is relevant to an FBI investigation.[1] For electronic surveillance, which is among the most intrusive techniques available to the FBI, the requirements are more extensive. We describe below some of the findings required by the statute, FISA’s First Amendment proviso, and the certification by a high-ranking Executive Branch official.[2] This subsection concludes by summarizing some of the Executive Branch’s requirements for FISA applications, many of which have been added in recent years.
1. Required findings
FISA requires the government submit an application to the FISC describing the target of the surveillance, the techniques that will be used, and other matters.[3] An FBI agent or other federal official swears to the truth of the facts in the application.[4]
The FISC may authorize electronic surveillance if there is probable cause to believe that the target of the surveillance is an agent of a foreign power.[5] For a U.S. person, there are at least two additional related requirements. First, as the House Intelligence Committee’s 1978 report on FISA explains, “[a]s a matter of principle … no United States citizen … should be targeted for electronic surveillance … absent some showing that he at least may violate the laws of our society.”[6] Second, the person must be knowingly engaged in the specified conduct. Thus, a U.S. person may be an agent of a foreign power if the person is knowingly engaged in clandestine intelligence gathering activities on behalf of a foreign power, or knowingly helping another person in such activities, provided that the activities involve or may involve a violation of U.S. criminal law.[7]
The House Report goes on to explain how foreign powers may engage both in intelligence gathering and other nefarious intelligence activities:
- ↑ See 50 U.S.C. § 1842(c) (requiring that the applicant certify that “the information likely to be obtained … is relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the [F]irst [A]mendment”).
- ↑ This subsection focuses on those provisions of FISA and related procedures most relevant to the Crossfire Hurricane investigation and to the observations in section V. It discusses FISA’s requirements for electronic surveillance. FISA contains comparable provisions governing physical searches conducted for foreign intelligence purposes. See 50 U.S.C. §§ 1821–25. As pertinent to this report, Carter Page was a target of both electronic surveillance and physical search.
- ↑ See 50 U.S.C. § 1804(a).
- ↑ See id. (“Each application for an order approving electronic surveillance … shall be made by a Federal officer in writing upon oath or affirmation to a judge”).
- ↑ Id. § 1805(a)(2)(A).
- ↑ H.R. Rep. No. 95-1283, 95th Cong., 2d Sess., Pt. 1, at 36 (1978) (hereinafter “House Report”). The Report also says that a citizen “should be able to know that his government cannot invade his privacy with the most intrusive techniques if he conducts himself lawfully.”
- ↑ See 50 U.S.C. §§ 1801(b)(2)(A) and (E).
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