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political activities should never be the sole basis for a finding of probable cause to believe that a U.S. person is … an agent of a foreign power.”[1]

3. Certification by Executive Branch official

An application for electronic surveillance under FISA requires a certification by the Director of the FBI or a similar official. The official must certify that a significant purpose of the electronic surveillance is to obtain foreign intelligence information.[2] One definition of foreign intelligence found in the statute is “information with respect to a foreign power or foreign territory that … is necessary to … the national defense or security of the United States … or the conduct of the foreign affairs of the United States.”[3] The House Report says that this category includes information necessary to national defense or security and the conduct of foreign affairs.[4] It does “not include information solely about the views … or activities of … private citizens concerning the foreign affairs or national defense of the United States.”[5] Another definition of foreign intelligence is information “necessary … to protect against … clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power.”[6] The certifying official must designate the type or types of foreign intelligence information sought, and include an explanation of the basis for that certification.[7]

The official must also certify that the foreign intelligence sought cannot be obtained by normal investigative techniques, and the official must explain the basis for that certification.[8] In other words, the official must explain why the government cannot obtain the information sought through other, less intrusive techniques, such as checking government records and publicly available information, interviewing the target of the surveillance, or using informants. “This requirement,” the House Report says, “is particularly important in those cases when U.S. citizens or resident aliens are the target of the surveillance.”[9]

The certification requirement thus applies to the purpose of the surveillance and to the use of electronic surveillance as an investigative technique. By its terms, it does not apply to the accuracy of the factual information in the application. That is addressed by the sworn statement of an FBI agent or other federal official,[10] and by the Executive Branch requirements described below.

  1. ↑ House Report at 80.
  2. ↑ 50 U.S.C. § 1804(a)(6)(B).
  3. ↑ Id. § 1801(e)(2).
  4. ↑ House Report at 49.
  5. ↑ Id.
  6. ↑ 50 U.S.C. § 1801(e)(1)(C).
  7. ↑ Id. §§ 1804(a)(6)(D) and (a)(6) (E)(i).
  8. ↑ Id. §§ 1804(a)(6)(C) and (a)(6)(E)(ii).
  9. ↑ House Report at 76.
  10. ↑ See supra § III.C.1.

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