ANNEX 15: THE LAW OF THE FIVE EYES
89.
Finally PRA grants both federal and state law enforcement the right to make records of
outgoing numbers from (pen register) and incoming calls (trap and trace) to a particular
phone number pursuant to a court order.104 The definition of a “pen register” was
widened by the USA PATRIOT Act in 2001. It now includes a device which records
“signalling information” that can record access to the internet and other network
analysis devices.105 The procedure for obtaining a court order is less onerous than the
procedure for obtaining a warrant, both in terms of the standard of proof to be met and
the level of detail that is ordinarily provided.106 Court orders under the PRA last for up
to 60 days. They do not provide a basis for gaining access to the contents of
communications.
Gathering of foreign intelligence
90.
FISA 1978 (as amended) authorises the electronic surveillance of foreign powers
overseas - including groups engaged in international terrorism - and agents of foreign
powers. Much of the material collected under FISA 1978 is gathered overseas or
concerns the activities of non-US citizens in the mainland United States. However, a
US person may also be an agent of a foreign power,107 to the extent that they knowingly
gather intelligence for a foreign power or engage in sabotage or terrorism on behalf of
a foreign power.
91.
FISA 1978 authorises broadly three kinds of data collection. First the traditional FISA
1978 process requires a Federal officer, with the approval of the Attorney General, to
apply to the FISC, a bespoke federal court made up of eleven district court judges set
up following reports of abuse by the intelligence agencies in the United States, for an
interception warrant. Those eleven judges sit part time, at the court for one week stints
on duty, where they read or hear warrant applications under FISA 1978. The Court
has 10 full time staff members: five counsel to the Court and five administrative staff.108
92.
The majority of applications are dealt with on the papers though I was informed that
around 10% are dealt with following an oral hearing.109 The judges can and do request
that the individual who swore an affidavit in support of the application appears before
them so that they can be asked questions by the judge. No special advocate can
appear to make submissions in defence of the privacy interests in issue. The court has
recently accepted an amicus brief from the Centre for National Security Studies on the
question of bulk metadata production.110 However, I am not aware of amicus counsel
being instructed to make submissions in specific cases. Historically very few
judgements of the FISC have been published. However, there has been a trend
towards publication in recent years. A telecommunications provider, that is ordered to
provide access to material, or a government body that has applied for a warrant may
104
18 U.S.C. § 3121.
18 U.S.C. § 3127 (3).
18 U.S.C. § 3122.
Defined as a citizen of the US, an alien with lawful permanent residence or a US corporation or
unincorporated association.
The court does not publish details of its costs but the District Court Judges are not paid any additional
salary for their FISC work.
In the calendar year 2013, the FISC received 1,655 applications under s 702, 178 applications for
“tangible things” under s215 and the FBI applied for 14,219 National Security Letters.
http://www.fisc.uscourts.gov/sites/default/files/Misc%2014-01%20Order-1.pdf.
105
106
107
108
109
110
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