Understanding Intelligence Surveillance: A FISA Primer

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Pre-FISA Cases
Post-FISA Cases

Pre-FISA Cases
The following three cases were decided before the enactment of FISA.

Katz v. United States, 389 U.S. 347 (1967).
In this U.S. Supreme Court case, the petitioner, Katz, was convicted of engaging in illegal gambling operations across state lines in violation of federal law. To find evidence of this crime, federal agents placed a wiretap on the public phone booth that Katz used to make gambling-related calls. Law Enforcement did not have a warrant, which they argued they did not need. Although the police only listened to Katz's conversation, and only those portions dealing with illegal gambling, the Supreme Court held that Katz had a reasonable expectation of privacy that society was prepared to recognize in his phone booth conversations.

Prior to this case, the law said that a wiretap did not constitute a Fourth Amendment search because it did not involve a physical intrusion into a constitutionally protected area. The physical intrusion test (known as the "trespass doctrine") came from the case of Olmstead v. United States (1928). The "constitutionally protected area" test came from the case of Silverman v. United States (1961). Katz did away with both of these frameworks for purely domestic searches that involved gathering criminal evidence. This decision did not address the issue of wiretaps, or other forms of electronic surveillance, involving foreigners or issues of national security.

United States v. United States District Court, 407 U.S. 297 (1972).
In this U.S. Supreme Court case, the Court held that the President Richard Nixon lacked the inherent constitutional power to authorize wiretaps on persons within U.S. borders and organizations that are planning to harm the U.S. government.

In this case, President Nixon authorized warrantless wiretaps of several persons and organizations whose suspected goal was to overthrow the U.S. government and/or otherwise bring about revolution. Several of these organizations were implicated in various criminal activities throughout the country including possible fire bombings of government offices).

All of the persons and organizations subject to the warrantless wiretaps were operating domestically. Most persons involved were U.S. citizens. Therefore, although the President viewed his actions as justified due to the threat that these persons/organizations posed to national security, the Supreme Court held that, since they resided/operated solely within the United states (i.e., they did not have any direct ties to a foreign government), the Fourth Amendment required the President to obtain a search warrant before conducting surveillance activities. This case did not address the issue of whether or not the President could authorize warrantless wiretaps on individuals with proven connections to foreign governments.

United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980).
In this Fourth Circuit Court of Appeals decision, the Court held that the President did not have the inherent authority to authorize the surveillance of individuals with foreign connections if the "primary purpose" of the surveillance (conducted via wiretap) was to find evidence of a crime-not for intelligence-gathering purposes.

In this case, President Nixon authorized the surveillance of Troung Dinh Hung based upon information that he was providing the North Vietnamese with classified information during the Paris Peace Talks at the end of the Vietnam War. The surveillance resulted in enough evidence ti charge Truong with espionage.

In this case, the Court affirmed the District Court's decision to exclude evidence obtained from the warrantless surveillance because the government could not prove that its primary focus was to gather intelligence (or disprove that its primary purpose was not to find evidence of a crime). The Court rejected the government's argument that since all foreign intelligence surveillance operations have the tendency to reveal evidence of a crime, they should be constitutionally permitted.

In the absence of a clear manifestation that the purpose of the surveillance is intelligence gathering, the Court required that government agents obtain a warrant before any information gathered from the intelligence operation may be used in a criminal trial.

Although the actions in this case arose before the enactment of FISA, the "primary purpose" test the Court developed would have a direct impact on the question of when evidence obtained from FISA-related surveillance may be admitted in Court.

Post-FISA Cases
The following cases were decided after the enactment of FISA.

FISA Surveillance and Criminal Trials
United States v. Megahey, 553 F. Supp. 1180 (E.D.N.Y. 1982),
aff'd sub nom. United States v. Duggan, 743 F.2d 59 (2d Cir. 1984).
The U.S. District Court for the Eastern District of New York held that evidence obtained pursuant to a FISC-authorized surveillance could be admitted in a subsequent criminal trial if the government's "primary purpose" in obtaining the FISC-authorized surveillance was to gather intelligence information and not to try to find evidence of a crime.

United States v. Johnson, 952 F.2d 565 (1st Cir. 1991).
In this case, the U.S. Court of Appeals for the First Circuit reached the same conclusion.

United States v. Falvey, 540 F. Supp. 1306 (E.D.N.Y. 1982).
The U.S. District Court for the Eastern District of New York again reached the same conclusion as the court in Megahey, but it also added that a FISC-authorized surveillance was the same as a Fourth Amendment warrant.

United States v. Sarkissian, 841 F.2d 959 (9th Cir. 1988).
The Ninth Circuit Court of Appeals refused to draw a bright-line distinction between intelligence gathering activities and gathering evidence of a crime. It noted that often intelligence gathering is intricately related to finding evidence of a crime.

In Re Sealed Case, 310 F.3d 717 (U.S. Foreign Intell. Surveil. Ct. Rev. 2002).
In this case, the Foreign Intelligence Court of Review, in its first decision, reversed a decree of the Foreign Intelligence Surveillance Court (FISC). The FISC's decree modified (restricted) the scope of surveillance that the government requested on two individuals. The FISC based its decision on the belief that the government's request for surveillance was motivated primarily by a desire to obtain evidence for use in a criminal trial, and not for intelligence gathering purposes. The FISC took the position that FISA mandated it to authorize surveillance of individuals only if the surveillance was primarily for intelligence-gathering purposes.

The Court of Review stated that the FISC misinterpreted the FISA. First, it held that FISA did not prohibit federal authorities from using FISA surveillance to gather evidence of a crime. This could not be the main motivation. Second, the Court noted that the PATRIOT ACT (2001) gave federal authorities much greater leeway in using FISA surveillance to gather evidence of criminal activity, so long as a "substantial" portion of the surveillance was for intelligence purposes. Finally, the Court of Review noted that, under the circumstances, the authorization for surveillance was reasonable under the Fourth Amendment, and thus constitutionally permitted. It instructed the FISC to authorize the surveillance activities requested by the government without any modifications.