Resolution resolved: The United States federal government should substantially curtail its domestic surveillance. Violations
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DOMESTIC SURVEILLANCEGATHERING INTELLIGENCE ON US PERSONS IS DOMESTIC SURVEILLANCEDomestic surveillance is info gathering on US personsIT Law Wiki 15 IT Law Wiki 2015 http://itlaw.wikia.com/wiki/Domestic_surveillance Definition Edit Domestic surveillance is the acquisition of nonpublic information concerning United States persons. Domestic surveillance is intelligence gathering on US personsSmall 8 MATTHEW L. SMALL. United States Air Force Academy 2008 Center for the Study of the Presidency and Congress, Presidential Fellows Program paper "His Eyes are Watching You: Domestic Surveillance, Civil Liberties and Executive Power during Times of National Crisis" http://cspc.nonprofitsoapbox.com/storage/documents/Fellows2008/Small.pdf Before one can make any sort of assessment of domestic surveillance policies, it is first necessary to narrow the scope of the term “domestic surveillance.” Domestic surveillance is a subset of intelligence gathering. Intelligence, as it is to be understood in this context, is “information that meets the stated or understood needs of policy makers and has been collected, processed and narrowed to meet those needs” (Lowenthal 2006, 2). In essence, domestic surveillance is a means to an end; the end being intelligence. The intelligence community best understands domestic surveillance as the acquisition of nonpublic information concerning United States persons (Executive Order 12333 (3.4) (i)). With this definition domestic surveillance remains an overly broad concept. This paper’s analysis, in terms of President Bush’s policies, focuses on electronic surveillance; specifically, wiretapping phone lines and obtaining caller information from phone companies. Section f of the USA Patriot Act of 2001 defines electronic surveillance as: [T]he acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
US PERSONS DEFINEDUS person definedJackson et al 9 Brian A. Jackson, Darcy Noricks, and Benjamin W. Goldsmith, RAND Corporation The Challenge of Domestic Intelligence in a Free Society RAND 2009 BRIAN A. JACKSON, EDITOR http://www.rand.org/content/dam/rand/pubs/monographs/2009/RAND_MG804.pdf 3 Federal law and executive order define a U.S. person as “a citizen of the United States, an alien lawfully admitted for permanent residence, an unincorporated association with a substantial number of members who are citizens of the U.S. or are aliens lawfully admitted for permanent residence, or a corporation that is incorporated in the U.S.” (NSA, undated). Although this definition would therefore allow information to be gathered on U.S. persons located abroad, our objective was to examine the creation of a domestic intelligence organization that would focus on—and whose activities would center around—individuals and organizations located inside the United States . Though such an agency might receive information about U.S. persons that was collected abroad by other intelligence agencies, it would not collect that information itself. GATHERING INFO ON US CITIZENS IS DOMESTIC SURVEILLANCEDomestic surveillance is whatever is needed to complete dossiers on US citizensJones 8 Chris Jones October 7, 2008 Prison Planet Forum FBI creates panic to justify their lawless Police State Fascism http://forum.prisonplanet.com/index.php?topic=63282.0 Domestic surveillance includes every aspect necessary to complete dossiers on American citizens to include phone tapping, internet, credit, finances, property,sexual preference and the company kept. SURVEILLANCE DONE IN THE US IS DOMESTIC SURVEILLANCEDomestic surveillance is surveillance within national borders Avilez et al 14 Marie Avilez et al, Carnegie Mellon University December 10, 2014 Ethics, History, and Public Policy Senior Capstone Project Security and Social Dimensions of City Surveillance Policy http://www.cmu.edu/hss/ehpp/documents/2014-City-Surveillance-Policy.pdf Domestic surveillance – collection of information about the activities of private individuals/organizations by a government entity within national borders; this can be carried out by federal, state and/or local officials Domestic refers to surveillance done in the US Truehart 2 Carrie Truehart, J.D., Boston University School of Law, 2002. Boston University Law Review April, 2002 82 B.U.L. Rev. 555 CASE COMMENT: UNITED STATES v. BIN LADEN AND THE FOREIGN INTELLIGENCE EXCEPTION TO THE WARRANT REQUIREMENT FOR SEARCHES OF "UNITED STATES PERSONS" ABROAD lexis n18. 50 U.S.C. 1801-1829 (1994 & Supp. V 1999). This Case Comment uses the word "domestic" to refer to searches and investigations conducted within the United States. The term "domestic foreign intelligence investigations" at first glance seems like an oxymoron, but it is not. As used in this Case Comment, the term refers to investigations conducted within the United States to obtain foreign intelligence information - that is, information pertaining to foreign nationals and their respective governments or international groups - as opposed to investigations conducted within the United States to obtain domestic intelligence information - that is, information pertaining to United States persons only. Notice that a United States person residing in the United States, however, could become the target of a foreign intelligence investigation if the Government were investigating that individual's relationship with a foreign government or international terrorist group. In other words, the difference between whether an investigation is a "domestic foreign intelligence investigation" or a "domestic intelligence investigation" turns on whether the investigation focuses in part on a foreign government or international group. Domestic surveillance is surveillance in the USJordan 6 DAVID ALAN JORDAN, LL.M., New York University School of Law (2006); J.D., cum laude, Washington and Lee University School of Law (2003). Member of the District of Columbia Bar. Boston College Law Review May, 2006 47 B.C. L. Rev 505 ARTICLE: DECRYPTING THE FOURTH AMENDMENT: WARRANTLESS NSA SURVEILLANCE AND THE ENHANCED EXPECTATION OF PRIVACY PROVIDED BY ENCRYPTED VOICE OVER INTERNET PROTOCOL lexis n100 See FISA, 50 U.S.C. § 1801(f). Section 1801(f) of FISA defines four types of conduct that are considered "electronic surveillance" under FISA. Signals collection operations that target U.S. persons outside the United States do not fit within any of these four definitions. The first three definitions require the targeted individual to be located inside of the United States to be considered "electronic surveillance." The fourth definition applies only to the use of surveillance devices within the United States. Therefore, the NSA's signals monitoring stations in the United Kingdom, Canada, Australia, and New Zealand are not regulated by FISA. U.S. personnel located at these foreign stations presumably may monitor U.S. persons who are outside the United States, and that conduct technically would not be considered electronic surveillance under FISA's definitions. This highlights the fact that FISA was meant to govern only domestic surveillance taking place within U.S. borders. Although such efforts would not fall under FISA's definition of "electronic surveillance," USSID 18's minimization procedures still would apply and offer some protection to the rights of U.S. persons abroad. See generally USSID 18, supra note 13.
