National Security and Privacy

Question 1

Define:

Foreign Intelligence Surveillance Act

Answer 1

establishes standards and procedures for electronic surveillance that collects foreign intelligence within the USA

Question 2

What are the requirements for a FISA order?

Answer 2

• when foreign intelligence gathering is a “significant purpose” of investigation
• probable cause that the party to be monitored is a “foreign power” or “agent of a foreign power”
• entities that receive a FISA order generally cannot disclose the fact of the order to the targets of investigation

Question 3

Define:

Foreign Intelligence Surveillance Court

Answer 3

special court of federal district court judges that handle FISA

Question 4

bulk collection under the PATRIOT Act

Answer 4

ended under USA FREEDOM Act of 2015, requiring requests by government officials to be based upon specific selectors, such as a telephone number

Question 5

Section 702 of the FISA Amendment Act (FISAA)

Answer 5

applies to collection of electronic comms that take place within the U.S. and only authorizes access to these comms of targeted individuals for listed foreign intelligence purposes
* FISC must annually approve certifications by the director of national intelligence and the AG setting the terms for Section 702 surveillance
* to target the comms of any person, the government must have a foreign intelligence purpose to conduct the collection and a reasonable belief that the person is a non-U.S. citizen located outside of the United States

Question 6

What are the two surveillance programs authorized under Section 701?

Answer 6

• PRISM collection: government sends judicially approved and supervised directive requiring collection of certain “selectors”, which goes to a U.S. based service provider that can challenge the request; then compelled to give comms sent to or from that selector to the government
• Upstream: targets internet-based comms as they pass through physical infrastructure located within U.S. with a tasked selector amd stpred fpr access bu MSA

Question 7

Define:

National Security Letter (NSL)

Answer 7

category of subpoena that, prior to PATRIOT Act in 2001, was used narrowly → PATRIOT Act expanded its use

Question 8

How can NSLs be issued?

Answer 8

• as amended in 2006, NSLs can be issued by authorized officials and can generally seek records relevant to protect against international terrorism or clandestine intelligence activities
• can be issued without any judicial involvement
• recipients can petition federal court to modify or set aside an NSL if compliance would be unreasonable or oppressive
• recipients bound to confidentiality only if there is a finding by the requesting agency of interference with a criminal or counterterrorism investigation or for other listed purposes