Chapter 1 Introduction What are the issues of the day?

The Primary Purpose Doctrine

What was evidence that the nature of the search changed in Truong?

What does the government need to do at this point if it wants to continue the search?

What if the national security search shows up unrelated crimes by persons not involved in national security activities?

For example, sellers of clandestine credit card readers who sell to terrorists

Chapter 19 - Congressional Authority for National Security Surveillance

Part I

Smith v. Maryland United States Supreme Court, 442 U.S. 735 (1979)

What is a pen-register and why did the police use them?

Are the customers of the phone company aware that this information was being collected by the phone company?

How is a pen register different from a Katz wiretap?

Why isn't the installation of the pen-register a search?

What is the search?

United States v. Miller, 425 U.S. 435 (1976)
Access to Bank Records

‘‘The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. . . . This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.’’

Expectation of Privacy

Why did the defendant not have an expectation of privacy?

Why is the dissent concerned about basing the 4th amendment on reasonable expectations of privacy?

Has the court adopted the dissent's view over time?

Subsequent Legislation

What sort of warrant requirement did Congress enact?

Is this like an administrative search?

What does this standard about information provided to third parties tell us about social networking?

Information other than conversations that come from Internet and cell phone use?

Background for FISA

When was FISA passed?

What abuses in the Church Report drove the passage of FISA?

How about the concentration camp list?

United States v. Duggan, 743 F.2d 59 (1984)

What organization were the defendants part of?

What were they objecting to?

Who does FISA apply to?

Are Defendants Agents of Ireland?

What part of the definition of foreign power in FISA covers defendants?

How does this expand the traditional notion of a foreign power as a state?

How big does a group have to be to be a FISA foreign power?

FISA Definitions

What is a United States person?

What is the relevant definition of foreign intelligence?

What is the definition of international terrorism?

How does this definition try to differentiate ordinary crime?

FISA Warrants

What must the government show to get a FISA warrant?

What else must the government do if the target is a United States person?

What must the judge find that there is probable cause to support?

U.S. Persons

What additional finding must the judge make if the target is a US person?

What does this implicitly tell you about the review standard for non-US persons?

How does this differ from the requirements for a criminal law warrant?

The Real Meaning of FISA

Core question - Does FISA delineate 4th Amendment standards for foreign intelligence, or does FISA establish the standards for deciding that intelligence is outside the scope of the 4th amendment?

What did Congress think it was doing?

Given what we now know about the application of the constitution to foreigners outside of the US, if the judge finds that the intelligence is directed at foreigners outside the US, does the government need FISA at all?

In that situation, what is the role of FISA?

Where is FISA necessary?

The Holding

What did the judge hold about the FISA balancing of 4th amendment protections and the need to do foreign intelligence?

What about defendant's claims that foreign terrorism does not implicate US national security interests?

Why does this not really matter if all of the intelligence gathering is done outside the US on foreign nationals?

Standard for Reviewing the FISA Judge

How does the legislative history indicate that the appeals court should review the findings of the FISA judge?

Does this look like classic agency deference, rather than the review of a criminal law warrant?

What did the Senate report say about the overlap between foreign intelligence and criminal investigations?

The Primary Purpose Doctrine

What are terrorists usually prosecuted for?

What is the real problem that the primary purpose doctrine addresses?

When may the judge disclose supporting documents for the FISA warrant to the defense?

What is the standard for disclosing documents to the defense in the ordinary criminal proceedings?

FISA

What types of electronic surveillance does FISA contemplate?

Does FISA allow video surveillance?

How was the pen register language modified after 9/11 to include email?

What else might this allow the feds to collect?

How might an automatic out of office message get you in trouble under this law?