COMMUNICATION TO OR FROM THE US IS INCLUDED IN DOMESTIC SURVEILLANCEDomestic surveillance includes transmission to or from abroad and can be for foreign intelligenceSeamon 8 Richard Henry Seamon, Professor, University of Idaho College of Law. Hastings Constitutional Law Quarterly Spring, 2008 35 Hastings Const. L.Q. 449 ARTICLE: Domestic Surveillance for International Terrorists: Presidential Power and Fourth Amendment Limits lexis First, FISA generally falls within Congress's power to regulate domestic surveillance for foreign intelligence information. That power comes from the Commerce Clause, to the extent that the surveillance involves interception of information that travels through channels of interstate or foreign commerce such as telephone lines. n188 Additional power flows from congressional powers associated with war and foreign affairs as amplified by the Necessary and Proper Clause. n189 Indeed, the executive branch has never questioned that FISA generally falls within Congress's power, except to the extent that it infringes on the President's congressionally irreducible power under the Constitution. n190 Calls to, from, or within the US is domestic surveillanceKravets 14 David Kravets 03.12.14. CIA Hack Scandal Turns Senate’s Defender of Spying Into a Critic http://www.wired.com/2014/03/feinstein-blasts-cia-snooping/ Feinstein’s statements criticizing the CIA have particular significance because she is perhaps the biggest senatorial cheerleader for domestic surveillance, including the telephone snooping program in which metadata from calls to, from and within the United States is forwarded in bulk to the National Security Agency without probable cause warrants. A federal judge declared such snooping unlawful last year but stayed the decision pending appeal. The case is before the U.S. Supreme Court. Communication from the US are domestic surveillanceCarter 13 Chelsea J. Carter and Jessica Yellin, CNN August 10, 2013 Obama: Snowden can 'make his case' in court; no Olympics boycott http://www.cnn.com/2013/08/09/politics/obama-news-conference/ Since Snowden leaked secret documents to the media, critics have called the NSA's domestic surveillance -- including a program that monitors the metadata of domestic phone calls -- a government overreach. Many of those same critics have asked the Obama administration and Congress to rein in the programs. DOMESTIC SURVEILLANCE IS INFORMATION EXCLUSIVELY WITHIN THE USDomestic surveillance deals with information transmitted within a countryHRC 14 Human Rights Council 2014 IMUNC2014 https://imunc.files.wordpress.com/2014/05/hrc-study-guide.pdf Domestic surveillance: Involves the monitoring, interception, collection, analysis, use, preservation, retention of, interference with, or access to information that includes, reflects, or arises from or a person’s communications in the past, present or future with or without their consent or choice, existing or occurring inside a particular country. Any foreign element means it is not domesticOlberman 6 Countdown with Keith Olberman, msnbc.com updated 1/26/2006 7:05:00 PM ET White House defines 'domestic' spying http://www.nbcnews.com/id/11048359/ns/msnbc-countdown_with_keith_olbermann/t/white-house-defines-domestic-spying/#.VU1lZJOYF2A The White House is trying to sell this so hard that it actually issued an official press release titled, “Setting the Record Straight, Charges of Domestic Spying.” Look, your tax dollars in action. Word wealth, SAT training class. As a public service, COUNTDOWN will now review, and, where applicable, provide translations of the White House take on what “domestic” means versus what “international” means, and then we‘ll add a few bonus examples of our own. Quoting, “Deputy Director Of National Intelligence General Michael Hayden,” semicolon; “One End Of Any Call Targeted Under This Program Is Always Outside The United States.” This is the glass-is-half-full view of warrantless eavesdropping, much as if a U.S. soldier, who, like the average human male, has about 12 pints of blood in his body, would lose six of those pints. Critics of the NSA terrorist surveillance program would say, That soldier is half empty. The White House would remind you that that soldier is half full. Anyway, the press release actually gives several examples of the differences between the meanings of these two words. “Definition, Domestic Versus International. Domestic Calls are calls inside the United States. International Calls are calls either to or from the United States.” And don‘t forget to deposit $2 for the first five minutes, and an extra $2 to cover the cost of the guy listening in at the NSA.
So what happens if I call a domestic airline about a flight to Europe, but they‘ve outsourced their reservation agents to India? Is that a domestic call about an international flight, or an international call about a domestic flight? Wait, there‘s more. “Domestic Mail consists of letters and packages sent within the United States,” the press release reads. “International Mail consists of letters and packages sent to or from the United States.”
