Following 9/11, the Bush administration undertook the "Terrorist Surveillance Program," which included warrantless wiretapping of foreign communications arguably covered by Foreign Intelligence Surveillance Act (FISA) Title I's requirement of a probable-cause warrant for wiretaps of certain electronic communications. The program was described in the New York Times in December 2005; in response, in 2006, the decision was made to seek FISA Court approval of the surveillance.

The FISA Court issued two orders on Jan. 10, 2007, approving continuation of the surveillance of the content of foreign communications. Under traditional FISA, tapping of a "facility" depends on demonstrated probable cause to believe that the "facility" is being used by an agent of a foreign power/international terrorist. "Facility" has usually been interpreted to mean, for example, a phone number or an email address. But in this matter, one FISA Court judge (Judge Malcolm Howard) accepted the government's argument that a facility could be something far broader--not just a particular phone number or email address but the "gateway or cable head foreign targets used for communications," because terrorists were probably among the millions of people whose communications used that gateway. Minimization rules then were imposed, governing the searching and use of the communications. We don't have the date on which the order was entered, but we do have an additional order, entered on 4/5/2007 and expiring 5/31/2007, extending the first order.

The FISA Court's subsequent denial of the reapplication for authorization for these surveillance orders can be found in the Clearinghouse at NS-DC-68.

Edward Mroczkowski - 03/23/2015
- 03/23/2015


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