Wiretap Article (2 of 2)

[Shari Steele]

>Date: Fri, 24 Sep 1993 16:31:55 -0400 (EDT)
>From: denning at cs.georgetown.edu (Dorothy Denning)
>Subject: Wiretap Article
>To: ssteele at eff.org
>Cc: denning at guvax.acc.georgetown.edu
>Errors-To: Postmaster at 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.
>
>
>