And don‘t forget, we can not only open either kind, kind if we damn well feel like it, but if you‘re using an international stamp and we need it for our collection, we‘re keeping it. One more item from the press release, “Domestic Commerce involves business within the United States. International Commerce involves business between the United States and other countries.” International commerce. You know, the kind of stuff Jack Abramoff did for the -- Huh, leave Abramoff out of it? Gotcha, sorry. Well, anyway, if you‘re still not clear on this domestic-versus-international stuff, as promised, a couple of more definitions to help pull you through. Domestic is an adjective describing your dog or cat or any other animal you have as a pet, like a tiger or a boa constrictor. “The Internationale,” meanwhile, is the worldwide anthem of those socialists and communists. Internationals are soccer players who play in countries in which they were not born. Domestics is an old-timey kind of term for people who cleaned your house. International is the kind of law that lets us take terror suspects to old Soviet-era gulags in Eastern Europe and beat the crap out of them, while domestic is the kind of wine they bottle in California. Thank you for your attention. Please pass your examination papers forward.
Statutes define domestic as wholly in the USMayer 14 Jonathan Mayer PhD candidate in computer science & law lecturer at Stanford. December 3, 2014 Web Policy Executive Order 12333 on American Soil, and Other Tales from the FISA Frontier http://webpolicy.org/2014/12/03/eo-12333-on-american-soil/ Once again unpacking the legalese, these parallel provisions establish exclusivity for 1) “electronic surveillance” and 2) interception of “domestic” communications. As I explained above, intercepting a two-end foreign wireline communication doesn’t constitute “electronic surveillance.” As for what counts as a “domestic” communication, the statutes seem to mean a communication wholly within the United States.7 A two-end foreign communication would plainly flunk that definition. So, there’s the three-step maneuver. If the NSA intercepts foreign-to-foreign voice or Internet traffic, as it transits the United States, that isn’t covered by either FISA or the Wiretap Act. All that’s left is Executive Order 12333. NSA IS NOT DOMESTIC SURVEILLANCENSA Terrorist Surveillance Program is NOT DOMESTIC surveillanceCasey 7 LEE A. CASEY, PARTNER, BAKER HOSTETLER, TESTIMONY House Subcommittee on the Constitution, Civil Rights and Civil Liberties, House Committee on the Judiciary, June 7, 2007 hearings "Constitutional Limitations on Domestic Surveillance" page 43 http://congressional.proquest.com/congressional/ result/pqpresultpage.gispdfhitspanel.pdflink/ http%3A$2f$2fprod.cosmos.dc4.bowker-dmz.com$2fapp-bin$2fgis-hearing$2f3$2f7$2f2$2f7$2fhrg-2007-hjh-0042_from_1_to_156.pdf/entitlementkeys=1234|app-gis|hearing|hrg-2007-hjh-0042 Mr. CASEY. Thank you, Mr. Chairman. I appreciate the opportunity to appear today to discuss the constitutional limitations on domestic surveillance. Ironically, the most controversial surveillance over the past several years has not been domestic at all, but rather the international surveillance involved in the NSA's Terrorist Surveillance Program. It is to the legal issues surrounding that program that I will address my remarks. I should make clear that I am speaking here on my own behalf. Let me begin by stating that I believe President Bush was fully within his constitutional and statutory authority when he authorized the TSP. The President's critics have variously described this program as widespread, domestic and illegal. Based upon the published accounts, it is none of these things. Rather, it is a targeted program on the international communications of individuals engaged in an armed conflict with the United States and is fully consistent with FISA. In assessing the Administration's actions here, it is important to highlight how narrow is the actual dispute over the NSA program. Few of the President's critics claim that he should not have ordered the interception of al-Qaida's global communications or that he needed the FISA Court's permission to intercept al-Qaida commu- nications abroad. It is only with respect to communications actually intercepted inside the United States or where the target is a United States person in the United States, that FISA is relevant at all to this national discussion. Since this program involves only international communications, where at least one party is an al-Qaida operative, it is not clear that any of these intercepts would properly fall within FISA's terms. This is not the pervasive dragnet of American domestic communications about which so many of the President's critics have fantasized. If either party in a transmission is outside the US, interception is NOT DOMESTIC surveillanceFranks 7 Trent Franks, Representative, ranking member, House Subcommittee on the Constitution, Civil Rights and Civil Liberties, House Committee on the Judiciary, June 7, 2007 hearings "Constitutional Limitations on Domestic Surveillance" page 4 http://congressional.proquest.com/congressional/result/pqpresultpage.gispdfhitspanel.pdflink/ http%3A$2f$2fprod.cosmos.dc4.bowker-dmz.com$2fapp-bin$2fgis-hearing$2f3$2f7$2f2$2f7$2fhrg-2007-hjh-0042_from_1_to_156.pdf/entitlementkeys=1234|app-gis|hearing|hrg-2007-hjh-0042 Critics have portrayed the NSA's Terrorist Surveillance Program as "domestic spying," but that is not an accurate description of what we know at this classified program. As the Justice Department has explained, the President has authorized the NSA to intercept international communications into and out of the United States where there is a reasonable basis for believing that one of those persons is linked to al-Qaida or related terrorist organiza- tions. The program only applies to communications where one party is located outside of the United States. NSA is limited to communications with at least one outside the USStray 13 Jonathan Stray, Special to ProPublica, Aug. 5, 2013, 3:20 p.m. FAQ: What You Need to Know About the NSA’s Surveillance Programs http://www.propublica.org/article/nsa-data-collection-faq Massive amounts of raw Internet traffic The NSA intercepts huge amounts of raw data, and stores billions of communication records per day in its databases. Using the NSA’s XKEYSCORE software, analysts can see “nearly everything a user does on the Internet” including emails, social media posts, web sites you visit, addresses typed into Google Maps, files sent, and more. Currently the NSA is only authorized to intercept Internet communications with at least one end outside the U.S., though the domestic collection program used to be broader. But because there is no fully reliable automatic way to separate domestic from international communications, this program also captures some amount of U.S. citizens’ purely domestic Internet activity, such as emails, social media posts, instant messages, the sites you visit and online purchases you make. The contents of an unknown number of phone calls There have been several reports that the NSA records the audio contents of some phone calls and a leaked document confirms this. This reportedly happens “on a much smaller scale” than the programs above, after analysts select specific people as “targets.” Calls to or from U.S. phone numbers can be recorded, as long as the other end is outside the U.S. or one of the callers is involved in "international terrorism". There does not seem to be any public information about the collection of text messages, which would be much more practical to collect in bulk because of their smaller size.
