Satellite Surveillance: Domestic Issues
Updated June 27, 2008
Richard A. Best Jr.
Specialist in National Defense
Foreign Affairs, Defense, and Trade Division
Jennifer K. Elsea
American Law Division
Satellite Surveillance: Domestic Issues
Reconnaissance satellites, first deployed in the early 1960s to peer into denied
regions of the Soviet Union and other secretive enemy states, have from time to time
been used by civilian agencies of the federal government to assist with mapping,
disaster relief, and environmental concerns. These uses have been coordinated by the
Civil Applications Office at the U.S. Geological Survey, a component of the Interior
Department. Post 9/11, the Bush Administration has sought to encourage use of
satellite-derived data for homeland security and law enforcement purposes, in
addition to the civil applications that have been supported for years. In 2007, it
moved to transfer responsibility for coordinating civilian use of satellites to the
Department of Homeland Security. The initiative was launched, however, apparently
without notification of key congressional oversight committees.
Members of Congress and outside groups have raised concerns that using
satellites for law enforcement purposes may infringe on the privacy and Fourth
Amendment rights of U.S. persons. Other commentators have questioned whether
the proposed surveillance will violate the Posse Comitatus Act or other restrictions
on military involvement in civilian law enforcement, or would otherwise exceed the
statutory mandates of the agencies involved. Such concerns led Congress to preclude
any funds in the Consolidated Appropriations Act, 2008 (H.R. 2764, P.L. 110-161),
from being used to “commence operations of the National Applications Office ...
until the Secretary [of the Department of Homeland Security] certifies that these
programs comply with all existing laws, including all applicable privacy and civil
liberties standards, and that certification is reviewed by the Government
Accountability Office.” (Section 525.) Similar language has been included in
FY2009 homeland security appropriations bills.
This report provides background on the development of intelligence satellites
and identifies the roles various agencies play in their management and use. Issues
surrounding the current policy and proposed changes are discussed, including the
findings of an Independent Study Group (ISG) with respect to the increased sharing
of satellite intelligence data. There follows a discussion of legal considerations,
including whether satellite reconnaissance might constitute a “search” within the
meaning of the Fourth Amendment; an overview of statutory authorities, as well as
restrictions that might apply; and a brief description of executive branch authorities
and Department of Defense directives that might apply. The report concludes by
suggesting policy issues Congress may consider as it deliberates the potential
advantages and pitfalls that may be encountered in expanding the role of satellite
intelligence for homeland security purposes.
The report will be updated as new information becomes available.
The Independent Study Group....................................5
National Applications Office (NAO)...............................8
Searches and Non-searches Distinguished......................14
Reasonable Warrantless Searches............................19
Statutory Authorities and Restrictions.............................20
The National Security Act..................................21
The Posse Comitatus Act and Statutory Exceptions..............21
Executive Branch Authorities...................................25
Executive Order 12333....................................25
Satellite Surveillance: Domestic Issues
The development of satellite reconnaissance systems is one of the major and
enduring accomplishments of the U.S. Intelligence Community. Beginning in the
Eisenhower Administration, officials in the Department of Defense (DOD) and the
Central Intelligence Agency (CIA) developed “remote sensing” devices that would
permit the gathering of accurate information on capabilities of potential enemies
without entailing the risks of manned overflights or of covert agents. Satellite
imagery undergirded U.S. strategic planning for a quarter century and a series of arms
control agreements with the Soviet Union. In early years, film canisters were
returned to earth and processed at ground stations for further dissemination. In the
1970s it became possible to forward data by electrical transmission directly to
The efforts of intelligence agencies are focused abroad, and satellite passes were
optimized to gather information on areas of interest, mostly in Europe and Asia. At
the same time, satellites also passed over U.S. territory, and collection on domestic
targets could be obtained as a “free good.” In addition, it was often necessary to
undertake “engineering passes” by which technical specialists could compare
imagery with data obtained directly from ground observation. Engineering passes
provided detailed aerial photography of domestic sites. Declassified documents
published by the National Security Archive indicate that as early as 1968
consideration was being given to provide images captured by intelligence satellites
to civilian agencies on issues such as hydrology and oceanography, mapping, and
In the mid-1970s, there was extensive concern about past efforts of the CIA and
other agencies to monitor U.S. persons, and these concerns extended to
reconnaissance satellites.2 The 1975 Rockefeller Commission (the Commission on
CIA Activities Within the United States) reviewed the issues involved in domestic
overhead photography and reported that the CIA, then in charge of most satellite
efforts, had provided photography for mapping, assessing natural disasters,
conducting route surveys for the Alaska pipeline, national forest inventories,
1 See National Security Archives, U.S. Reconnaissance Satellites: Domestic Targets:
Documents Describe Use of Satellites in Support of Civil Agencies, [http://www.gwu.edu/
~nsarchiv/NSAEBB/NSAEBB229/index.htm], September 14, 2007.
2 Initially, access to satellite imagery by civil agencies was facilitated, beginning in the
Eisenhower Administration, by the President’s Science Adviser and the President’s Science
Advisory Committee (PSAC). In January 1973, President Nixon abolished the PSAC and
the position of Science Advisor, a move which complicated use of classified data for civil
determining the extent of snow cover in the Sierras to forecast the extent of runoff,
and detecting crop blight in the Plains States. The Commission noted that it was
possible that a small percentage of aerial photography was being used for law
enforcement and was “outside the scope of proper CIA activity.” “The Commission
believes, however, that the legislators, when they prohibited the CIA from engaging
in law enforcement activities in the 1947 enactment of the National Security Act,
could not have contemplated the systems presently in use.”3
In response to the Rockefeller Commission’s conclusions and other concerns,
the Civil Applications Committee (CAC) was established in 1975 to serve as an
interface through which the needs of civilian agencies for satellite data could be
reviewed and prioritized. The CAC was created by a joint memorandum signed by
the Assistant to the President for National Security Affairs, the Director of the Office
of Management and Budget, and the Director of Central Intelligence.
With a staff of some 10 officials, the CAC has provided the principal means of
communication between civil users of intelligence capabilities and the providers in
the Intelligence Community under the chairmanship of the Director of the U.S.
