Foreign Intelligence Surveillance Act
James G. McAdams, III
Senior Legal Instructor
The Foreign Intelligence Surveillance Act (FISA)1 was enacted in 1978. This legislation was the Congressional response to the exposure during multiple Committee hearings of previous abuses of U.S. persons’ privacy rights by certain components of the United States government. Those abuses had occurred, according to the government, as part of its efforts to counter purported threats to national security.
Unquestionably, such threats existed in and before 1978; beyond peradventure, however, they pale in comparison to the threats to national security that the United States currently faces. Those threats bear the face of terrorism, primarily foreign but domestic as well. Though FISA is not a legally usable tool for combating domestic terrorism, its electronic surveillance and physical search authority are legal and very effective methods for monitoring the activities of foreign powers and agents of foreign powers while they operate within the United States. Increasingly, indeed, overwhelmingly, the current objective of such operational activities is to thwart terrorist acts.
Terrorism, as that term is used in this writing, is the use of violent acts by an organization that is not a national government for the ultimate purpose of compelling a target government to change its policy by creating fear in the minds of the populace served by the target government.2 More recently, the preferred form of terrorism is the suicide bomber. Perhaps the most baffling and troubling element of this form of terrorism, at least to the Western mind, is the terrorist’s willingness to die. Such willingness magnifies the coercive effects of these acts because, quite simply, those acts virtually always result in greater death and destruction than other forms of force. It also provides a strong message to the targeted populace and its government of the likelihood of more pain and suffering if the target government fails to accede to the terrorist organization’s demands. Finally, suicide terrorists have demonstrated that they are not deterred by traditional taboos concerning targets (e.g., children) and that they are very deft at increasing the recruitment base. Both serve to create further concerns in the targeted government about the cost of future resistance to the terrorists’ demands.3
In the face of the foregoing, it is no wonder then that our Congress has recently enhanced the ability of counter terrorism agents to use FISA in the effort to discover and thereby thwart acts of terrorism aimed at our country. The following is offered as an historical context in which to view FISA as well as a summary of how FISA has evolved over the past quarter century of its existence as a tool not just to thwart terrorism but more generally as an effective means to gather foreign intelligence.
The Birth of FISA
Historically, Presidents steadfastly claimed an inherent constitutional authority to conduct warrantless electronic surveillances for non-criminal, national security purposes. This authority was grounded in the mandate found in Article II of the Constitution for the Executive to “preserve, protect and defend the Constitution of the United States.” This position was accorded great judicial and congressional deference for many years, but that began to change in the early 1970’s. In 1972, the Supreme Court decided the case of United States v. United States District Court, better known as the “Keith” case, in which the Court considered the legality of an Attorney General authorized warrantless electronic surveillance of a U.S. citizen accused of bombing a CIA building. The Court rebuffed the government’s entreaty to recognize a foreign intelligence exception to the per se warrant requirement, holding that the Fourth Amendment prohibited warrantless surveillance directed at domestic threats to U.S. national security. The Court expressly refused, however, to decide the legality of warrantless surveillances where “foreign powers or their agents” were involved, leaving open the issue of the Executive’s authority to direct such operational activities at those persons or entities. The Court also strongly urged the Congress to provide a judicially-manageable standard applicable to electronic surveillances conducted for national security purposes.
The Executive’s use of electronic eavesdropping was again thrust into the public and congressional eye during the Watergate scandal. Revelations during several Senate Committee hearings4 detailed warrantless privacy infringements, both by electronic surveillance and physical search, of U.S. citizens, including a U.S. congressman, some congressional staffers, anti-war protesters, and the late Martin Luther King, Jr. The Church Committee, in its final report, characterized the state of the law in this area as “riddled with gaps and exceptions”, and echoed the call of the “Keith” court for Congress to create appropriate guidelines for the exercise of foreign intelligence surveillances.
Congress soon responded. In 1978, it presented the Foreign Intelligence Surveillance Act to President Carter, who signed it into law. That law established, first, that non-criminal electronic surveillances within the United States were only permissible for the purpose of collecting foreign intelligence and/or foreign counterintelligence. Second, it identified foreign powers and agents of foreign powers as the entities and persons that could be targeted for electronic surveillance. Third, it articulated a probable cause standard that had to be met before an electronic surveillance was permissible. Fourth, the Act established the Foreign Intelligence Surveillance Courts (FISC), one at the district court level for initial review of surveillance applications, and one at the appellate level should the government appeal a district level denial of an application. Finally, the Act established the only circumstances under which an electronic surveillance could lawfully be conducted in the United States for the purpose of collecting foreign intelligence or foreign counterintelligence:
(1) pursuant to an order issued by the FISC; or
(2) in emergency circumstances, pursuant to Attorney General approval, so long as an application is thereafter made to the FISC within 24 hours.