GEOGRAPHY BASED DISTINCTION ELIMINATED BY INTERNETInternet routing eliminates the foreign – domestic distinction based on geographyACLU 6 American Civil Liberties Union 2006 Eavesdropping 101: What Can the NSA Do https://www.aclu.org/files/pdfs/eavesdropping101.pdf The Internet and technologies that rely upon it (such as electronic mail, web surfing and Internet-based telephones known as Voice over IP or VOIP) works by breaking information into small “packets.” Each packet is then routed across the network of computers that make up the Internet according to the most efficient path at that moment, like a driver trying to avoid traffic jams as he makes his way across a city. Once all the packets – which are labeled with their origin, destination and other “header” information – have arrived, they are then reassembled. An important result of this technology is that on the Internet, there is no longer a meaningful distinction between “domestic” and “international” routes of a communication. It was once relatively easy for the NSA, which by law is limited to “foreign intelligence,” to aim its interception technologies at purely “foreign” communications. But now, an e-mail sent from London to Paris, for example, might well be routed through the west coast of the Uned States (when, f or example, it is a busy mid-morning in Europe but the middle of the night in California) along the same path traveled by mail between Los Angeles and San Francisco. That system makes the NSA all the more eager to get access to centralized Internet exchange points operated by a few telecommunications giants. But because of the way this technology works, eavesdropping on an IP communication is a completely different ballgame from using an old-fashioned “wire- tap” on a single line. The packets of interest to the eavesdropper are mixed in with all the other traffic that crosses through that path- way – domestic and international.
Surveillance can no longer be categorized by geographySanchez 14 Julian Sanchez is a Senior Fellow at the Cato Institute June 5, 2014 Lead Essay Snowden: Year One http://www.cato-unbound.org/2014/06/05/julian-sanchez/snowden-year-one The second basic fact is that modern communications networks obliterate many of the assumptions about the importance of geography that had long structured surveillance law. A “domestic” Internet communication between a user in Manhattan and a server in Palo Alto might, at midday in the United States, be routed through nocturnal Asia’s less congested pipes, or to a mirror in Ireland, while a “foreign” e-mail service operated from Egypt may be hosted in San Antonio. “What we really need to do is all the bad guys need to be on this section of the Internet,” former NSA director Keith Alexander likes to joke. “And they only operate over here. All good people operate over here. All bad guys over here.” It’s never been quite that easy—but General Alexander’s dream scenario used to be closer to the truth. State adversaries communicated primarily over dedicated circuits that could be intercepted wholesale without much worry about bumping into innocent Americans, whereas a communication entering the United States could generally be presumed to be with someone in the United States. The traditional division of intelligence powers by physical geography—particularized warrants on this side of the border, an interception free-for-all on the other—no longer tracks the reality of global information flows. Geographic distinctions are antiquated due to modern communicationBedan 7 Matt Bedan, J.D. Candidate, Indiana University School of Law--Bloomington. Federal Communications Law Journal March, 2007 59 Fed. Comm. L.J. 425 NOTE: ECHELON'S EFFECT: THE OBSOLESCENCE OF THE U.S. FOREIGN INTELLIGENCE LEGAL REGIME lexis Apart from the issue of private corporations gathering and sharing intelligence, FISA's surveillance definition is antiquated due to the distinction it makes between data acquired inside or outside of the U.S. Again, government observation only qualifies as surveillance if the data is acquired inside the U.S. or if one or more of the parties is a known U.S. person, inside the U.S., who the government is targeting intentionally. In other words, unrestrained and indiscriminate eavesdropping by the NSA is allowed under FISA as long as the communication is not physically intercepted within the U.S., and the target is either: (1) someone known to be a non-U.S. person, (2) someone who is intentionally targeted but whose identity is unknown, or (3) anyone else in the world who is not intentionally being targeted. Today, the requirement that the interception of electronic communications takes place outside U.S. borders is hardly an obstacle to intelligence agencies. The proliferation of the Internet and other global communication networks has made physical distance and political borders a nonfactor in the realm of communications. To increase efficiency, Internet traffic is often routed through the least congested server regardless of the server's physical location. n58 For instance, two neighbors in Nebraska chatting on an instant messenger program might have their communications routed through servers in Hong Kong and back, despite being only 30 feet apart. Internet has eliminated the geographic based distinction between foreign and domesticTracy 15 Sam Tracy March 18, 2015 Digital Fourth NSA Whistleblower John Tye Explains Executive Order 12333 http://warrantless.org/2015/03/tye-12333/ That’s the topic of a TEDx-Charlottesville talk by whistleblower John Napier Tye, entitled “Why I spoke out against the NSA.” Tye objected to NSA surveillance while working in the US State Department. He explains that EO 12333 governs data collected overseas, as opposed to domestic surveillance which is authorized by statute. However, because Americans’ emails and other communications are stored in servers all over the globe, the distinction between domestic and international surveillance is much less salient than when the order was originally given by President Reagan in 1981. Internet routes communications through the USMayer 14 Jonathan Mayer PhD candidate in computer science & law lecturer at Stanford. December 3, 2014 Web Policy Executive Order 