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Re: Wiretap Article (2 of 2)
In <[email protected]>, Shari Steele wrote...
> >Date: Fri, 24 Sep 1993 16:31:55 -0400 (EDT)
> >From: [email protected] (Dorothy Denning)
> >Subject: Wiretap Article
> >To: [email protected]
> >Cc: [email protected]
> >Errors-To: [email protected]
> >Content-Transfer-Encoding: 7BIT
> >
> > combination, 289 other)
> >
> > (4) major offenses involved (634 narcotics, 90 racketeering, 66
> > gambling, 35 homicide/ assault, 16 larceny/theft, 9 kidnapping,
> > 8 bribery, 7 loansharking/usury/extortion, 54 other)
> >
> > (5) average number of (a) persons intercepted (117), (b)
> > interceptions (1,861), and (c) incriminating intercepts (347)
> > per order where interception devices were installed
> >
> > (6) average cost of interception ($46,492)
> >
> > (7) type of surveillance used for the 846 interceptions installed
> > (632 telephone, 38 microphone, 113 electronic, 63 combination)
> >
> > (8) number of persons arrested (2,685) and convicted (607) as the
> > result of 1992 intercepts
> >
> > (9) activity taking place during 1992 as the result of intercepts
> > terminated in years 1982-1991, including number of arrests
> > (1211), trials (280), motions to suppress that are granted (14),
> > denied (141), and pending (37), and convictions (1450) (there is
> > a lag between interceptions, arrests, and convictions, with many
> > arrests and most convictions associated with a wiretap that
> > terminated in one year taking place in subsequent years)
> >
> >Most of the above data is broken down by jurisdiction. Of the 919
> >authorized intercepts, 340 (37%) were federal. New York State had 197,
> >New Jersey 111, Florida 80, and Pennsylvania 77. The remaining 114
> >intercepts were divided among 18 states, none of which had more than 17
> >intercepts. During the past decade, the average number of authorized
> >intercepts per year has been about 780.
> >
> >Individual law enforcement agencies also require internal reports. For
> >example, the New York Sate Police requires that each week, the Troop or
> >Detail Captain prepare a report summarizing the status of all
> >eavesdropping activity within the unit, including the productivity and
> >plans for each electronic surveillance installation and a brief
> >synopsis of pertinent activity. This is sent to the New York State
> >Police Division Headquarters Captain who prepares a report summarizing
> >the status of all eavesdropping installations.
> >
> >One of the reasons for the significant amount of post wiretap reporting
> >is to provide a substantial record for legislatures when considering
> >whether or not to reenact or modify wiretap statutes.
> >
> >
> >3. FISA Interceptions
> >
> >Title 50 USC, Sections 1801-1811, the Foreign Intelligence Surveillance
> >Act (FISA) of 1978, covers electronic surveillance for foreign
> >intelligence purposes (including counterintelligence and
> >counterterrorism). It governs wire and electronic communications sent
> >by or intended to be received by United States persons (citizens,
> >aliens lawfully admitted for permanent residence, corporations, and
> >associations of U.S. persons) who are in the U.S. when there is a
> >reasonable expectation of privacy and a warrant would be required for
> >law enforcement purposes; nonconsensual wire intercepts that are
> >implemented within the U.S.; and radio intercepts when the sender and
> >all receivers are in the U.S. and a warrant would be required for law
> >enforcement purposes. It does not cover intercepts of U.S. persons who
> >are overseas (unless the communications are with a U.S. person who is
> >inside the U.S.). Electronic surveillance conducted under FISA is
> >classified.
> >
> >FISA authorizes electronic surveillance of foreign powers and agents of
> >foreign powers for foreign intelligence purposes. Normally, a court
> >order is required to implement a wiretap under FISA. There are,
> >however, two exceptions. The first is when the communications are
> >exclusively between or among foreign powers or involve technical
> >intelligence other than spoken communications from a location under the
> >open and exclusive control of a foreign power; there is no substantial
> >risk that the surveillance will acquire the communications to or from a
> >U.S.person; and proposed minimization procedures meet the requirements
> >set forth by the law. Under those conditions, authorization can be
> >granted by the President through the Attorney General for a period up
> >to one year. The second is following a declaration of war by
> >Congress. Then the President, though the Attorney General, can
> >authorize electronic surveillance for foreign intelligence purposes
> >without a court order for up to 15 days.
> >
> >Orders for wiretaps are granted by a special court established by
> >FISA. The court consists of seven district court judges appointed by
> >the Chief Justice of the United States. Judges serve seven-year
> >terms.
