Chapter 19 - Congressional Authority for
National Security Surveillance
Part III
NSA screening of International Phone
Calls
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Is pattern matching on electronic communications
"reading the content"?
What are the impediments to getting FISA warrants for
this screening?
 Did FISA provide for area warrants?
 Did FISA contemplate individual warrants for given
individuals?
Could the government just put everyone on notice that
foreign calls may be screened and eliminate the
expectation of privacy?
Letter from William E. Moschella
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Does the president claim intrinsic authority for
national security searches, outside the 4th
amendment and congressional authorization?
What statutory support does the president claim
for the phone surveillance?
What exception from FISA does the president
claim is satisfied by this authority?
Is this an unambiguous reading of both laws?
American Civil Liberties Union v. National
Sec. Agency, 493 F.3d 644 (6th Cir 2007)
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Who are the plaintiffs?
What are the complaining that the NSA is doing
illegally?
What provision of FISA seems to ban intercepting
communications without a warrant?
The Standing Problem
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Can any of the plaintiffs show that their calls have
been intercepted?
 Can anyone show this?
What would be required for this showing?
 Why is that not going to happen?
Is this showing essential for standing?
 Why isn't it necessary for a declaratory
judgment that the agency is acting illegally?
What are the Damages?
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What do plaintiffs argue is their damages?
Are they arguing that they are worried they will be
arrested?
 Even if true, why would you not bring it up?
What might damages be for an attorney with an overseas
client?
 Is this more than just invasion of privacy?
Do they have an alternatives to avoid interception of their
messages?
Redressablity
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What is redressablity?
Would they know if there was a proper warrant?
Think about plaintiffs' arguments about what they
are worried about
 Would any of their concerns be different if the
search was based on a warrant?
 Since they could not know if there was a
warrant, would they be able to behave
differently if the NSA said it would obey FISA?
The Court's Holding
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Why did the court find that none of the plaintiffs
had standing?
Could anyone get standing under this analysis?
Who would be the right party to bring an action?
Why is this unlikely?
Why did this make the telcom company immunity
for complying such an important issue?
FISA Amendments Act of 2008
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Does Section 702 create an area warrant for
interception of communications originating
outside the US?
Why does the Act have provisions allowing the
communications companies to contest these
warrants in court?
Why is there a provision granting the
communications companies immunity from
complying with these orders?