12333 on American Soil, and Other Tales from the FISA Frontier http://webpolicy.org/2014/12/03/eo-12333-on-american-soil/ The United States is the world’s largest telecommunications hub. Internet traffic and voice calls are routinely routed through the country, even though both ends are foreign. According to leaked documents, the NSA routinely scoops up many of these two-end foreign communications as they flow through American networks.2 The agency calls it “International Transit Switch Collection,” operated under “Transit Authority.” That authority stems from Executive Order 12333, not the Foreign Intelligence Surveillance Act. Data cannot be distinguished by geographyWheeler 14 Marcy Wheeler, independent journalist specializing in civil liberties, technology, and national security. She holds a BA from Amherst College and a Ph.D. from the University of Michigan. June 16, 2014 Response Essays The Drama Ahead: Google versus America http://www.cato-unbound.org/contributors/marcy-wheeler That’s an important implication of Sanchez’ point that “modern communications networks obliterate many of the assumptions about the importance of geography.” American tech companies now store data overseas, as well as in the United States. Americans’ data is mixed in with foreigners’ data overseas. Many of the more stunning programs described by Snowden’s documents – the collection of 5 billion records a day showing cell location, NSA partner GCHQ’s collection of millions of people’s intimate webcam images, and, of course, the theft of data from Google and Yahoo’s servers – may suck up Americans’ records too. Plus there’s evidence the NSA is accessing U.S. person data overseas. The agency permits specially trained analysts to conduct Internet metadata contact chaining including the records of Americans from data collected overseas. And in a Senate Intelligence Committee hearing earlier this year, Colorado Senator Mark Udall asked hypothetically what would happen with a “a vast trove of U.S. person information” collected overseas; the answer was such data would not get FISA protection (California Senator Dianne Feinstein, the Intelligence Committee Chair, asked an even more oblique question on the topic). FOREIGN / DOMESTIC IS DEFINED BY THE NATURE OF THE INFORMATION, NOT LOCATION"Foreign" refers to the nature of the information, not the locationCardy 8 Emily Arthur Cardy, law student Fall, 2008 Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J. 171 NOTE: THE UNCONSTITUTIONALITY OF THE PROTECT AMERICA ACT OF 2007 lexis 1. Foreign Intelligence Defined The definition of "foreign intelligence" is critical to the constitutional analysis of the Protect America Act. The Act does not provide a different definition of "foreign intelligence" from the one provided in FISA; thus in interpreting the Protect America Act, FISA's definition of "foreign intelligence" applies. n84 In FISA's definition, "foreign" applies to the content of the information gathered, and not to the location in (or from) which the information is gathered, or the nationality of the sources from which it is gathered. n85 Instead, "foreign intelligence" means "information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against ... " harms or clandestine operations against the United States. n86 The definition [*184] does not contain any language limiting the country from which the information may be collected. n87 Thus, while the Act's asserted purpose is to collect foreign intelligence, the Act's definition of foreign intelligence does not provide inherent protection against domestic surveillance - domestic surveillance is not precluded from the definition of foreign surveillance. How an act defines its terms, rather than the terms themselves out of context, dictates the Act's application; this is a critical point in understanding the Protect America Act's far-reaching implications.
SURVEILLANCE OF FOREIGN THREATS IS NOT DOMESTIC SURVEILLANCESurveillance of foreign agents is not domestic surveillance even if in the USMcCarthy 6 Andrew C. McCarthy former assistant U.S. attorney, now contributing editor of National Review and a senior fellow at the National Review Institute. May 15, 2006 National Review It’s Not “Domestic Spying”; It’s Foreign Intelligence Collection http://www.nationalreview.com/corner/122556/its-not-domestic-spying-its-foreign-intelligence-collection-andrew-c-mccarthy Eggen also continues the mainstream media’s propagandistic use of the term “domestic surveillance [or 'spying'] program.” In actuality, the electronic surveillance that the NSA is doing — i.e., eavesdropping on content of conversations — is not “domestic.” A call is not considered “domestic” just because one party to it happens to be inside the U.S., just as an investigation is not “domestic” just because some of the subjects of interest happen to reside inside our country. Mohammed Atta was an agent of a foreign power, al Qaeda. Surveilling him — had we done it — would not have been “domestic spying.” The calls NSA eavesdrops on are “international,” not “domestic.” If that were not plain enough on its face, the Supreme Court made it explicit in the Keith case (1972). There, even though it held that judicial warrants were required for wiretapping purely domestic terror organizations, the Court excluded investigations of threats posed by foreign organizations and their agents operating both within and without the U.S. That is, the Court understood what most Americans understand but what the media, civil libertarians and many members of Congress refuse to acknowledge: if we are investigating the activities of agents of foreign powers inside the United States, that is not DOMESTIC surveillance. It is FOREIGN counter-intelligence. That, in part, is why the statute regulating wiretaps on foreign powers operating within the U.S. — the one the media has suddenly decided it loves after bad-mouthing it for years as a rubber-stamp — is called the FOREIGN Intelligence Surveillance Act (FISA). The United States has never needed court permission to conduct wiretapping outside U.S. territory; the wiretapping it does inside U.S. territory for national security purposes is FOREIGN INTELLIGENCE COLLECTION, not “domestic surveillance.”