FISA identifies two categories of potential targets for surveillance under FISA. The first category is foreign powers. A foreign power is –
(1) a foreign government,
(2) a diplomat, other representative or employee of a foreign government,
(3) a faction of a foreign nation that is not substantially composed of U.S. persons,
(4) an entity openly acknowledged by a foreign government to be directed and controlled by it, or
(5) a group engaged in international terrorism or activities in preparation therefore.
A second category of FISA targets are agents of foreign powers. An agent of a foreign
power is –
(1) anyone, other than a U.S. person, who acts in the United States as an officer or employee of a foreign power, or
(2) anyone who acts as part of or in support of a foreign power’s efforts to engage in clandestine intelligence gathering activities in the U.S.
An agent of a foreign power is also anyone, including a U.S. person, who –
(1) knowingly engages in clandestine intelligence gathering activities for a foreign power which activities constitute a violation of U.S. criminal statutes;
(2) knowingly engages in sabotage or international terrorism, or activities in reparation therefore, on behalf of a foreign power.
For purposes of the Act, a U.S. person is defined as any of the following:
(1) a citizen of the U.S.;
(2) an alien lawfully admitted for permanent residence;
(3) an unincorporated association a substantial number of which are U.S. citizens or aliens lawfully admitted for permanent residence; or
(4) a U.S. corporation.
Under the Act, international terrorism is defined as:
(1) activities that involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the U.S. or of any state, or that would be a criminal violation if committed within the jurisdiction of the United States or any State;
(2) acts that appear to be intended to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by assassination or kidnapping; and
(3) activities that occur totally outside the U.S., or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum.
Expansion of FISA Authority
1. Physical Searches
In 1995, FISA was expanded by Congress to include physical searches as well as electronic surveillance.5 That authority permits the FISC, upon the requisite probable cause showings, to enter an order permitting the physical search of certain premises upon a probable cause showing that
(1) the target of such search is a foreign power or an agent of a foreign power;
(2) the premises to be searched contains foreign intelligence information; and
(3) the premises to be searched is owned, used, possessed by, or is in transit to or from a foreign power or agent of a foreign power.
The new physical search provisions also recognized the President’s limited authority to authorize physical searches to acquire foreign intelligence without a court order. Specifically, acting through the Attorney General, the President may authorize for periods up to one year the search of any premises if the Attorney General certifies to the FISC that the premises or property to be searched is being used or controlled exclusively by a foreign power, and that there is no substantial likelihood that the search will involve the premises, information, material, or property of a U.S. person.
2. Pen Registers/Trap and Trace Devices
In 1998, Congress further amended FISA to permit the installation and use of pen register and trap and trace devices in the investigation of international terrorism and clandestine intelligence activities.6 Applications for the installation and use of such devices must be made by the Attorney General or a designated attorney for the government and must include the applicant’s certification that the information likely to be produced through the use is relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities. This new authority extends not only to the tracking of telephone calls but also to the tracking of any form of electronic communication, such as e-mails. The new section includes an admonishment, however, that specifically prohibits the investigation of U.S. persons for activities that are protected by the first amendment to the U.S. Constitution.
FISA and Law Enforcement
Some may ask, with ample justification, what possible relevance could any of the foregoing have to a law enforcement officer, federal or otherwise. The simple answer is that FISA wire taps and searches often result in the acquisition of evidence of a crime.