> >
> >3.1 Application for a Court Order
> >
> >Applications for a court order are made by Federal officers and require
> >approval by the Attorney General. Each application must include:
> >
> > (1) the Federal officer making the application;
> >
> > (2) the Attorney General's approval;
> >
> > (3) the target of the electronic surveillance;
> >
> > (4) justification that the target is a foreign power or agent of a
> > foreign power (except no U.S person can be considered a foreign power
> > or agent thereof solely based on activities protected by the First
> > Amendment) and that the facilities or places where the surveillance
> > is be directed will be used by the same;
> >
> > (5) the proposed minimization procedures, which must meet certain
> > requirements to protect the privacy of U.S. persons;
> >
> > (6) the nature of the information sought and type of communications
> > subjected to surveillance;
> >
> > (7) certification(s) by the Assistant to the President for National
> > Security Affairs or other high-level official in the area of
> > national security or defense (Presidential appointee subject to
> > Senate confirmation) that the information sought is foreign
> > intelligence information and that such information cannot
> > reasonably be obtained by normal investigative methods;
> >
> > (8) the means by which the surveillance will be effected;
> >
> > (9) the facts concerning all previous applications involving the same
> > persons, facilities, or places;
> >
> > (10) the period of time for the interception (maximum 90 days or,
> > when the target is a foreign power, one year);
> >
> > (11) coverage of all surveillance devices to be employed and the
> > minimization procedures applying to each.
> >
> >Some of the above information can be omitted when the target is a
> >foreign power.
> >
> >Within the FBI, the process of applying for a court order under FISA is
> >as exacting and subject to review as under Title III. The main
> >differences are that under FISA, the FBI Intelligence Division is
> >involved rather than the Criminal Investigative Division, the DOJ
> >Office of Intelligence Policy and Review (OIPR) is involved rather than
> >either the U.S. Attorney's Office or the DOJ Criminal Division, and the
> >application is approved by the Attorney General (or Acting Attorney
> >General) rather than by a lower DOJ official.
> >
> >3.2 Issuance of a Court Order
> >
> >Before a judge can approve an application, the judge must determine
> >that the authorizations are valid; that there is probable cause to
> >believe that the target of the electronic surveillance is a foreign
> >power or agent of a foreign power and that the facilities or places
> >where the surveillance is be directed will be used by the same; and
> >that the proposed minimization procedures meet the requirements set
> >forth in the law. If the judge approves the application, an order is
> >issued specifying the relevant information from the application and
> >directing the communication carrier, landlord, custodian, or other
> >specified person to furnish all necessary information, facilities, and
> >technical assistance and to properly maintain under security procedures
> >any records relating to the surveillance.
> >
> >3.3 Emergencies
> >
> >In an emergency situation, the Attorney General or designee can
> >authorize the use of electronic surveillance provided the judge is
> >notified at the time and an application is made to the judge within 24
> >hours. If such application is not obtained, then the judge notifies
> >any U.S. persons named in the application or subject to the
> >surveillance, though such notification can be postponed or forgone upon
> >showing of good cause.
> >
> >3.4 Use of Intercepted Communications as Evidence
> >
> >Like Title III, FISA places strict controls on what information can be
> >acquired through electronic surveillance and how such information can
> >be used. No information can be disclosed for law enforcement purposes
> >except with the proviso that it may only be used in a criminal
> >proceedings under advance authorization from the Attorney General. If
> >the government intends to use such information in court, then the
> >aggrieved person must be notified in advance. The person may move to
> >suppress the evidence.
> >
> >3.5 Reports
> >
> >Each year, the Attorney General must give the Administrative Office of
> >the United States Courts (AO) a report of the number of FISA
> >applications and the number of orders and extensions granted, modified,
> >or denied. In 1992, there were 484 orders. Since 1979, there has been
> >an average of a little over 500 FISA orders per year.
> >
> >Because intercepts conducted under FISA are classified, detailed
> >information analogous to that required under Title III is not reported
> >to the AO, nor made available to the public. However, records of
> >Attorney General certifications, applications, and orders granted must
> >be held for at least 10 years, and the Attorney General must inform two
> >Congressional oversight committees of all surveillance activity on a
> >semiannual basis. These committees are the House Permanent Select
> >Committee on Intelligence and the Senate Select Committee on
> >Intelligence.
> >
> >
> >Acknowledgements
> >
> >We are grateful to Geoffrey Greiveldinger for many helpful suggestions
> >on an earlier draft of this report.
> >
> >
> >
>
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