Foreign intelligence is NOT DOMESTIC surveillanceNadler 7 Jerrold Nadler, Chair, House Subcommittee on the Constitution, Civil Rights and Civil Liberties, House Committee on the Judiciary, June 7, 2007 hearings "Constitutional Limitations on Domestic Surveillance" page 2 http://congressional.proquest.com/congressional/result/pqpresultpage.gispdfhitspanel.pdflink/http%3A$2f$2fprod.cosmos.dc4.bowker-dmz.com$2fapp-bin$2fgis-hearing$2f3$2f7$2f2$2f7$2fhrg-2007-hjh-0042_from_1_to_156.pdf/entitlementkeys=1234|app-gis|hearing|hrg-2007-hjh-0042 The FISA reflects timeless understanding that the conduct of foreign intelligence activities is fundamentally different from domestic surveillance. It nonetheless also reflects one of our Nation's founding principles that power, especially the power to invade people's privacy, must never be exercised unchecked Foreign surveillance includes American citizensL I I 15 Legal Information Institute LII a small research, engineering, and editorial group housed at the Cornell Law School 2015 Electronic Surveillance https://www.law.cornell.edu/wex/electronic_surveillance Foreign Surveillance Legislation Case law is split regarding the constitutionality of wiretapping's use on foreign nationals for obtaining foreign intelligence; courts agree, however, that wiretapping for the purpose of domestic security does not pass constitutional muster. In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA). The Act lowers the evidentiary showing needed to obtain a surveillance warrant with regard to foreign intelligence gathering and describes other procedures relating to physical and electronic surveillance relating to foreign intelligence. The Act's provisions also applies to American citizens suspected of espionage. FISA – EXECUTIVE ORDER DISTINCTION FAILSThe FISA / Excutive Order distinction failsMayer 14 Jonathan Mayer PhD candidate in computer science & law lecturer at Stanford. December 3, 2014 Web Policy Executive Order 12333 on American Soil, and Other Tales from the FISA Frontier http://webpolicy.org/2014/12/03/eo-12333-on-american-soil/ When the National Security Agency collects data inside the United States, it’s regulated by the Foreign Intelligence Surveillance Act. There’s a degree of court supervision and congressional oversight. When the agency collects data outside the United States, it’s regulated by Executive Order 12333. That document embodies the President’s inherent Article II authority to conduct foreign intelligence. There’s no court involvement, and there’s scant legislative scrutiny. So, that’s the conventional wisdom. American soil: FISA. Foreign soil: EO 12333. Unfortunately, the legal landscape is more complicated. In this post, I’ll sketch three areas where the NSA collects data inside the United States, but under Executive Order 12333. I’ll also note two areas where the NSA collects data outside the United States, but under FISA. INVESTIGATION OF COMMON CRIMES IS NOT DOMESTIC SURVEILLANCEDomestic surveillance is distinct from ordinary crimePfeiffer 4 Constance Pfeiffer, Juris Doctor candidate, The University of Texas School of Law, May 2004 The Review of Litigation Winter, 2004 23 Rev. Litig. 209 NOTE: Feeling Insecure?: United States v. Bin Laden and the Merits of a Foreign-Intelligence Exception For Searches Abroad lexis Courts regularly deal with the most difficult issues of our society. There is no reason to believe that federal judges will be insensitive to or uncomprehending of the issues involved in domestic security cases. Certainly courts can recognize that domestic surveillance involves different considerations from the surveillance of "ordinary crime." If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance. n141
Domestic surveillance excludes criminal actsJackson et al 9 Brian A. Jackson, Darcy Noricks, and Benjamin W. Goldsmith, RAND Corporation The Challenge of Domestic Intelligence in a Free Society RAND 2009 BRIAN A. JACKSON, EDITOR http://www.rand.org/content/dam/rand/pubs/monographs/2009/RAND_MG804.pdf To guide the work reported in this volume, we define domestic intelligence as efforts by government organizations to gather, assess, and act on information about individuals or organizations in the United States or U.S. persons elsewhere 3 that are not related to the investigation of a known past criminal act or specific planned criminal activity .
