Opinion

UNITED STATES
FOREIGN INTELUGBNCB SURVEILLANCE COURT
~ASHINGTON, D.C.
IN RE APPUCATION OF TIIE FED.ERAL
BURBAUOFJNVESTIOATIONFORAN
ORDER REQUUUNG THE PRODUCTION
OF TANGIBLE THINGS FROM
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OPINION
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201~ AUG 27 	PM 3: ~ 6
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· On this Gate, the Court
- 	to produce 	Jbis opinion explains
the Court's decision to issue the requc:~:tcd production order, '-"ilh c.,·rrrphasis on the Court's
determination that the application demonstrates ~nable grounds to believe that the underlying
investigation is "not conducted solely upon the basis of activities protected by the first
amendment." as required by 50 U.S.C. § 1861.
A. 	Statutory Requirements
Section 1861 permits the Fe.deral Bureau of Investigation ("FBI") to make an application
to this Court fur ·
an order requiring the production of any tangible thin~ (including books, rcconts,
papers, documents, and other items) for an investigation to obtain foreign
intelligence infurmation not concerning a United States person or to protect
against international terrorism or clandestine intelligence activities, provided that
such investigation of a United States person is not conducted solely upon the basis
of ~ties protect.ed by the first amendment to the Constitution. 1
SO U.S.C. § 186l(a)(l). ••An investigation conducted under [Section 1861] shall • .. be
1 FISA defines ..United States person" in pertinent part as "a citizen of the United States"
or "an alien lawfully admitted for peananent residence (as defined in section 10l(aX20) of the
Immigra1ion and Nationality Ad)." SO U.S.C. § 1801(i).
Slbc:M;T/IOaGON,NQFORN

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Sl!iGRETllORC9N~9~~
conducted under guidclilles approved by the Attorney Gen«ai under Executive Order 12333 (or a
successor order)," and shall "not be conducted of a United States person aolely upon the basis of
activities protected by the first amendment to the Constitution of the United States." ~ 	·
~ 1~1(a.)(2}.
An application under Section 1861 must include, in pertinent pert, .._ statement offaats
showing that there are nmonable grounds to believe that the 1aogible things sought arc relevant
to an authorized investigation ••. oonducted in accordance with subsection (a)(2) .•. to protect
agaimt international terrorism or clandestine intelligence activities . ..." 14. § 186l{b)(2XA).
\1.) iipprovc ~ M ~'~Cw.rt m'M\ ful\\ ~ i\ m.~ ~rtn.~ mi·~. ~
§ 1861 (o)(l). Hence, in a case .involving the investigation of a United States person, the statute
requires th!:l Court to determine whether the application shows reasonable grounds to believe that
(1) the tangible things sought are rel~ant to an authorized invartigation to protect against
intonational tctrorism or clandestine intelligence activiti~ and (2) the investigation is not being
conducted solely upon the basis of activities protected by the first amendment
B. 	~
The application bi tbis case was filed in support ofthe FBrs investigationo ~
- 	who is a United States petSOn. App. at 4. Tho investigation, which is "currently being
conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a
S'Uccessor order)," is described ns an investigation "to protect against i.nicmational terrorism." ld.
at 3. The records 11 1 .Jn 1 • the guvcrYimcrn are all nntillh: u ti$ ·, 	. 	-
- - 	- 	, indu dii.: .. !tlm not lUdk 1·to,
pn~ c si0n._ A at 2.3; §ee aJso kL
~t: application slates ;that
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C. 	Analvsls
. 	The Court finds that the application demonstrates reasonable grounds to believe both that
the records sought are relevant to the investigation o f,- 	and that the investigation is one to
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A more difficult question is whether the application shows reasonable grounds to believe
that the investigation o~ is not being conchacted solely upon the basis of activities 	·
pr ~ted by the :fimt amendment. None of the conduct or s 	that the 	ip li ;u:Ei100 attributes to	- 	-
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!IUflendm
-in particular, his statement
3 "International terrorism" is defined in 50 U.S.C. § 1801(c) to mean "activities tbat":. 	.