A case in point is the “Brothers to the Rescue” (BTTR) case that was prosecuted a few years ago by the United States Attorney’s Office in the Southern District of Florida. BTTR was a group of Cuban expatriates and sympathizers in Miami who, among other things, ran air and sea patrols in the Straits of Florida to assist Cuban rafters attempting to escape Communist Cuba to make it safely to Florida. Under U.S. policy then, and now, Cubans who are successful in making landfall in Florida are paroled into the country while those interdicted before reaching Florida are repatriated to Cuba. In the BTTR case, a plane being operated by that group in international air space was shot down by a Cuban Mig. This occurred at a time when the U.S. government had identified several individuals living and working in Miami who were Cuban agents actively engaged in spying on Miami Cubans who were active in the anti-Castro movement in that city. In light of their status as agents of a foreign power, Cuba, the U.S.
counter-intelligence community had several FISA wiretaps directed at them. As the result, the U.S. acquired some potentially useful evidence that would be relevant to the prosecution of the Cuban agents. When a FISA wiretap or search reveals evidence of a crime, the FBI is obligated under both Executive Order 123337 and the terms of the Foreign Intelligence Surveillance Act, to take reasonable steps to pass such evidence to the law enforcement community for use in investigating and/or prosecuting that case as a criminal matter.
1. The “Wall”
There is, however, a host of issues attendant to that process. One of considerable significance, with which many in the law enforcement and foreign counterintelligence (FCI) communities have struggled for many years, is this: under what circumstances may a FCI investigation in which a FISA wiretap is used be maintained when the most dramatic and practical use of the information obtained from the wire is evidence of a crime.
Since virtually immediately after its being signed into law, the majority of the FCI and foreign intelligence (FI) communities viewed FISA as being subject to the requirement that the primary purpose behind the use of wiretaps or searches executed under its authority be for the acquisition of FCI or FI. Conversely, the belief was that FISA could not be used as an investigative tool if the primary purpose of the investigation was, for example, the criminal prosecution of the target, even if the criminal prosecution would be for the crime of espionage.
Indeed, the constitutionality of FISA was challenged under either or both of the Fourth and Fifth Amendments in several cases in which information acquired through a FISA electronic surveillance was used in a subsequent criminal prosecution. The courts rebuffed those challenges, however, because the government was able to demonstrate that, throughout the FISA surveillances, the purpose thereof had been to secure foreign intelligence information rather than being primarily oriented towards assisting a criminal investigation or prosecution.8 Nevertheless, these cases served as the genesis of the so-called “primary purpose” test and as the catalyst for the view that foreign intelligence investigations and criminal investigations had to be kept separate from each other.
During the years following these challenges, the Department of Justice (DOJ) and the intelligence community developed a practice in support of the “primary purpose” test aimed at foreclosing the perception that FISA authority was used primarily towards assisting a criminal investigation or to circumvent the more strenuous requirements imposed by federal criminal law9 in order to obtain a wiretap order in a criminal investigation. That practice eventually became policy, a policy that was reduced to writing by DOJ in 1995, and was commonly referenced as “the wall.” Indeed, the “wall” crept into the minimization and application procedures approved by the Attorney General for FISA intercepts such that by late 1995 all FISA applications contained sufficient information to justify the FISC’s finding that the “primary purpose” of any particular electronic intercept would be the acquisition of foreign intelligence.
An inescapable consequence of “the wall” was the inhibition of the sharing of information between the intelligence and law enforcement communities. In the 1990’s and into the early 2000’s, the two communities attempted to resolve their differences and concerns over this policy with the express purpose of improving information sharing between the two communities. While serving to highlight the difficulties of changing long-ingrained cultures, those efforts were largely unsuccessful, however.
2. The USA PATRIOT Act
That reticence notably lessened following the events of September 11, 2001, and the October 2001 enactment of the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, or the USA PATRIOT Act.10 The Act consists of ten separate Titles and 156 sections, and which effected modifications of numerous existing federal statutes and rules. In passing the Act, the President and Congress articulated four primary purposes:
(1) Enhancing the federal government’s capacity to share intelligence,
(2) Strengthening the criminal laws against terrorism,
(3) Removing obstacles to investigating terrorism, and
(4) Updating the law to reflect new technology.
In pursuit of those objectives, the Act, among other things, amended the requirement that the applicant for a FISA order certify that the purpose of the surveillance is to obtain foreign intelligence to require only that the applicant certify that a significant purpose of the surveillance is to obtain foreign intelligence.11
3. The “Wall” Falls
In May 2002, the Office of Intelligence Policy and Review (OIPR), the component of the Department of Justice (DOJ) that oversees electronic surveillance and search warrant applications submitted to the Foreign Intelligence Surveillance Court (FISC), sought to have that Court vacate the minimization and “wall” procedures as to international terrorism cases that had then been in place for some seven years. To be sure, much of the driving force behind that effort was from the events of 9/11 and the objective of eliminating real and perceived impediments to information sharing between the intelligence and law enforcement communities.