Supreme Court distinguishes domestic surveillance from criminal surveillanceBazan 7 Elizabeth B. Bazan, Congressional Research Service Legislative Attorney, American Law Division CRS Report The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and U.S. Foreign Intelligence Surveillance Court and U.S. Foreign Intelligence Surveillance Court of Review Decisions Updated February 15, 2007 https://www.fas.org/sgp/crs/intel/RL30465.pdf Investigations for the purpose of gathering foreign intelligence give rise to a tension between the Government’s legitimate national security interests and the protection of privacy interests.6 The stage was set for legislation to address these competing concerns in part by Supreme Court decisions on related issues. In Katz v. United States , 389 U.S. 347 (1967), the Court held that the protections of the Fourth Amendment extended to circumstances involving electronic surveillance of oral communications without physical intrusion.7 The Katz Court stated, however, that its holding did not extend to cases involving national security.8 In United States v. United States District Court, 407 U.S. 297 (1972) (the Keith case), the Court regarded Katz as “implicitly recogniz[ing] that the broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails necessitate the application of Fourth Amendment safeguards.”9 Mr. Justice Powell, writing for the Keith Court, framed the matter before the Court as follows:
The Court held that, in the case of intelligence gathering involving domestic security surveillance, prior judicial approval was required to satisfy the Fourth Amendment.11 Justice Powell emphasized that the case before it “require[d] no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without the country.”12 The Court expressed no opinion as to “the issues which may be involved with respect to activities of foreign powers or their agents.”13 However, the guidance which the Court provided in Keith with respect to national security surveillance in a domestic context to some degree presaged the approach Congress was to take in foreign intelligence surveillance. The Keith Court observed in part: ...We recognize that domestic surveillance may involve different policy and practical considerations from the surveillance of “ordinary crime.” The gathering of security intelligence is often long range and involves the interrelation of various sources and types of information. The exact targets of such surveillance may be more difficult to identify than in surveillance operations against many types of crime specified in Title III [of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510 et seq.]. Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government’s preparedness for some possible future crisis or emergency. Thus, the focus of domestic surveillance may be less precise than that directed against more conventional types of crimes. Given these potential distinctions between Title III criminal surveillances and those involving domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection.... It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of § 2518 but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court...; and that the time and reporting requirements need not be so strict as those in § 2518. The above paragraph does not, of course, attempt to guide the congressional judgment but rather to delineate the present scope of our own opinion. We do not attempt to detail the precise standards for domestic security warrants any more than our decision in Katz sought to set the refined requirements for the specified criminal surveillances which now constitute Title III. We do hold, however, that prior judicial approval is required for the type of domestic surveillance involved in this case and that such approval may be made in accordance with such reasonable standards as the Congress may prescribe. 14 Domestic security surveillance has different legal standardsTunheim 8 JUDGES: John R. Tunheim, United States District Judge. OPINION BY: John R. Tunheim UNITED STATES OF AMERICA, Plaintiff, v. MOHAMED ABDULLAH WARSAME, Defendant. Criminal No. 04-29 (JRT) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA 547 F. Supp. 2d 982; 2008 U.S. Dist. LEXIS 31698 April 17, 2008, Decided lexis In United States v. United States District Court (Keith), 407 U.S. 297, 299, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972), the Supreme Court addressed the "delicate question of the President's power, acting through the Attorney General, to authorize electronic surveillance in internal security matters without [**26] prior judicial approval." The Court held that such judicial approval is necessary to satisfy the Fourth Amendment in conducting domestic security surveillance, but it specifically declined to address the scope of the President's surveillance power with respect to foreign intelligence. Id. at 323-24. However, Keith took care to explain that HN33Go to this Headnote in the case.the specific statutory requirements for electronic surveillance of "ordinary crime" under Title III 11 -- including the requirement [*993] of probable cause to believe an individual has, is, or is about to commit a crime -- were not constitutionally mandated in the context of domestic security surveillance for national security purposes. Id. at 322. Noting that HN34Go to this Headnote in the case.domestic security surveillance involves different policy and practical considerations from surveillance of "ordinary crime," Keith stated that "the focus of domestic surveillance may be less precise than that directed against more conventional types of crime." Id. Thus, the appropriate Fourth Amendment inquiry is one of reasonableness: "Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information [**27] and the protected rights of our citizens." Id. at 322-23. Criminal surveillance requires probable cause; FISA does notShamsi and Abdo 11 Hina Shamsi, director of the American Civil Liberties Union’s National Security Project and Alex Abdo, staff attorney with the National Security Project. Human rights Mag Winter 2011 Vol. 38 No. 1 Privacy and Surveillance Post-9/11 http://www.americanbar.org/publications/human_rights_magazine_ home/human_rights_vol38_2011/human_rights_winter2011/privacy_and_surveillance_post_9-11.html Domestic law enforcement surveillance requires familiar constitutional standards to be met. Before the government can conduct surveillance, for example under ECPA, it has to show probable cause based on individualized suspicion and obtain a warrant from a court. Foreign-intelligence-gathering standards are more lax. Under the Foreign Intelligence Surveillance Act (FISA), the government need not show suspicion of wrongdoing, and it can conduct electronic and covert searches domestically if the target of these searches is “foreign-intelligence information” from a foreign power or an agent of a foreign power. Unlike under ECPA, FISA surveillance orders are obtained from a secret court, the Foreign Intelligence Surveillance Court (FISC), and need not ever be made public. INVESTIGATION OF COMMON CRIMES IS DOMESTIC SURVEILLANCEDomestic surveillance includes criminal and regulatory investigation – drone example provesThompson 13 Richard M. Thompson II, CRS Legislative Attorney April 3, 2013 Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses https://www.fas.org/sgp/crs/natsec/R42701.pdf The term “domestic drone