ANNEX 15: THE LAW OF THE FIVE EYES
appeal a decision of the FISC to the United States Foreign Intelligence Surveillance
Court of Review. In practice, such appeals are rare.
93.
An application for a FISA 1978 warrant must specify the identity (if known) or a
description of the specific target of the electronic surveillance. It must set out the facts
and circumstances to support the belief that the target is a foreign power or agent of a
foreign power and that the targeted facilities will be used by them.111 The application
must also set out the minimisation procedures in place to ensure that the
correspondence of United States persons is not acquired, retained or distributed.112
94.
The judge of the FISC must be satisfied that there is probable cause to believe that the
elements above are satisfied (including that the target is a foreign power or agent of a
foreign power). An order may be granted for up to 90 days.113 FISA 1978 orders may
be granted that authorise the interception of the communications of US citizens, to the
extent that the FISC judge is satisfied that there is probable cause to find that that
individual is an agent of a foreign power.
95.
The second, more controversial, aspect of FISA 1978 arises out of a series of
amendments to the Act introduced in 2008 (the FISA Amendment Act 2008 Section
702 allows the targeting of individuals “reasonably believed to be located outside the
United States to acquire foreign intelligence information” without the same degree of
judicial scrutiny.114 Under s702, the Attorney General and the Director of National
Intelligence may jointly authorise that targeting for a period of up to one year.
Acquisition of data via this route may not intentionally target:
96.
111
112
113
114
(a)
Any person known to be located in the United States;
(b)
A person outside of the United States in order to target a person reasonably
believed to be in the United States;
(c)
A United States person reasonably believed to be outside the United States; or
(d)
Any communication as to which the sender and recipients are all known to be
inside the United States.
The basic mechanics of s702 are:
(a)
The Attorney General and Director of National Intelligence draw up a certificate
identifying categories of foreign intelligence that they wish to collect (for
example email addresses of suspected terrorists overseas).
Those
certifications do not contain the level of specificity as to the individual targeted
that is required under a normal FISA 1978 order;
(b)
The certification must set out the targeting procedures that will be used. They
must be “reasonably designed” to ensure that the material acquired is “limited
to targeting persons reasonably believed to be located outside the United
50 U.S.C. § 1804 (a).
See: 50 U.S.C. § 1801.
50 U.S.C. § 1805.
50 U.S.C § 1881a.
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