In particular, the government sought approval to allow criminal prosecutors “to advise FBI intelligence officials concerning ‘the initiation, operation, continuation, or expansion of FISA searches or surveillance.’” 12 The FISC interpreted such request to be to obtain the Court’s blessing of the use of FISA “primarily for a law enforcement purpose.”13
The FISC granted a portion of DOJ’s motion but explicitly declined to remove the “wall” protecting raw FISA materials from access by the criminal sections of the DOJ and FBI. Explaining its reasoning, the FISC said its objective was to prevent the law enforcement officers from becoming “de facto partners in FISA surveillances and searches” while permitting extensive sharing of information between such investigations.14
Advising FBI intelligence officials on the initiation, operation, continuation or expansion of FISA surveillances and searches of U.S. persons means that criminal prosecutors will tell the FBI when to use FISA (perhaps when they lack probable cause for a title III electronic surveillance), what techniques to use, what information to look for, what information to keep as evidence and when use of FISA can cease because there is enough evidence to arrest and prosecute. The 2002 minimization procedures give the Department’s criminal prosecutors every legal advantage conceived by Congress to be used by U.S. intelligence agencies to collect foreign intelligence information,… based on a standard that the U.S. person is only using or about to use the places to be surveilled or searched, without any notice to the target unless arrested and prosecuted, and, if prosecuted, no adversarial discovery of the FISA applications and warrants. All of this may be done by use of procedures intended to minimize collection of U.S. person information, consistent with the need of the United States to obtain and produce foreign intelligence information. If direction of counterintelligence cases involving the use of highly intrusive FISA surveillances and searches by criminal prosecutors is necessary to obtain and produce foreign intelligence information, it is yet to be explained to the Court.15
The FISC concluded its review by substituting its own minimization standards for some of those proposed by the Attorney General. Those provisions allowed the counterintelligence components of DOJ and the FBI to work in a coordinated manner with their criminal component counterparts to protect against hostile acts and clandestine intelligence activities by foreign powers. On the other hand, the Court’s substitute language prohibited action by the counterintelligence component at the recommendation or request of the criminal component to initiate, operate, continue, or expand FISA surveillances or searches. In addition, the Court directly foreclosed the use of FISA procedures to enhance criminal prosecutions.16 DOJ did not appeal the FISC’s memorandum opinion and order. Rather, it awaited the FISC’s application of the new minimization standards and the imposition, consistent therewith, of restrictions on the government’s use and sharing of FISA information. That occurred during the summer of 2002 when DOJ sought the FISC’s approval for a renewal of electronic surveillance authority in a particular case. DOJ’s application sought to have the Court impose the Attorney General’s new minimization standards; consistent with its earlier memorandum opinion, however, the FISC rejected DOJ’s request and retained the more-restrictive earlier minimization standards. DOJ appealed that order to the U.S. Foreign Intelligence Surveillance Court of Review. This appeal constituted the first time ever that this Court had been called to meet.
The Court of Review issued a per curiam opinion on November 18, 2002.17 In that opinion, the Court of Review reversed the FISC’s order and remanded the case to the FISC for further proceedings consistent with the Court of Review’s opinion. Though DOJ was not appealing the FISC’s May 2002 decision and thus that decision was not before the Court of Review, the latter Court made it clear in its opinion that the lower court’s earlier decision was, in fact, what the government was challenging.18
The Court of Review noted that DOJ had raised several arguments. First, the FISC’s conclusion that FISA could only be used where the government’s primary purpose in doing so was the acquisition of foreign intelligence found no support either in the statute or in its underlying legislative history. Second, even if the primary purpose requirement was based in the statute, the USA Patriot Act eliminated that requirement and, thus, the FISC’s order amounted to “an end run” around the USA Patriot Act. Third, the minimization procedures imposed by the FISC constituted a constitutionally impermissible intrusion into DOJ’s executive authority. Finally, the Fourth Amendment did not require that the primary purpose test be met in order to engage in the operational activities otherwise allowed under FISA.19 The Court of Review concluded that the FISC had erred in that it misconstrued its authority under FISA. More particularly, the Court noted no authority within FISA for the FISC’s reliance on the “minimization procedures” that FISA requires as a basis “to limit criminal prosecutors’ ability to advise FBI intelligence officials on the initiation, operation, continuation, or expansion of FISA surveillances to obtain foreign intelligence information, even if such information includes evidence of foreign intelligence crime.”20 The Court of Review also found that the FISC had erred in refusing to consider the significance of the Patriot Act’s amendments to FISA. In particular, the Court stated that, while the statute, as amended, only required certification by DOJ that “ a significant purpose” of a given FISA surveillance or search be to gather foreign intelligence, the FISC’s order, in effect, retained the