Geological Survey, a component of the Interior Department, and there is a secretariat
hosted by the Geological Survey.4
By July 2001, the CAC had a membership of some 10 departments and
U.S. Department of Interior
U.S. Department of Agriculture
U.S. Department of Commerce
U.S. Department of Energy
U.S. Department of Transportation
U.S. Environmental Protection Agency
National Emergency Management Agency
National Aeronautics and Space Administration
National Science Foundation
U.S. Army Corps of Engineers
3 U.S., Commission on CIA Activities Within the United States, Report to the President,
June 1975, p. 230. The Commissioners added: “It should be noted that the CIA did turn
down a request from the Alcohol and Tobacco Unit of the Treasury Department to help
locate moonshine stills in the North Carolina mountains using infrared photography, on the
ground that such activity was law enforcement in nature.” p. 231, n.
4 Department of the Interior, Fact Sheet, Civil Applications Committee, April 2001.
Associate members included the following:
National Imagery and Mapping Agency5
National Reconnaissance Office
Central Intelligence Agency (Director of Central Intelligence Environmental and
Societal Issues Center)
Department of State
The end of the Cold War saw increased interest in exploiting the Intelligence
Community’s collection and analytical assets for civilian purposes, especially in
regard to environmental issues. Intelligence agencies provided more analytical
products to government agencies outside of the national security community. In
1992, as part of Project Medea, a group of civilian scientists were asked to review
data collected by intelligence satellites to determine the usefulness of the data to the
scientific community. In a number of areas, information gathered by intelligence
satellites was deemed especially important — deforestation, indications of global
warming, and reductions in rain forests. In response to this effort, President Clinton
issued Executive Order 12951,6 making public some 860,000 satellite images taken
from 1960 to 1972. Some of these images were of U.S. territory — clouds off the
California coast, the Mojave Desert, the Luquillo experimental forest in Puerto Rico,
and permafrost in Alaska.7
The use of intelligence resources for domestic purposes was described by then-
Director of Cental Intelligence (DCI) John Deutch in a 1996 speech:
In the United States, the Intelligence Community provides support to the Federal
Emergency Management Activity and other civil agencies when there is a natural
disaster. Using data from a variety of sources, within hours after a disaster
strikes we can assess and report the nature and scope of the damage —
conditions of roads, airports and hospitals; and the status of potential secondary
threats such as dams and nuclear facilities. Here I would like to make two
First, we only provide this support upon request. To image US territory, we must
first get permission.
Second, we provide unclassified products generated from classified information.
We have a Disaster Response Team that can quickly produce unclassified maps
5 NIMA was renamed the National Geospatial-Intelligence Agency (NGA) in November
6 Executive Order 12951, Release of Imagery Acquired by Space-Based National
Intelligence Reconnaissance Systems, 60 Fed. Reg. 10,789 (February 24, 1995).
7 See Loch K. Johnson, Bombs, Bugs, Drugs and Thugs: Intelligence and America’s Quest
for Security (New York: New York University Press, 2000), esp. pps. 50-71; William J.
Broad, “U.S. Will Deploy its Spy Satellites on Nature Mission,” New York Times, November
and diagrams that show the damage resulting from an earthquake, fire, flood,8
hurricane, oil spill, or volcanic eruption.
Although the precise capabilities of intelligence satellites is classified, they are
known to have greater resolution than anything available in commercial markets,
such as Google Earth, SPOT, or Landsat. Their usefulness would appear to be
unquestionable for map-making and related civilian uses. Satellite information has
continued to have important civil applications in such disparate areas as the
movement of glaciers in Yakutat Bay in Alaska, forest fires in Montana, and near
Mount Pinatubo in the Philippines. They are regularly relied on to provide coverage
of environmental events. Information from intelligence satellites supplements other
sources of overhead imagery available to government agencies — from NASA
satellites, commercial satellites, or from manned aircraft or unmanned aerial vehicles
Generally, satellite-derived intelligence is combined by the National Geospatial-
Intelligence Agency (NGA) with information from airborne platforms, commercial
imagery, and other information to meet the needs of military commanders and senior
policy makers. The NGA employs a wide range of techniques to prepare mapping
and elevation data, scene visualization, and situation analysis. Working through the
CAC, the NGA has become a routine partner in disaster relief efforts such as those
following the 2004 undersea earthquake and tsunami in the Indian Ocean and
Hurricane Katrina in 2005, when the NGA provided graphics for “relief efforts that
depicted the locations of major airports, police and fire stations, emergency
operations centers, hazardous materials, highways and schools.”9 NGA argues that
it “has a strong tradition of collaborating with colleagues across government, non-
profit academia and industry arenas to exchange ideas, share best practices, display
new GEOINT [geospatial intelligence] solutions and technologies and discuss
potential tradecraft advances as they relate to GEOINT.”10 Thus, even though
commercial data are available for procurement by any government agency, the NGA
and other intelligence agencies believe that their experience and expertise will enable
them to provide “value-added” information support to agencies responsible for
homeland security and law enforcement.
Satellites are also capable of supporting measurement and signature analysis
(MASINT), which is an important, but little known, intelligence discipline, involving
8 John Deutch, “The Environment on the Intelligence Agenda,” Speech at the World Affairs
Council in Los Angeles, California, July 25, 1996.
9 Robert B Murrett, “NGA — Then and Now; Celebrating 10 Years of GEOINT,”
Pathfinder, September/October 2007, pp. 4-5.
10 Murrett, p. 10. GEOINT is defined as an intelligence discipline that has evolved from the
integration of imagery, the information derived from the analysis of imagery, and additional
information related to a particular geographic location. See U.S., National Geospatial-
Intelligence Agency, “National System of Geospatial Intelligence: Geospatial Intelligence
(GEOINT) Basic Doctrine, Publication 1-0,” September 2006, pp. 7-8.
information derived from the analysis of radar, laser, infrared, and other emanations.
MASINT could be useful for domestic applications in some circumstances; in
particular, it might provide evidence of the existence and location of weapons of
mass destruction (WMD) materials or WMDs themselves prepared or smuggled in
by hostile individuals or groups. The capabilities that satellite-derived information
might add to homeland security and law enforcement efforts are inevitably classified
but could be investigated and assessed by congressional committees.
