and convictions (1450) (there is a lag between interceptions, arrests, and convictions, with many arrests and most convictions associated with a wiretap that terminated in one year taking place in subsequent years)
Most of the above data is broken down by jurisdiction. Of the 919 authorized intercepts, 340 (37%) were federal. New York State had 197, New Jersey 111, Florida 80, and Pennsylvania 77. The remaining 114 intercepts were divided among 18 states, none of which had more than 17 intercepts. During the past decade, the average number of authorized intercepts per year has been about 780.
Individual law enforcement agencies also require internal reports. For example, the New York Sate Police requires that each week, the Troop or Detail Captain prepare a report summarizing the status of all eavesdropping activity within the unit, including the productivity and plans for each electronic surveillance installation and a brief synopsis of pertinent activity. This is sent to the New York State Police Division Headquarters Captain who prepares a report summarizing the status of all eavesdropping installations.
One of the reasons for the significant amount of post wiretap reporting is to provide a substantial record for legislatures when considering whether or not to reenact or modify wiretap statutes.
3. FISA Interceptions
Title 50 USC, Sections 1801-1811, the Foreign Intelligence Surveillance Act (FISA) of 1978, covers electronic surveillance for foreign intelligence purposes (including counterintelligence and counterterrorism). It governs wire and electronic communications sent by or intended to be received by United States persons (citizens, aliens lawfully admitted for permanent residence, corporations, and associations of U.S. persons) who are in the U.S. when there is a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; nonconsensual wire intercepts that are implemented within the U.S.; and radio intercepts when the sender and all receivers are in the U.S. and a warrant would be required for law enforcement purposes. It does not cover intercepts of U.S. persons who are overseas (unless the communications are with a U.S. person who is inside the U.S.). Electronic surveillance conducted under FISA is classified.
FISA authorizes electronic surveillance of foreign powers and agents of foreign powers for foreign intelligence purposes. Normally, a court order is required to implement a wiretap under FISA. There are, however, two exceptions. The first is when the communications are exclusively between or among foreign powers or involve technical intelligence other than spoken communications from a location under the open and exclusive control of a foreign power; there is no substantial risk that the surveillance will acquire the communications to or from a U.S.person; and proposed minimization procedures meet the requirements set forth by the law. Under those conditions, authorization can be granted by the President through the Attorney General for a period up to one year. The second is following a declaration of war by Congress. Then the President, though the Attorney General, can authorize electronic surveillance for foreign intelligence purposes without a court order for up to 15 days.
Orders for wiretaps are granted by a special court established by FISA. The court consists of seven district court judges appointed by the Chief Justice of the United States. Judges serve seven-year terms.
3.1 Application for a Court Order
Applications for a court order are made by Federal officers and require approval by the Attorney General. Each application must include:
(1) the Federal officer making the application;
(2) the Attorney General's approval;
(3) the target of the electronic surveillance;
(4) justification that the target is a foreign power or agent of a foreign power (except no U.S person can be considered a foreign power or agent thereof solely based on activities protected by the First Amendment) and that the facilities or places where the surveillance is be directed will be used by the same;
(5) the proposed minimization procedures, which must meet certain requirements to protect the privacy of U.S. persons;
(6) the nature of the information sought and type of communications subjected to surveillance;
(7) certification(s) by the Assistant to the President for National Security Affairs or other high-level official in the area of national security or defense (Presidential appointee subject to Senate confirmation) that the information sought is foreign intelligence information and that such information cannot reasonably be obtained by normal investigative methods;
(8) the means by which the surveillance will be effected;
(9) the facts concerning all previous applications involving the same persons, facilities, or places;
(10) the period of time for the interception (maximum 90 days or, when the target is a foreign power, one year);
(11) coverage of all surveillance devices to be employed and the minimization procedures applying to each.
Some of the above information can be omitted when the target is a foreign power.
Within the FBI, the process of applying for a court order under FISA is as exacting and subject to review as under Title III. The main differences are that under FISA, the FBI Intelligence Division is involved rather than the Criminal Investigative Division, the DOJ Office of Intelligence Policy and Review (OIPR) is involved rather than either the U.S. Attorney's Office or the DOJ Criminal Division, and the application is approved by the Attorney General (or Acting Attorney General) rather than by a lower DOJ official.
3.2 Issuance of a Court Order
Before a judge can approve an application, the judge must determine that the authorizations are valid; that there is probable cause to believe that the target of the electronic surveillance is a foreign power or agent of a foreign power and that the facilities or places where the surveillance is be directed will be used by the same; and that the proposed minimization procedures meet the requirements set forth in the law. If the judge approves the application, an order is issued specifying the relevant information from the application and directing the communication carrier, landlord, custodian, or other specified person to furnish all necessary information, facilities, and technical assistance and to properly maintain under security procedures any records relating to the surveillance.
3.3 Emergencies
In an emergency situation, the Attorney General or designee can authorize the use of electronic surveillance provided the judge is notified at the time and an application is made to the judge within 24 hours. If such application is not obtained, then the judge notifies any U.S. persons named in the application or subject to the surveillance, though such notification can be postponed or forgone upon showing of good cause.
3.4 Use of Intercepted Communications as Evidence
Like Title III, FISA places strict controls on what information can be acquired through electronic surveillance and how such information can be used. No information can be disclosed for law enforcement purposes except with the proviso that it may only be used in a criminal proceedings under advance authorization from the Attorney General. If the government intends to use such information in court, then the aggrieved person must be notified in advance. The person may move to suppress the evidence.
3.5 Reports
Each year, the Attorney General must give the Administrative Office of the United States Courts (AO) a report of the number of FISA applications and the number of orders and extensions granted, modified, or denied. In 1992, there were 484 orders. Since 1979, there has been an average of a little over 500 FISA orders per year.
Because intercepts conducted under FISA are classified, detailed information analogous to that required under Title III is not reported to the AO, nor made available to the public. However, records of Attorney General certifications, applications, and orders granted must be held for at least 10 years, and the Attorney General must inform two Congressional oversight committees of all surveillance activity on a semiannual basis. These committees are the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence.
Acknowledgements
We are grateful to Geoffrey Greiveldinger for many helpful suggestions on an earlier draft of this report.
THIS IS THE SORT OF NOISE THAT'S BETTER KEPT OFF THE LIST. Private messages should be sent via private email. stig ;; __________________________________________________________________________ ;; Stig@netcom.com netcom.com:/pub/stig/00-PGP-KEY ;; It's hard to be cutting-edge at your own pace... 32 DF B9 19 AE 28 D1 7A ;; Bullet-proof code cannot stand up to teflon bugs. A3 9D 0B 1A 33 13 4D 7F
Stig says:
THIS IS THE SORT OF NOISE THAT'S BETTER KEPT OFF THE LIST. Private messages should be sent via private email.
stig
What? This is the fist bit of substantive stuff on a list filled with noise for months. What do you think the list is for? To provide a place for conspiracy theorists to jerk each other off? Ms. Steele, it was perfectly appropriate. This is exactly the sort of thing the list is for. Perry
participants (3)
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Perry E. Metzger -
ssteele＠eff.org -
stig＠netcom.com