earlier threshold, that is, that “the purpose” of the operational activity must the to gather foreign intelligence. This, the Court found, ran contrary to Congress’ intent, evidenced by Members’ statements during floor debates about amending the Act, to reduce existing barriers between law enforcement and foreign intelligence gathering where the target of proposed surveillance is both a potential source of valuable intelligence and the potential target of a criminal prosecution.21 Indeed, the Court stated that, given Congress’ explicit authorization of consultation and coordination between criminal and foreign intelligence components within the government concerning particular instances of the use of FISA, it necessarily follows that either of those two components may take the lead in the conduct of the underlying investigation “[s]o long as the government entertains a realistic option of dealing with the agent [of the foreign power] other than through criminal prosecution.22 The Court of Review added, however, that its opinion must not be construed to allow the use of FISA to investigate ordinary crimes that are not intertwined with foreign intelligence crimes.23
Thus, “the Wall” tumbled into a grave well dug for it by the Court of Review. Future criminal defendants predictably will mount de facto “wall”-based challenges of FISA-collected evidence in their cases, citing the intelligence purpose behind that collection was only “significant” or that law enforcement was attempting to circumvent the Fourth Amendment. Otherwise, however, it seems that we have mercifully seen the last of it.
Disclosure and Use of FISA Information
Disclosure by a federal officer or employee of information acquired pursuant to one of the provisions of FISA must be for a lawful purpose and is only permitted where the disclosure is accompanied by an admonishment that use of FISA information or FISA-derived information in a criminal proceeding may only occur with advance authorization of the Attorney General.
When such use is intended, the government, before the trial or other proceeding at which disclosure is to be made, must give notice of its intent to the aggrieved person and to the Court.24
An aggrieved person may thereafter move to suppress the FISA-related evidence based on either the argument that the FISA information was unlawfully acquired, or that the government the government in some way acted outside of the FISC order. If the court grants that motion, the government must either appeal or refrain from using any evidence that is subject to the court’s order. Denial of the motion by the court will allow the government to use the FISA evidence.
Under FISA as it existed prior to the enactment of the USA Patriot Act, the FBI Director or his designee was authorized to apply for an order from the FISC requiring the production of business records held by a common carrier, public accommodation facility, physical storage facility, or vehicle rental facility to release records in its possession where such records were relevant to an ongoing investigation to gather foreign intelligence or concerning international terrorism. As amended by the USA PATRIOT ACT, FISA authority to access business records was substantially broadened and now may, with FISC approval, compel production of “any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.25
It is important to re-emphasize one of the requirements of FISA that was not changed by the USA PATRIOT Act: the Attorney General must approve in advance any public disclosure of FISA materials, including the use of such materials as evidence in a criminal case – no exceptions. Even with the Attorney General’s approval of the use of FISA-obtained evidence, the FBI will remain adamant that it not be required to show a FISA application to defense counsel. In the 21 years since FISA was enacted, the government has never publicly divulge a FISA application. In order to ensure that a FISA wire tap was lawful, the application is submitted ex parte, en camera to the judge in the criminal case in which the FISA take will be offered. If the judge is satisfied that the FISA application is sufficiently comprehensive for him to decide its legal adequacy, he will enter his ruling without disclosure of the application itself to the defense. If the trial judge is not so satisfied, the statute then requires disclosure of the application only if the government nevertheless intends to proceed. That, however, has never happened.
FISA has since its enactment been a bold and productive tool in this country’s fight against the efforts of foreign governments and their agents to engage in intelligence-gathering aimed at the U.S. government, either to ascertain its future policy or to effect its current policy, to acquire proprietary information not publicly available, or to engage in disinformation efforts. With the enactment of the USA PATRIOT Act FISA has been expanded and broadened to make it a useful tool in exposing and combating foreign terrorist groups’ efforts to target the United States. In recognition that such acts cannot be neatly or easily separated into intelligence versus criminal cases, the FISA Court of Review has clarified the threshold that must be met in order for FISA to be used. The Court eliminated the “primary purpose” doctrine, under which no FISA-related operational undertaking could occur unless it was primarily intended to obtain foreign intelligence. Rather, the Court, relying on its understanding of the Congressional intent behind the enactment of FISA and the wording of FISA itself, held that a FISA-related operation is justified where “a significant purpose” of such operation is to obtain foreign intelligence. This has cleared away much of the detritus that developed around FISA that had historically impeded the use of FISA in criminal investigations and the use of FISA information in criminal prosecutions.