The comparative advantages of intelligence satellites are that they can be
targeted in an emergency (assuming no foreign intelligence requirements take
precedence), their products are cost-free to the requesting agency, and their resolution
is higher than what is otherwise available. On the other hand, they may not be
available for civil use at a particular time — a prolonged international crisis or
ongoing combat operations could significantly limit their availability for civilian
uses. They do not “belong” to the civilian agency on a permanent basis.
Furthermore, the extreme resolution of their imagery may be superfluous for the tasks
It nevertheless remains uncertain exactly how much “value added” satellites
would offer for homeland security and law enforcement purposes. Clearly, additional
imagery sources could be useful in many situations, and sophisticated techniques for
acquiring information about the presence of WMD materials would be highly
valuable, albeit in extremely unlikely circumstances. What other uses would be
important remain uncertain and cannot be determined on the basis of unclassified,
The Independent Study Group
The 9/11 attacks led to a general reconsideration of the relationships between
law enforcement and intelligence agencies and in 2002, to the establishment of the
Department of Homeland Security (DHS), which has both law enforcement and
intelligence responsibilities. Concern with threats to homeland security and
international terrorism generally led to a perceived need for increased imaging of the
United States. In May 2002, the Senate Intelligence Committee recognized “the
valuable role that the National Imagery and Mapping Agency (NIMA) [later renamed
as the National Geospatial-Intelligence Agency (NGA)] can play in supporting
homeland security operations generally and the newly created U.S. Northern
Command, specifically.” The Committee expressed concern, however, about the
process for authorizing imaging the United States:
... [T]he Committee is concerned that the checks and balances in place to ensure
against improper imaging requests not be circumvented or otherwise diminished.
At the same time, the Committee does not want the added scrutiny given to such
requests to unnecessarily hinder urgent collection needs that may arise.
The Committee directed the DCI in coordination with NIMA and the National
Reconnaissance Office (NRO) [the organization that builds and operates satellites]
to provide a report on the processes for using intelligence satellites to image the U.S.
and what changes are being proposed or considered. The report was requested to be
provided to the Committee by March 1, 2003.11
In December 2004, the Intelligence Reform and Terrorism Prevention Act of
2004 (P.L. 108-458) established the position of Director of National Intelligence
(DNI), in part as a replacement for the DCI, to coordinate intelligence activities and
their relationship with law enforcement. One of the intelligence capabilities that
appeared to have a greater potential contribution to law enforcement and homeland
security was the data collected by satellites.
A further review of the potential contribution of satellite surveillance to the civil
sector was undertaken in 2005 by an Independent Study Group (ISG) established by
the Office of the DNI and the Interior Department’s Geological Survey (USGS).
Keith Hall, a former director of the NRO, was designated as chairman of the ISG.
Nine civilian experts and three from government agencies completed the membership
of the ISG, with staff support from the Booz Allen Hamilton consulting firm.
The group reviewed the use of satellite information for scientific and
environmental research, including monitoring and recovery from natural disasters and
related hazards, and considered the potential for additional missions. The ISG
concluded that far better use could be made of satellite-derived data:
As the nation searches for methods to improve information and intelligence
sharing for homeland security, the ISG believes that geospatial information —
often, but not exclusively, maps and map products — are a compelling tool for
sharing information. While localities and police services may differ in their
sophistication with remote sensing data and technology, virtually everyone has
familiarity with maps and map products as decision aids. This is an area where
both the Intelligence Community and the civil agencies have extensive
experience providing information, even information derived from sensitive12
The ISG discussed at some length the past inability or unwillingness of law
enforcement agencies to make use of information available from intelligence
satellites. It argued that the law enforcement community:
... has virtually no significant engagement with the IC [Intelligence Community]
for the use of [satellite] collection resources. They are viewed by the IC as a
major risk to ‘sources and methods’ during the discovery process inherent in
prosecutions and trials. They are also constrained by extremely limited budgets,
and they generally focus on criminal activity post event rather than preventing
an event. These attributes make them unappealing to the IC as a customer and
partner. In cases where important and useful IC information is provided, the
11 U.S., Congress, 107th Congress, 2d session, Senate, Select Committee on Intelligence, To
Authorize Appropriations for Fiscal Year 2003 for Intelligence and Intelligence-Related
Activities of the United States Government, the Community Management Account, the
Central Intelligence Agency Retirement and Disability System, S.Rept. 107-149, May 13,
12 Independent Study Group Final Report, Civil Applications Committee (CAC) Blue Ribbon
Study [hereafter cited as ISG Report], September 2005, p. 40.
highly classified nature of the sources and methods involved are either placed in
jeopardy in the discovery process leading up to prosecution, or the prosecution
is jeopardized by potential IC decisions to not allow their information to be so
used. This conflict of interests and objectives is a classic prescription for
dysfunction, and has led the IC and LE [law enforcement] communities to13
generally treat each other with extreme caution.
The ISG noted the opportunities for the domestic applications of satellite
reconnaissance, but argued that not enough was being done to take advantage of
The current system operates in a risk-averse vice risk-management environment
where protection of sources and methods and individual civil liberties, while
important concerns to be carefully considered and taken into account, are the
predominant concerns unreasonably operating to limit appropriate support to the14
defense of homeland.
The ISG suggested that the disinclination to use information from intelligence
satellites for law enforcement and homeland security purposes was another instance
of the intelligence/law enforcement “wall” that was extensively discussed in the
aftermath of 9/11.15 The protection of intelligence sources and methods (from the
discovery process in a judicial proceeding) was an ongoing concern of intelligence
agencies, while the desire to ensure that intelligence agencies are not used to gather16
information on U.S. persons had led to the establishment of the CAC in the 1970s.
The result of these deeply felt concerns in practice had meant that officials in all
agencies believed they had sound reasons to avoid, or at least minimize, information
sharing between intelligence and law enforcement agencies.
The drafters of the ISG sought to establish a venue through which information
from intelligence satellites could be shared with DHS and law enforcement agencies.
