Unit 4 Outline
Kladimir Gav Butin (KGB), a Russian citizen studying history and political theory at George Washington University, is still bitter about the Cold War and the collapse of the Soviet Union. Determined to take down the United States, KGB sends an email to a friend of his who works for the Russian Foreign Intelligence Service (which conducts much of Russian’s foreign intelligence operations). Before coming to the US, KGB and his friend would often talk about doing everything in their power to destroy the United States. In his email, KGB offers, on behalf of Russia, to steal classified information of the U.S. government. The friend simply responded “Great.” Excited, KBG asks his girlfriend, who works for the CIA, to provide him classified information relating to the U.S.’s dealings with Russia since the 2014 Crimean crisis. When the girlfriend refused, KGB took the girlfriend’s security badge, snuck into the CIA building, stole a classified file relating to actions taken by the U.S. government against Russia post Crimea, and emailed the information to his friend. Unknown to KGB, the CIA has the entire incident on camera, in which it was able, to a 50% match, identify KGB as the likely culprit.The CIA alerts the Department of Justice Counter Espionage section, which handles all espionage prosecutions, of the incident, and together the CIA and Counter Espionage section—through the Attorney General—file a FISA application with the FISC to wiretap KGB’s phone and review all his emails. The application states that KBG is a Russian citizen studying in the United States and that the government wants to place a wiretap on KGB’s cell phone and review KGB’s email account, RussiaKillsTheUS@gmail.com. In addition, the application outlines the break-in of the CIA office and the 50% likelihood of KGB being the culprit, and further states that “the surveillance is needed to gain additional evidence to determine whether to prosecute KGB for espionage”; the application further states that the government “wants to determine where KGB (or whomever the culprit is) is sending the classified information, considering that the information he stole related to classified intelligence information about Russia.”Review chapters 20 and 21, including the statutory definitions of key terms in FISA outlined in Rosen. You are a clerk for FISC Judge Boller. He asks you to make a legal outline that outlines the relevant law and analyzes whether he should approve the application to conduct electronic surveillance of KGB according to the state of law (1) before the Patriot Act was passed and In Re Sealed Cases was decided and (2) after the Patriot Act was passed and In re Sealed Cases was decided.
The Outline should be organized based on the questions asked and should have headings that clearly walk through each step of the analysis. Indicate the applicable legal rules by typing, “Rule:” before the rule. Do the same for “Analysis” and “Conclusion.” The outline need not be in complete sentences; bullet points are preferred. Be concise but thorough.
Answer:
Legal Outline: KGB Electronic Surveillance
I. Before the Patriot Act and In Re Sealed Cases A. Statutory Definitions of Key Terms in FISA
- Foreign Intelligence Surveillance Act (FISA) Rule: The Foreign Intelligence Surveillance Act of 1978 outlines the procedures for government surveillance for foreign intelligence purposes.
- Electronic Surveillance Rule: Electronic surveillance refers to the interception of wire, oral, or electronic communications through the use of any electronic, mechanical, or other device.
- Foreign Intelligence Information Rule: Foreign intelligence information refers to information that relates to the ability of the United States to protect against threats to its national security, including espionage, sabotage, international terrorism, and the development, possession, or use of weapons of mass destruction.
B. Analysis of the Application
- Probable Cause Rule: The government must show probable cause that the target of the surveillance is a foreign power or agent of a foreign power and that the information sought is foreign intelligence information. Analysis: The application states that KGB is a Russian citizen studying in the United States and that the information he stole related to classified intelligence information about Russia. The likelihood of KGB being the culprit of the break-in at the CIA office is 50%.
- Relevance Rule: The information sought must be relevant and material to an ongoing investigation. Analysis: The application states that the surveillance is needed to gain additional evidence to determine whether to prosecute KGB for espionage and to determine where KGB is sending the classified information.
C. Conclusion
- Approval of the Application Analysis: Based on the probable cause and relevance established in the application, it is likely that the surveillance of KGB’s cell phone and email account would be approved by the FISC before the Patriot Act and In Re Sealed Cases.
II. After the Patriot Act and In Re Sealed Cases A. Statutory Definitions of Key Terms in FISA
- Foreign Intelligence Surveillance Act (FISA) Rule: The Foreign Intelligence Surveillance Act of 1978 was amended by the Patriot Act to expand the government’s surveillance powers.
- Electronic Surveillance Rule: Electronic surveillance refers to the interception of wire, oral, or electronic communications through the use of any electronic, mechanical, or other device. The Patriot Act expanded the definition of electronic surveillance to include new technologies.
- Foreign Intelligence Information Rule: Foreign intelligence information refers to information that relates to the ability of the United States to protect against threats to its national security, including espionage, sabotage, international terrorism, and the development, possession, or use of weapons of mass destruction. The Patriot Act expanded the definition of foreign intelligence information.
B. Analysis of the Application
- Probable Cause Rule: The government must show probable cause that the target of the surveillance is a foreign power or agent of a foreign power and that the information sought is foreign intelligence information. Analysis: The application states that KGB is a Russian citizen studying in the United States and that the information he stole related to classified intelligence information about Russia. The likelihood of KGB being the culprit of the break-in at the CIA office is 50%.
- Relevance Rule: The information sought must be relevant and material to an ongoing investigation. Analysis: The application states that the surveillance is needed to gain additional evidence to determine whether to prosecute KGB for espionage and to determine where KGB is sending the classified information.
C. Conclusion
- Approval of the Application Analysis: Based on the expanded definitions and requirements for probable cause and relevance established by the Patriot Act and In Re Sealed Cases.
