Sec 107 of HR 6304 deals with physical searches for gathering foreign intelligence. In the pre-existing law, 50 U.S.C., the procedures for FISA Court warrant applications are virtually identical for both physical searches and electronic surveillance. Much of it is just copy and paste with a search and replace of physical search for electronic surveillance (a few other minor changes, none that I noticed were substantive.) So pre-existing law allowed for physical searches with the same probable cause requirements as electronic surveillance. Sec 107 makes the following changes to the existing law:
- Strikes a paragraph stating that the approval of the Attorney general must be included in the application to the FISA court for a physical search warrant. It however leaves in several other references to the requirement of the Attorney General’s approval. Sec 104 made the same changes for electronic surveillance. It is not clear what effect, if any this has.
- The requirement for the inclusion of “a detailed description of the premises or property to be searched and of the information, material, or property to be seized, reproduced, or altered” in the application has had the word ‘detailed’ removed. Again, this is analogous to the change Sec 104 made for electronic surveillance. The impact of this will be to make easier the primary thing the 4th Amendment was meant to prevent–fishing expeditions for something to charge a target with without prior probable cause. Major loser.
- Under pre-existing law property to be searched had to be “owned, used, possessed by, or is in transit to or from a foreign power or an agent of a foreign power;” Sec 107 changes this to include ‘is about to be owned by’. Not sure how this increases the search scope beyond what was already possible (‘use’, ‘possess’, and ‘in transit to or from’ are sufficiently broad that I cannot think of anything included in ‘about to be owned by’ that does fall under one of those three, particularly the third.)
- Makes the same change as Sec 104 by creating an opening for an executive branch official not accountable to congress to certify the application.
- Allows the Director of the CIA to request FISA applications (again analogous to Sec 104).
Sec 107 also alters the procedure for judges issuing a FISA court order for a physical search (pre-existing law is again nearly identical to pre-existing law for electronic surveillance).
- Makes a change analogous to one in Sec 105 by striking a requirement that the judge find that the president has authorized the Attorney General to make applications to the FISA court. It is a strange change the purpose of which is not clear to me.
- Makes a change in the language allowing the search of property that is about to be owned by the target of the investigation, in line with the above similar change in the application law.
- It then (as Sec 105 did for electronic surveillance) strikes the existing rules for emergency orders of physical searches (which are nearly identical to the existing ones for electronic searches) and replaces them. The new law is basically the same as what Sec 105 made for electronic surveillance. If the Attorney General ‘reasonably’ believes a warrant would be awarded he may order the search before filing an application, which he has seven days (instead of the 72 hours allowed in existing law) to file with the FISA court. As it turns out tracking2008 has a good eye, and caught something I did not catch in Sec 105 that is both there and here: Information obtained from both physical searches and electronic surveillances without a FISA court warrant (either before or after the fact) is inadmissible as evidence before any governmental authority–except when employed to prevent imminent death or direct harm. I caught that part, and was ok with that. What I missed, but tracking2008 caught was the clause just underneath that which reads: “(6) The Attorney General shall assess compliance with the requirements of paragraph (5)” this means that only the Attorney General gets to decide if illegally obtained information (meaning information obtained without FISA court blessing) is misused. This was NOT in the existing law, and is something we should be very concerned about. It runs against the very principle of checks and balances 50 U.S.C. as a whole. My thanks to tracking2008 for catching that in his post.
Next I will cover Sec 109 which deals with the formation of the FISA court, and Title II which is the Telecom Immunity portion of the bill.
Filed under: FISA Fiasco