They argued: “The root of the problem is a lack of a clearly articulated
comprehensive policy on the use of IC [Intelligence Community] capabilities for
domestic needs.”17 Based on a judgment that the CAC had not effectively provided
information to law enforcement agencies, the commission suggested that DHS, a
member of the Intelligence Community, serve as the intermediary between the
Intelligence Community and state, local, and tribal law enforcement agencies serving
13 ISG Report, p. 27.
14 ISG Report, p. 10.
15 See U.S. Congress, 107th Congress, 2d session, Senate Select Committee on Intelligence,
House Permanent Select Committee on Intelligence, Joint Inquiry into Intelligence Activities
Before and After the Terrorist Attacks of September 11, 2001, S.Rept. 107-351; H.Rept. 107-
792, December 2002, esp. pp. 363-368; U.S., National Commission on Terrorist Attacks
Upon the United States, The 9/11 Commission Report, 2004, esp. pp. 78-80. See also CRS
Report RL33873, Sharing Law Enforcement and Intelligence Information: The
Congressional Role, by Richard A. Best Jr.
16 The abiding nature of these concerns was demonstrated in the September 6, 2007 hearing
17 ISG Report, p. 5.
as the executive agent of what it termed a new Domestic Applications Office (DAO).
This recommendation was based on the premise that “DHS was created to help foster
better relations between all facets of LE [law enforcement] and the IC [Intelligence
Community], as to facilitate the collection and movement of terrorism-related
intelligence and information in ways not previously considered pre 9/11.”18
The Administration has stated that the results of the ISG were briefed to all
relevant agency and department heads, but it did not indicate that congressional
committees were similarly briefed.19
National Applications Office (NAO)
The Administration apparently accepted the thrust of the recommendations of
the ISG. In March 2006, a Memorandum of Understanding between the Interior and
Homeland Security Departments was signed assigning responsibilities of the two
departments for creating and maintaining geospatial information to support homeland
security. In May 2007, the DNI designated DHS as the executive agent and
functional manager of what was designated as a National Applications Office (NAO).
There was, however, no public notice of the establishment of the new office at that
According to the Administration fact sheet, Congress agreed with this approach
and provided funding for the office to initiate operations in the fall of 2007:
“Intelligence and Appropriations oversight committees have been briefed and
approved the reprogramming.”20 The reprogramming in question probably involved
a transfer of funds from an account under the control of the DNI to the DHS.21
Funding for the Office of the DNI is not part of Homeland Security appropriations
legislation but is provided in intelligence appropriations included in defense
18 ISG Report, p. 10.
19 National Applications Office, Charter, February 2008, p. 2.
20 Department of Homeland Security, “Fact Sheet: National Applications Office,” August
21 The ISG recommended that elements of the new initiative “not come out of DHS
resources, rather would be resourced by the DNI.” ISG Report, p. 17; another element, a
program to ensure future domestic applications are considered in the acquisition of
surveillance systems “would be initially funded by the DNI and executed by the [DHS].
Over a period of 10 years the program dollars would be reduced at the DNI level and
increased at the execution/Agency level and sustained at the Agency level thereafter.” Pp.
22-23. It was envisioned that DHS would be responsible for facilities, administration, and
infrastructure for the effort; these functions were probably not associated with the NAO in
the FY2008 budget submission submitted early in 2007. In late October 2007, Donald Kerr,
the recently confirmed Principal Deputy DNI told a trade symposium that funding
mechanisms for multi-agency initiatives are currently under review; one approach would be
to budget funds to the ODNI and then have them transferred to individual agencies; another
would be to have one agency serve as the executive agent for a program. See Remarks and
Q&A by the Principal Deputy Director of National Intelligence Dr. Donald Kerr to the 2007
GEOINT Symposium, Sponsored by the United States Geospatial Intelligence Foundation,
San Antonio, Texas, October 23, 2007.
appropriations legislation. It is possible that this funding was provided in classified
annexes of defense legislation that was not brought to the attention of the House
Homeland Security Committee or to the Homeland Security Subcommittee of the
It became clear, however, that these actions had not been approved by the House
Committee on Homeland Security, which has oversight jurisdiction over the DHS.
The publication of media accounts of the establishment of the NAO in August 200722
took Members of the Committee by surprise. At a September 6, 2007, hearing on
“Turning Spy Satellites on the Homeland: the Privacy and Civil Liberties
Implications of the National Applications Office,” Committee Chairman
Representative Bennie Thompson complained about the absence of notification:
There was no briefing, no hearing, no phone calls from anyone on [the DHS]
staff to inform any member of this committee of why, how or when satellite
imagery would be shared with police and sheriff’s offices nationwide.
This concern was shared by the Ranking Member, Representative Peter King.
At the same hearing, witnesses from civil liberties organizations criticized
“turning our nation’s surveillance capabilities inwards upon our own population,”
and argued, “If spy satellites are to be deployed domestically, it is vital that the most
rigorous checks and balances and oversight mechanisms be put in place.”23 Although
they had little criticism of using satellite data for mapping and disaster relief
purposes, they expressed deep concern about the possibility of highly sophisticated
technical systems being used on a wide scale by law enforcement agencies. Lisa
Graves, the Deputy Director of the Center for National Security Studies, argued that
... deploying these extraordinary powers against people in the U.S. would
fundamentally alter the relationship between the government and the governed.
Calling this ‘Big brother in the sky’ is modest given the array . . . that might be
available multi-headed, medusa-like powers to monitor Americans encompassed24
by this array of arrays.
22 Robert Block, “U.S. to Expand Domestic Use of Spy Satellites,” Wall Street Journal,
August 15, 2007; Joby Warrick, “Domestic Use of Spy Satellites to Widen,” Washington
Post, August 16, 2007; Eric Schmitt, “Liberties Advocate Fear Abuse of Satellite Images,”
New York Times, August 17, 2007.
23 See Statement of Barry Steinhardt, Director, Technology and Liberty Project, American
Civil Liberties Union on the Privacy and Civil Liberties Implications of Domestic Spy
Satellites before the House Committee on Homeland Security, September 6, 2007; also,
Statement of Lisa Graves, Deputy Director of the Center for National Security Studies,
“‘Big Brother in the Sky’ and other Grave Civil Liberties Concerns about the
Administration’s Unilateral Action to Deploy Military Satellites to Spy on the Continental
United States for Domestic Law Enforcement Purposes,” before the Committee on
Homeland Security, United States House of Representatives, September 1, 2007.
