FISA Notice: When Prosecutors Must Tell Defendants About Surveillance

01What § 1806(c) requires

The Foreign Intelligence Surveillance Act (FISA) governs electronic surveillance for foreign-intelligence purposes. Most of it happens in secret, approved by the FISA Court. Section 1806 sets the rules for what happens when that secret material reaches a public courtroom.

Subsection (c) is the notice rule. When the United States intends to enter into evidence, or otherwise use or disclose, information obtained or derived from FISA electronic surveillance against an aggrieved person, it must tell that person and the court. Notice must come before the trial, hearing or other proceeding, or a reasonable time before the information is used. 50 U.S.C. § 1801(k) defines an aggrieved person, in short, as a target of the surveillance or anyone whose communications or activities were subject to it.

Subsection (d) imposes the same duty on states and local governments, and requires them to notify the Attorney General as well. A state prosecution does not escape the rule.

02Section 702 evidence is covered too

Section 702 is the warrantless program that targets non-U.S. persons abroad and sweeps in Americans' communications along the way. Its notice rule lives in 50 U.S.C. § 1881e(a), which treats information acquired under Section 702 as information from FISA electronic surveillance for purposes of § 1806. The Supreme Court relied on exactly that chain, citing §§ 1806(c), 1806(e) and 1881e(a), in the case that made notice famous.

For how the FBI searches that data for Americans, see our explainer on Section 702 backdoor searches.

03Clapper and the notice promise

In Clapper v. Amnesty International USA, decided Feb. 26, 2013, lawyers, journalists and human rights groups challenged Section 702. The Court ruled 5–4, in an opinion by Justice Alito, that they lacked standing, the right to sue, because they could not show that the injury they feared was “certainly impending.”

Part of the Court's reasoning was that someone would be able to challenge the program. If the government intends to use or disclose information from a Section 702 acquisition in judicial proceedings, the Court wrote, it must “provide advance notice of its intent,” and the affected person may challenge the lawfulness of the acquisition.

That promise had a problem. According to Patrick C. Toomey of the ACLU, writing in Just Security on Dec. 11, 2015, the Justice Department gave no criminal defendant notice of Section 702 surveillance from 2008 to 2013, even though Solicitor General Donald Verrilli had told the Court in Clapper that defendants would receive it.

04Muhtorov and the notices that followed

1. Feb. 26, 2013

   Clapper decided

   The Court describes the government's notice obligation as part of its standing analysis.

2. Oct. 25, 2013

   First Section 702 notice to a criminal defendant

   Prosecutors told Jamshid Muhtorov, charged with material support to the Islamic Jihad Union, that they intended to use information obtained or derived from Section 702 collection. Lawfare reported it on Oct. 26, 2013.

3. Oct. 2013 – Apr. 2014

   Five notices in all

   Toomey lists five cases: Muhtorov (D. Colo.), Mohamud (D. Or.), Hasbajrami (E.D.N.Y.), Khan (D. Or.) and Mihalik (S.D. Cal.). The Oregon Mohamud case is a different case and defendant from our Case File 003.

4. Dec. 11, 2015

   Twenty months of silence

   Toomey reported that no new Section 702 notice had been given since April 2014.

Human Rights Watch later reported that in Hasbajrami the judge let the defendant withdraw his guilty plea and called the government's earlier notice misleading (HRW, Jan. 9, 2018).

05“Obtained or derived from”: the phrase that decides everything

Evidence obtained directly from a wiretap is easy to identify. Evidence derived from it is not. If an intercept produced a lead, the lead produced a search warrant, and the warrant produced the evidence at trial, is that evidence derived from the intercept?

Toomey argued the Justice Department reads the phrase too narrowly. Citing Charlie Savage's book Power Wars, he wrote that then-Deputy Attorney General James Cole required Section 702 information to be “material” or “critical” before notice was triggered. Toomey contended that Supreme Court doctrine on derivative evidence is broader, reaching evidence acquired as an indirect result of an earlier search, and that rebuilding a case through other means does not change that analysis. He also reported that the Justice Department identified more than 80 records of “FISA-Derived Guidance” in an ACLU public-records lawsuit and withheld all of them in full.

This is where FISA notice meets parallel construction. The narrower the reading of “derived from,” the easier it is for a FISA lead to sit at the start of a case without ever being named in it. Our explainer on the independent source doctrine covers the derivative-evidence rules in detail.

06What a defendant can do with notice

In practice, then, the defense often argues about surveillance it cannot see. Cases with classified material may also involve the Classified Information Procedures Act (CIPA), which governs how classified evidence is handled in criminal cases. A CIPA filing is one of the signals we watch for.

07What notice leaves out

Notice is tied to information the government intends to use or disclose against the defendant. It is not a general duty to explain how an investigation began. If agents treat a FISA-derived tip as a starting point and then build the evidence they use at trial some other way, the government may take the position that nothing “derived from” FISA is being used.

That gap is why Human Rights Watch recommended that Congress require disclosure to defendants of complete information about the origins of their investigations, with special procedures for classified material. It is also why our homepage calls for notice of surveillance used to start a case, not just evidence used at trial.

Questions a defendant can raise with their own lawyer:

1. Has the government said, in writing, whether it intends to use information obtained or derived from FISA or Section 702?
2. Does the defense read “derived from” the same way the government does?
3. Has the government filed anything under CIPA or under seal about the investigation's origin?
4. What does discovery show about the first step, separate from the evidence at trial?

09Sources

Every fact in this dispatch comes from the documents below. If you spot an error, tell us and we'll correct it on this page.

1. 50 U.S.C. § 1806, use of FISA information, Cornell LII
2. 50 U.S.C. § 1801, definitions, Cornell LII
3. 50 U.S.C. § 1881e, use of Section 702 information, Cornell LII
4. Clapper v. Amnesty International USA, No. 11-1025, Feb. 26, 2013 (Cornell LII)
5. Raffaela Wakeman, Lawfare, on the first Section 702 notice to a criminal defendant, Oct. 26, 2013
6. Patrick C. Toomey (ACLU), on Section 702 notice to criminal defendants, Just Security, Dec. 11, 2015
7. Human Rights Watch, “Dark Side: Secret Origins of Evidence in US Criminal Cases”, Jan. 9, 2018

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