(1) involve violent acts or a1.-1s dangerous to human life that are a violation of the
criminal laws of the United States or of any State, or that would be a criminal
violation if committed within the jurisdiction of1hc United States or any State;
(2) appear to be intend~
(A) to intimidate or coerce a civilian. population;
(B) to influence the policy of a government by intimidation or coercion; or
(C) to affect the conduct of a government by assassination or kidnapping; and
(3) occur totally outside the United States, or transcend national boundaries in
terms of the means by wbicli they are accomplished, the persons they appear
intended to coerce or intimidate, or the locale in which their perpetratom operate
or seek asylum.
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phasis added).
Under the ciroumstan~, the Court is doubtfal 1hat the facts regruding 	own words ml
·conduct alone establish reasonable grounds to believe that the investigation is not being
conducted solely on the basis of first amendment.
The Court is satisfied, however, that Scction.1861 also permits coa.~deratioo of the
related conduct o 	in dctemrining whether the
first amendment requirement is satisfied. The t~t of Section 1861 does not restrict the Court to
considering only the activities of the subject of the invemgation in determining whcthar the
investigation is ''not conducted solely on the basis of activities promcted by the first
amendment., Rather, the pertinent statuklry text focuses on the character (protected by the first
amendment or not) of the "aaivities" that are the "basis" of the lnvcstisation.
According to the application, the government is investigating~t on1J on the
buis ofhis awn personal words and oouduct (which, as noted, suggmt sympathy toward, ifoot
support 04 international teirorisrn), but also on the bllSis of the admitted or suspected-
. And, as.discussed above, those activities of
constitute a part of the Court's basis for finding reasonable grounds to
believe that the investigation 0-is an investigation to protect against international
terrorism, as required under Section 1861. Under these ci~e and
appropriate under Section 1861 to consider the llCtivities o~ in
determining whether the investigation o-is conducted solely on the basis of activities
protected by the first amendment.
ctivi.ties include
. Such activities, o_f coursc1 would not be protected
by the first amendment even if they were carried out by a United States person. .ru:conlingl.y, the
application demonstrates reasonable gromids to believe that the investigation o ~ is not
~ ~ BrMdenbum y. Ohio, 395 U.S. #4, 447 (1969) (reaffirming that the fust
amendment does not permit the government "to forbid or proscn'be advocacy of the use of force
or law violation except where such advocacy is directed to inciting or producing imminent
lawless action and is likely to incite or produce such actionj; Virginia y. Black. S38 U.S. 343.
359-60 (2003) (discussing "true threats" falling outside the protection of the first amendment).
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being "conducted solely on the basis ofactivities protected by the tint amendment.'" ··
D. 	Co.ndusfon
For the foregoingmlSODS~ the Court fiads that tfu: ~on in. t:M 4bo~
matter shows reasonable grounds to believe that (1) the tangr'bJe tJUass sought are ceieVant t.o an
' 	8J.1tborized in.vc&tiptim\ bl protect e.pi'DBt. W.tcma.~ ~and (l) ~ m~oo i;~
beins conducted solely upo.n the basis of act.ivitiat protecttJd by Che tint ameodment.
Issued this l~dayofFebruary, 2013.
J8HN D. BATES
'Judge, United States Fomgn
lmelligence Surveillance Court
' The ter.m "solely" in Section 1861 makes clear that the invemgation can be based partly
on activities protected by the first ammdment, provided that there are reasonable grounds to
believe that at least one basis for the investigation is not entitled to first ammdmcnt protection.
Q:.United States v. Rosen,·447 F. Supp.2d 538, 548 (E.D. VL 2006) (concluding based on the
similar ''plain language" of SO U.S.C. § 1805(a) that a finding of probable cause t.o believe that a
target is an agent of a foreign power, which is required t.o authorize electronic surveillanc.e, "may
rely in part on activities protected by the First Amendment provided the detennination also relies
on activities not protected by the First Amendment").
1---CM~ ~;>uty
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ta a true arid correct oop~ ·(1{ ~lt'
orig
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