24 Lisa Graves, Deputy Director of the Center for National Security Studies, Statement
before the Committee on Homeland Security, United States House of Representatives,
September 1, 2007.
The witnesses recommended that the committee investigate further and withhold
funds until civil liberties issues are resolved.
The principal DHS witness, Charles Allen, the Under Secretary for Intelligence
and Analysis and a long-time intelligence official, defended the new office:
National Technical Means (NTM) — such as overhead imagery from satellites
— have been used for decades, lawfully and appropriately, to support a variety
of domestic uses by the US government’s scientific, law enforcement and
security agencies. The NAO, when operational, will facilitate the use of remote
sensing capabilities to support a wide variety of customers, many of whom
previously have relied on ad hoc processes to access these intelligence
capabilities. The NAO will provide not only a well-ordered, transparent process
for its customers but also will ensure that full protection of civil rights, civil25
liberties and privacy are applied to the use of these remote sensing capabilities.
The leadership of the Homeland Security Committee stated that
we are gravely concerned by the Department’s [DHS’] lack of progress in
creating the appropriate legal and operational safeguards necessary for ensuring
that military spy satellites do not become the ‘Big Brother in the Sky’ that some
in the privacy and civil liberties community have described. Accordingly, the
Committee on Homeland Security, like the House Homeland Security
Appropriations Subcommittee, have asked the Department [DHS] to provide a
written legal framework for the NAO and the standard operating procedures
(SOPs) under which it will operate in order to allow Members an opportunity to
review the plans and suggest changes to ensure that the Constitutional rights of26
all Americans are protected.
Concern was also expressed that the use of satellites to support law enforcement
efforts might not be consistent with the Posse Comitatus Act of 1878, which
precludes the use of military forces to execute domestic laws.27 Some observers
argue, however, that although the Posse Comitatus statute applies to the uniformed
25 Assistant Secretary Charles E. Allen, Chief Intelligence Officer, Department of Homeland
Security, Statement for the Record before the House of Representatives Committee on
Homeland Security, September 6, 2007. Traditionally the term NTM has included various
intelligence disciplines, including signals intelligence; however, at this hearing Allen stated
offered the following clarification: “Allow me to state categorically, the NAO will have no
relationship or interaction with either the FISA [Foreign Intelligence Surveillance Act] or
the Terrorist Surveillance Programs.” It should be noted, however, that the ISG included
“NSA [National Security Agency] worldwide assets” among the intelligence capabilities
under discussion. Pp. 8, 14.
26 Letter from Chairman Bennie G. Thompson, Chairman, House Committee on Homeland
Security, et al. to the Hon. David E. Price, Chair, Subcommittee on Homeland Security,
Committee on Appropriations and the Hon. Harold Rogers, Ranking Member, Subcommittee
on Homeland Security, Committee on Appropriations, September 26, 2007.
27 For an overview of the Posse Comitatus Act, see CRS Report 95-964, The Posse
Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law, by
services, they do not apply to DOD agencies providing information to civilian law
According to media reports, in late September 2007, DHS delayed opening the
NAO in order to provide congressional committees with more detailed information
regarding NAO plans with special attention to civil liberties issues.29 Until the NAO
opens, the CAC reportedly will continue to respond to domestic needs.
After several months of consideration, the Administration was prepared to
submit plans for the NAO to Congress. In testimony to the Intelligence, Information
Sharing and Terrorism Risk Assessment of the House Homeland Security Committee
on February 26, 2008, Charles Allen stated, “We’re in the final process of having the
charter [of the NAO] signed by the principals involved, the Secretary of Defense, the
Attorney General, the Director of National Intelligence, and the Secretary of the
Interior. We believe we have an agreed upon charter that will be very clear to you
on permissible and impermissible uses of the National Applications Office.... We are
very confident that we have privacy and civil rights and civil liberties fully
The Charter of the NAO subsequently provided established a framework for
addressing requests for IC support to domestic missions. The NAO will “receive,
evaluate, consolidate, and prioritize requests.” It will, in addition, “conduct legal
reviews of all requests for access to IC capabilities or archived data to determine
whether such access is consistent with the U.S. Constitution and existing laws,
policies, and procedures.” Its goals include the promotion of information sharing and
the protection of intelligence sources and methods, and the NAO is to advocate to the
IC the budgetary implications of domestic missions. The Charter precludes any
authority of the NAO to accept requests to use IC capabilities to intercept or acquire
communications, including those covered by Title III of the Omnibus Safe Streets
and Crime Control Act of 1968 or the Foreign Intelligence Surveillance Act (FISA).
Such requests are to be referred to the Justice Department. The Charter also specifies
that no requests for IC support to law enforcement will be accepted until all
associated legal, privacy, civil rights, civil liberties, and policy issues have been
According to the Charter, the NAO will be overseen by the National
Applications Executive Council (NAEC). The NAEC will be “tri-chaired” by the
Deputy Secretary of Homeland Security, the Deputy Secretary of DOI, and the
Principal Deputy of the DNI. It will be composed of senior-level agency
representatives and their advisors.
28 See infra at 19-22.
29 See Chris Strohm, “Opening of DHS Satellite Office Delayed Amid Criticism,”
Government Executive, October 1, 2007.
30 Testimony of Charles E. Allen, Under Secretary, Intelligence and Analysis, Department
of Homeland Security, before Intelligence, Information Sharing and Terrorism Risk
Assessment Subcommittee, Homeland Security Committee, House of Representatives,
February 26, 2008, Transcript, Federal News Service.
The NAO Charter also states that
All activities contemplated under this Charter will be conducted pursuant to the
respective authorities and within the mission priorities of the individual Parties
to this Charter. This Charter, in and of itself, does not result in transfer of legal
authority, appropriated funds, or any other financial obligations among the
It further states that the Interior Department will provide, on a reimbursable basis, the
initial facility for the NAO at the USGS Advanced Systems Center in Reston,
Virginia, and that the DNI will provide National Intelligence Program (NIP) funding
In June 2008, both the Subcommittee on Homeland Security of the House
Appropriations Committee and the Senate Appropriations Committee included
language in their homeland security appropriations bills for FY2009 that would
withhold authorization for NAO operations until DHS submits and the Government
Accounting Office (GAO) reviews an explanation of the legality of NAO operations.