surveillance” as used in this report is designed to cover a wide range of government uses including, but not limited to, investigating and deterring criminal or regulatory violations; conducting health and safety inspections; performing search and rescue missions; patrolling the national borders; and conducting environmental investigations. DOJ guidelines on criminal investigation are for domestic surveillanceFisher 4 Linda E. Fisher, Associate Professor of Law and Director, Center for Social Justice, Seton Hall Law School. Arizona Law Review Winter, 2004 46 Ariz. L. Rev. 621 ARTICLE: Guilt by Expressive Association: Political Profiling, Surveillance and the Privacy of Groups lexis n238. See Attorney General Guidelines, supra note 13; Lininger, supra note 13. These guidelines apply to domestic surveillance only; that is, surveillance of conduct that involves potential criminal activity, rather than foreign intelligence. The guidelines governing foreign intelligence are classified. Portions of prior foreign intelligence surveillance guidelines from 1995 have been released, but nothing since that time has been made available to the public. The 1995 guidelines give investigators much greater leeway to collect intelligence than do the domestic surveillance guidelines. See Attorney General Guidelines For FBI Foreign Intelligence Collection And Foreign Counterintelligence Investigations (1995), available at http://www.politrix.org/foia/fbi/fbi-guide.htm. There is no clear distinction between national security and criminal investigationTruehart 2 Carrie Truehart, J.D., Boston University School of Law, 2002. Boston University Law Review April, 2002 82 B.U.L. Rev. 555 CASE COMMENT: UNITED STATES v. BIN LADEN AND THE FOREIGN INTELLIGENCE EXCEPTION TO THE WARRANT REQUIREMENT FOR SEARCHES OF "UNITED STATES PERSONS" ABROAD lexis The line between "foreign intelligence investigations" and "criminal investigations" is admittedly a blurry one. This is especially true where the target of the investigation is suspected of involvement in espionage or terrorism because these activities are crimes as well as national security concerns. See United States v. Troung Dinh Hung, 629 F.2d 908, 915-16 (stating that "almost all foreign intelligence investigations are in part criminal investigations" because, "although espionage prosecutions are rare, there is always the possibility that the targets of the investigations will be prosecuted for criminal violations"); Bin Laden, 126 F. Supp. 2d at 278 (stating that "[a] foreign intelligence collection effort that targets the acts of terrorists is likely to uncover evidence of crime"). For the purpose of this Case Comment, the term "foreign intelligence investigations" refers to investigations conducted primarily for the purpose of obtaining foreign intelligence. "Criminal investigations" refers to investigations conducted specifically for the purpose of obtaining information to prosecute crimes. Domestic surveillance includes law enforcementL I I 15 Legal Information Institute LII a small research, engineering, and editorial group housed at the Cornell Law School 2015 Electronic Surveillance https://www.law.cornell.edu/wex/electronic_surveillance Domestic Surveillance Legislation In 1986 Congress passed extensive regulations regarding electronic surveillance and wiretapping in the Electronic Communications Privacy Act (ECPA). Courts have interpreted the Act as allowing magistrates and federal judges to grant law enforcement officers warrants to enter private homes in order to "bug" the home's means of electronic communication. Despite numerous constitutional challenges, the courts have repeatedly upheld these provisions. The ECPA also provides remedy for those individuals victimized by unlawful electronic surveillance. If an individual uses a practice in contravention of the ECPA, the victim may bring suit for compensatory damages, punitive damages, and equitable relief, if equitable relief can rectify the harm. The plaintiff may only bring suit against the individual who performed the recording; plaintiffs may not sue any third-party that receives a copy of the recording and subsequently distributes it. The Communications Assistance for Law Enforcement Act of 2006 mandates the telecommunication companies' cooperation when law enforcement engages in a wiretap. The cooperation involves giving law enforcement access to the systems and facilities necessary to track the communication of one subscriber without infringing on the privacy of another subscriber. There is no difference between criminal and security surveillanceShamsi and Abdo 11 Hina Shamsi, director of the American Civil Liberties Union’s National Security Project and Alex Abdo, staff attorney with the National Security Project. Human rights Mag Winter 2011 Vol. 38 No. 1 Privacy and Surveillance Post-9/11 http://www.americanbar.org/publications/human_rights_magazine_ home/human_rights_vol38_2011/human_rights_winter2011/privacy_and_surveillance_post_9-11.html Americans’ right to privacy is under unprecedented siege as a result of a perfect storm: a technological revolution; the government’s creation of a post-9/11 surveillance society in which the long-standing “wall” between surveillance for law enforcement purposes and for intelligence gathering has been dismantled; and the failure of U.S. laws, oversight mechanisms, and judicial doctrines to keep pace with these developments. As a result, the most sweeping and technologically advanced surveillance programs ever instituted in this country have operated not within the rule of law, subject to judicial review and political accountability, but outside of it, subject only to voluntary limitations and political expedience. Surveillance includes criminal investigationFeinberg 93 OPINION BY: FEINBERG, Circuit Judge: In Re: UNITED STATES OF AMERICA, Petitioner; IN THE MATTER OF THE APPLICATION OF THE UNITED STATES FOR AN ORDER AUTHORIZING THE INTERCEPTION OF WIRE AND ELECTRONIC COMMUNICATIONS, ETC. . . Docket No. 93-3074 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 10 F.3d 931; 1993 U.S. App. LEXIS 31014 November 23, 1993, Decided lexis Second, petitioner has no alternative remedies capable of effectively protecting its substantial interests. Electronic surveillance involves major criminal investigations and requires a significant expenditure of government resources. Petitioner thus has a strong interest in ensuring the admissibility of evidence it gathers by electronic surveillance. Suppression on the ground that surveillance was authorized by an invalid Title III order would result in a significant waste of government resources. Furthermore, the government as parens patriae has an interest in avoiding illegal invasions of its citizens' privacy.
DOMESTIC SURVEILLANCE INVOLVES RELATIONSHIP INFIDELITYDomestic surveillance involves investigating relationship infidelityEPIS 15 Empire Pacific Investigative Service 2015 Domestic Surveillance | Surveillance Investigations | Surveillance http://www.epis.us/about_domestic_surveillance.html What is domestic surveillance? EPIS Domestic surveillance involves investigative measures used to determine if infidelity in a relationship has occurred. This technique involves an investigator in the field who will track and record the movements and activities of a suspected cheater Yüklə 474,04 Kb. Dostları ilə paylaş:
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