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:

Who are FISA orders issued by?

Answer 3

special court of federal district court judges that handle FISA, Foreign Intelligence Surveillance Court (FISC)

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 and stored for access by NSA

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

• 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

Question 9

Can you petition an NSL?

Answer 9

recipients can petition federal court to modify or set aside an NSL if compliance would be unreasonable or oppressive

Question 10

Are NSL recipients bound to confidentiality?

Answer 10

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