The future of U.S. satellite programs is uncertain at present. Intelligence and
military satellite programs require multi-billion dollar investments, and some
observers have argued that many of their functions could be performed by UAVs or
by greater reliance on commercial satellites. The ISG notes that enhancement of the
current structure for using intelligence satellites to support homeland security and law
enforcement would require “major augmentation of resources, people, budget
authority and a new charter to capture the new environment in which it would
operate.”31 Further, the ISG explicitly recommended that “the domestic users be
given a ‘seat at the table’ to influence policy, R&D and acquisition decisions.”32
Some skeptics suggest that adding requirements for supporting homeland defense and
law enforcement may be influenced by a determination to provide a broader
justification for satellite programs that are currently under close scrutiny in both the
executive branch and in Congress.
Members’ concerns about the constitutionality of the National Applications
Office have been expressed not only in correspondence but are also reflected in
statutory law. The Consolidated Appropriations Act, 2008 (P.L. 110-161, Division
E, Section 525), signed by the President on December 26, 2007, provides that “None
of the funds provided in this Act shall be available to commence operations of the
National Applications Office ... until the Secretary certifies that these programs
comply with all existing laws, including all applicable privacy and civil liberties
standards, and that certification is reviewed by the Government Accountability
31 ISG Report, p. 25.
32 ISG Report, p. 4.
Although the NAO Charter would delay use of IC capabilities for domestic law
enforcement purposes until the legal issues were resolved, the leadership of the
House Homeland Security Committee continued to express its concerns, noting that
the NAO Charter had been drafted without any input from the Committee. In a letter
of April 7, 2008, the Homeland Security Committee Chairman, Representative
Thompson, joined by subcommittee chairpersons, Representatives Carney and
Harman, indicated their opposition to the establishment of the NAO until the legal
framework for supporting law enforcement efforts was established. They argued,
“Bifurcating the NAO into ‘easy to do’ domains and a ‘hard to do’ law enforcement
domain is not an option.”
Observers see a number of legal issues involved in the use of satellite-derived
information for law enforcement purposes, although discussion and analysis are
complicated by the classified nature of satellite capabilities and operations and the
absence of public information about ways that satellite-derived information could be
used by law enforcement agencies. Most frequently, the proposed expansion of the
use of satellite intelligence for domestic law enforcement purposes has been called
into question on the basis of possible civil liberties implications, including concerns
about privacy rights.
Other commentators have also questioned whether the proposed surveillance
will violate the Posse Comitatus Act, post-Civil War legislation that restricted the use
of military forces for domestic law enforcement. A key consideration in this regard
is the nature of the intelligence agencies that would be involved. The CIA is a
civilian institution to which some military personnel on active duty are assigned.
DHS is also a civilian department with both law enforcement and intelligence
responsibilities. The NRO, which develops and operates satellites, and the NGA,
which processes and analyzes the data collected, are components of DOD. Although
the NRO is currently headed by a civilian, both agencies have sizable numbers of
active duty military personnel assigned. Questions about the appropriate or lawful
assignment of military personnel to functions that substantively support domestic law
enforcement thus have particular relevance to the NGA and NRO.
The following sections describe the state of the law regarding the application of
Fourth Amendment analysis to satellite surveillance (not including electronic
surveillance of communications33), as well as the current statutory framework
regarding intelligence collection and military involvement in law enforcement.
33 Presumably, the National Applications Office will have no role with respect to
communications intelligence gathered by means of NSA satellites. See Statement of
Assistant Secretary Charles E. Allen, supra note 23. If communications intelligence by
satellite in some form is involved in the proposed program, legal considerations not
addressed here may come into play.
The Fourth Amendment provides that
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated; and no
Warrants shall issue but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to
In general, the amendment prohibits the government from conducting unreasonable
searches or seizures of “the people” and their property, in most cases (subject to a
number of exceptions) requiring a warrant supported by a particularized description
of the object of the search or seizure.34 The term “search” refers to a governmental
infringement of an expectation of privacy that society is prepared to consider
reasonable, that is, under circumstances where an individual reasonably expects that
the privacy of his or her person, home, papers, or effects are protected from uninvited
intrusion.35 A “seizure” occurs when there is meaningful governmental interference
in a property interest36 or intentional detention of a person.37 Searches and seizures
can involve intangible as well as tangible things.38
Government surveillance where there is no legitimate expectation of privacy
does not amount to a “search” within the meaning of the Fourth Amendment and
therefore carries no requirement for a warrant, probable cause, or even any semblance
of reasonableness. A finding that surveillance does constitute a search leads to an
analysis of whether it was conducted reasonably under the circumstances. All such
analysis tends to be rather fact-intensive, and factors said to be important to the
analysis frequently cut against each other. The circumstances under which satellite
surveillance constitutes a search and, if so, whether it is reasonable, may depend on
what information is collected from where, and how the collection is accomplished.
Searches and Non-searches Distinguished. Traditionally, government
conduct that did not involve a physical trespass of an individual’s person, home,
papers, or effects did not constitute a “search” within the meaning of the Fourth
Amendment. Surveillance that could be accomplished without entering the premises
34 Katz v. United States, 389 U.S. 347, 360 (1967)(Harlan, J., concurring)(stating that
warrantless searches and seizures are per se unreasonable and violative of the Fourth
Amendment “subject only to a few specifically established and well-delineated exceptions”).
35 See, e.g., United States v. Bond, 529 U.S. 334, 338 (2000).
36 Maryland v. Macon, 472 U.S. 463 (1985).
37 Michigan v. Chesternut, 486 U.S. 567 (1988)(police have seized a person if that person
reasonably believes she is not free to leave). Arrests inside a private residence generally
require a warrant, Payton v. New York, 445 U.S. 573 (1980), while arrests outside the home
need only be supported by probable cause, United States v. Watson, 423 U.S. 411 (1976).