Jim retired from the DoJ in 2006 after a 25 year career with the United States Attorney’s Office in the Southern District of Florida. During that time, he served as an AUSA, the Chief of the Narcotics Division, Executive AUSA, Acting USA, Managing AUSA of the West Palm Beach Branch Office, and Senior Litigation Counsel. In 1994 Attorney General Janet Reno appointed Jim to be co-chair of a Joint Intelligence Community and Law Enforcement Working Group. In June 1995 Attorney General Reno appointed Jim as her Counsel for Intelligence Policy. In that position, he served as liaison with the various components of the Intelligence Community and also oversaw all submissions of wiretap and physical search applications by the FBI and NSA to the Foreign Intelligence Surveillance Court. Jim joined the Legal Division staff as a Senior Instructor in 2006.
1 50 U.S.C. § 1801 et seq.
2 See Alex P. Schmid and Albert J. Jongman, Political Terrorism (New Brunswick, NJ: Transaction Books, 1988) and the lengthy discussion in the introduction to Patterns of Global Terrorism (Washington: U.S. Department of State, 2001).
3 See Robert A. Pape, Suicide Terrorism and Democracy – What We’ve Learned Since 9/11 (Cato Institute, Policy Analysis, November 2006).
4 These hearings were conducted under the leadership of then Senator Frank Church of Idaho, and they later became known as the “Church Committee” hearings. The committee’s final report, delivered on April 26, 1976, detailed the lawlessness of U.S. intelligence agencies and the need for Congress to assert itself to stop that lawlessness through the Constitutional system of checks and balances on Executive powers. See Frank Church and the Abyss of Warrantless Wiretapping, by John Nichols, The Nation, April 26, 2006.
5 50 U.S.C. §§ 1821-1829.
6 50 U.S.C. §§ 1841-1846.
7 E.O. 12333, Sec. 2.6. President Reagan signed EO 12333 on December 4, 1981. Its complete text appears at 46 FR 59941, 3 CFR, 1981 Comp., p. 2.
8 See, e.g., United States v. Troung Dinh Hung, 629 F.2d 908 (4th Cir. 1980); United States v. Pelton, 835 F.2d 1067, 1074-76 (4th Cir. 1987), cert. denied, 486 U.S. 1010 (1988)(electronic surveillance under FISA is constitutional if primary purpose of surveillance throughout surveillance was gathering of foreign intelligence; primary purpose is not changed merely because government anticipates using fruits of FISA surveillance in criminal prosecution).
9 The Omnibus Crime Control Act of 1968, also known as “Title III,” at 18 U.S.C. § 2510 et seq.
10 P.L. 107-56 (October 27, 2001).
11 50 U.S.C. § 1804(a)(7)(B).
12 In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611, 623 (U.S.
13 Id. at 623.
14 Id. at 620. The Court went on to explain that a significant part of its concern over lowering the wall was the significant number of past instances where FISA applications had included false, inaccurate or misleading information regarding information sharing or compliance with “wall” procedures by the FBI.
15 Id. at 624. The FISC expressly declined to reach the question of whether FISA may be used primarily for law enforcement purposes. Rather, its focus was upon what minimization procedures should be approved. Id. at 615 n.2.
16 Id. at 625.
17 In re Sealed Case, 310 F.3d 717 (U.S. Foreign Intell. Surveil. Ct. Rev. 2002).
18 Id. at 721.
19 Id. at 722 & n.6.
20 Id. at 731.
21 Id. at 732-33. See also, 147 Cong. Rec. S10992 (Oct. 25, 2001), S10591 (Oct. 11, 2001), and S 11021 (Oct. 25, 2001).
22 Id. at 734-35.
23 Id. at 736.
24 50 U.S.C. §§ 1801(k), 1825(d), and 1841(3) provide definitions of “aggrieved person.” Essentially, it means any person whose conversation, property, or electronic data has been intercepted pursuant to the authority of the FISC.
25 50 U.S.C. § 1861(a)(1).