38 Warden v. Hayden, 387 U.S. 294, 304 (1967); Wong Sun v. United States, 371 U.S. 471,
of the targeted individual was held not to implicate the Fourth Amendment at all.39
The emphasis on the trespass doctrine appeared to change in 1967 with the Supreme
Court’s decision in Katz v. United States, which held that the Fourth Amendment
protected the petitioner’s conversation intercepted through the use of an electronic
device placed on the outside of a public phone booth.40 The Amendment is now said
to cover people rather than places,41 so that a person might have a legitimate
expectation of privacy even in a public place.
However, Katz also reinforced the “plain view” doctrine, which holds that a
government official who merely observes (or smells, hears, or touches) something
from a lawful vantage point does not conduct a “search.” As Justice Harlan wrote:
What a person knowingly exposes to the public, even in his own home or office,
is not a subject of Fourth Amendment protection. But what he seeks to preserve
as private, even in an area accessible to the public, may be constitutionally42
Whether evidence can be considered to be in “plain view” of a lawfully present
police officer who requires binoculars (or some other vision-enhancing technology)
to view it appears to depend on whether the object is hidden and whether a court
believes the equipment used to view it to be in common use, both of which are
factors in assessing the legitimacy of a person’s expectation to be free from such43
observation. That a person has taken normal precautions to maintain her privacy,
that is, precautions customarily taken by those seeking to exclude others, is also a44
factor in determining legitimacy of expectation.
Echoes of the trespass doctrine repudiated in Katz frequently reverberate
throughout decisions regarding whether a given claim to an expectation of privacy
is reasonable, for example, by determining whether a law enforcement officer was
lawfully positioned to make a particular observation regarding the goings-on in or45
near a private home. Consequently, persons continue to have a greater expectation
of privacy in the home than they have in public places.46 The curtilage of a private
39 Olmstead v. United States, 277 U.S. 438 (1928).
40 389 U.S. 347 (1967).
41 Id. at 353.
42 Id. at 351-52.
43 See WAYNE R. LAFAVE, I SEARCH AND SEIZURE § 2.2 (4th ed., 2004) (suggesting two
factors: “(1) the level of sophistication of the equipment utilized by the police; and (2) the
extent to which the incriminating objects or actions were out of the line of normal sight from
contiguous areas where passersby or others might be”).
44 E.g., id. at 352; United States v. Chadwick, 433 U.S. 1, 11 (1977).
45 E.g. Harris v. United States, 390 U.S. 234 (1968).
46 See Kyllo v. United States, 533 U.S. 27, 31 (2001) (“‘At the very core’ of the Fourth
Amendment ‘stands the right of a man to retreat into his own home and there be free from
unreasonable governmental intrusion.’” (citing Silverman v. United States, 365 U.S. 505,
home47 receives greater protection than privately owned land used for business
purposes. Under the “open field” doctrine, Fourth Amendment protection does not
extend to activities that take place out of doors in an area beyond the curtilage of a
home, despite efforts to maintain privacy and notwithstanding the fact that law
enforcement officers had to commit trespass to come within viewing range,48 unless
perhaps particularly sophisticated sensory enhancement technology is utilized.49
The Supreme Court has not addressed whether satellite imagery constitutes a
search within the meaning of the Fourth Amendment. However, the Court has
applied the expectation of privacy test to aerial surveillance to conclude that no
search was conducted.50 In California v. Ciraolo,51 the Supreme Court determined
5-4 that the aerial observation from an altitude of 1,000 feet of a fenced-in backyard
within the curtilage of a home, conducted without a warrant, did not constitute a
search. The defendant was growing marijuana in a small garden plot in his backyard,
protected by two fences from observation by casual passers by. That the marijuana
could be seen from public navigable airspace without the use of sensory enhancement
equipment defeated the defendant’s claim to a reasonable expectation of privacy,
even in the curtilage of his private home.52
On the same day that Ciraolo was handed down, the Supreme Court issued its
5-4 opinion in Dow Chemical Co. v. United States,53 which addressed aerial
photography of an industrial compound from much greater heights (but still within
navigable airspace) by government regulators using a specialized mapping camera.
The surveillance here was likewise not a search, although the Court suggested that
such surveillance might have been a search had it involved the curtilage of a private
47 The curtilage of a dwelling is “the area to which extends the intimate activity associated
with the ‘sanctity of a man’s home and the privacies of life.’” Oliver v. United States, 466
U.S. 170, 180 (1984)(quoting Boyd v. United States, 116 U.S. 616, 630 (1886)).
48 Hester v. United States, 265 U.S. 57 (1924); Oliver v. United States, 466 U.S. 170, 177-80
(1984) (reaffirming Hester and “open fields” doctrine in light of Katz). The majority
differentiated Katz, involving the interception of a conversation from a public place, as a
search of a person rather than an area. 466 U.S. at 176 & n.6.
49 See Dow Chemical Co. v. United States, 476 U.S. 227 (1986) (discussed infra).
50 For commentary comparing aerial surveillance and other technologies with satellite
surveillance for Fourth Amendment purposes, see Patrick Korody, Note: Satellite
Surveillance Within U.S. Borders, 65 OHIO ST. L.J. 1627 (2004); Ric Simmons, From Katz
to Kyllo: A Blueprint for Adapting the Fourth Amendment to Twenty-First Century
Technologies, 53 HASTINGS L.J. 1303 (2002).
51 476 U.S. 207 (1986).
52 Id. at 213-14.
53 476 U.S. 227 (1986).
home54 or used less commonly available technology.55 The Court also suggested that
imagery taken from a satellite might not be permissible:
It may well be, as the Government concedes, that surveillance of private property
by using highly sophisticated surveillance equipment not generally available to
the public, such as satellite technology, might be constitutionally proscribed56
absent a warrant.
The Court did not explain whether the use of equipment with capabilities identical
to those of the mapping equipment at issue would be less reasonable if such
equipment were mounted on a satellite rather than an aircraft. The infrequency of
private space travel might be a factor tipping in favor of Fourth Amendment
protection, given the Court’s emphasis on the reasonableness of government
officials’ being at a vantage point where any member of the public might plausibly
be. However, any emphasis in the aerial surveillance cases as to the observing
officer’s location in “public navigable airspace” should probably be read as a possible
objection to the use of aircraft flying below navigable airspace, which would be more
physically intrusive than ordinary aerial overflights and might well encroach on
property interests. By contrast, satellites using passive surveillance technologies are
arguably less physically intrusive, possibly making an expectation of privacy from
them less reasonable.
The Supreme Court addressed whether an observation made from a low-flying
helicopter constituted a search in Florida v. Riley,57 a plurality concluding that it did
not. At issue was the use of a police helicopter, hovering at 400 feet (an altitude
prohibited for fixed-wing aircraft), to observe, through an opening in a greenhouse
roof, marijuana growing inside. The plurality read Ciraolo as establishing that so
long as there was no breach of the Federal Aviation Agency (FAA) safety
regulations, the property owner had no legitimate reason to expect privacy with
respect to non-intimate activities undertaken in the curtilage of his home that were
plainly visible from above. Five justices would have preferred to consider how often
members of the public actually make low-altitude helicopter flights over populated
areas in determining whether the claimed expectation of privacy was reasonable. The
plurality suggested that surveillance overflights that comply with FAA regulations
might nevertheless constitute searches if they were to involve “undue noise,  wind,
54 Id. at 237 & n.4 (finding it “find it important that this is not an area immediately adjacent
to a private home, where privacy expectations are most heightened.”) The Court also found
it significant that Dow made no effort to guard against aerial surveillance. Id.
55 Id. at 238 (“...EPA was not employing some unique sensory device that, for example,
could penetrate the walls of buildings and record conversations in Dow’s plants, offices, or
laboratories, but rather a conventional, albeit precise, commercial camera commonly used
in mapmaking.”) The dissent objected that the sophisticated and costly equipment utilized
permitted the government to discern objects on the ground that a human being in an aircraft
overhead could not otherwise observe. Id. at 243 & n.4 (Powell, J., dissenting).
56 Id. at 238.
57 488 U.S. 445 (1989).
dust, or threat of injury” or to reveal “intimate details connected with the use of the
home or curtilage.”58
The Supreme Court has not addressed whether the use of airborne surveillance
equipment other than those involving standard photography (recording visible light)
would implicate Fourth Amendment concerns. However, Kyllo v. United States59
strongly suggests such concerns would arise, at least if the surveillance targets a
private dwelling. In Kyllo, a federal agent used infrared thermal imaging equipment
to compare the heat emanating from a triplex unit to the heat signatures of other
nearby residences. Based in part on the equipment reading indicating that the
defendant’s home was warmer than the others, the agent obtained a search warrant.
Officers searched the home and seized marijuana plants growing inside. The
government argued that the Fourth Amendment had no application, because the
defendant had made no effort to conceal the heat escaping the walls of his home and
therefor had no reasonable expectation that passers-by would not take notice.
The Supreme Court disagreed, 5-4, holding that the use of sense-enhancing
technology not in general public use, in order to reveal details about the interior of
a private home that could not otherwise be ascertained without entering the home,
constitutes a search. The majority placed great emphasis on the fact that the
technique was aimed at a private dwelling, yet it is not clear from the decision
whether (or why) the use of such technology against a barn or private office should
yield a different result. The threshold for determining when surveillance equipment
can be said to have achieved usage common enough to upend the legitimacy of a
resident’s expectation of privacy was left unresolved. The dissent criticized the
usage criterion as “somewhat perverse [as a guarantor of Fourth Amendment
protection] because it seems likely that the threat to privacy will grow, rather than
recede, as the use of intrusive equipment becomes more readily available.”60 The
secrecy shrouding satellite surveillance capabilities may amplify the difference
between the average individual’s subjective expectation of privacy and the real extent
of their risk of observation by the government.
The use of surveillance techniques that are so narrowly focused that they can
only reveal unlawful activity or contraband may not constitute a search,61 at least
when it takes place outside of a home and is not aimed at a person. In United States
v. Place,62 the Supreme Court concluded that the use of a drug-sniffing dog to
indicate the presence of narcotics in closed luggage was not a search because it “does
not expose noncontraband items that otherwise would remain hidden from public
58 Id. at 452 (White, J., plurality opinion).
59 533 U.S. 27 (2001).
60 Id. at 47 (Stevens, J., dissenting).
61 See Simmons, supra note 47, at 1348-56 (positing a special category of “binary search”
that would not be a search for Fourth Amendment purposes because it could not reveal
innocent activity or non-contraband).
62 462 U.S. 696 (1983).
view....”63 Thus, satellite surveillance technology that would enable the government
to uncover the presence of unlawful activity or contraband, and nothing more, might
not constitute a search at all. Under Kyllo, however, technology that can reveal the
presence of phenomena (like heat) that may form part of a “signature” associated
with unlawful activity, but not the activity itself, would nevertheless constitute a
search, at least if the signature emanates from a private dwelling.64 It is also unclear
whether artificial means of limiting the information revealed by a sensor so that the
operator has no way of identifying non-contraband would, by itself, make the use of
such a sensor not a search.
Reasonable Warrantless Searches. If a particular type of satellite
surveillance is deemed to be a search within the meaning of the Fourth Amendment,
it is permissible only if its conduct is reasonable. The “reasonableness”of a search
is generally determined through a balancing test that weighs the degree to which the
search intrudes upon an individual’s legitimate expectation of privacy and the degree
to which it is necessary for the promotion of legitimate governmental interests.65
Oftentimes, the reasonableness factor may be determined by the adequacy of the
applicable warrant and whether the officer conducting the search complied with its
terms; however, warrants are not required in each instance. In particular, warrantless
searches may be reasonable if “exigent circumstances” would prevent the timely66
application for a warrant.
There is also a “special needs” exception for warrantless searches not based on
individualized suspicion, particularly when conducted for purposes other than67
ordinary law enforcement. For example, the government may conduct routine
63 Id at 707. The Court need not have resolved the issue, having found the evidence
inadmissible as the fruits of an unlawful seizure of the luggage, but the Court has followed
the results in other instances. See, e.g., United States v. Jacobsen, 466 U.S. 109, 123 (1984)
(chemical test that could reveal only the presence of cocaine in white powder validly in the
possession of police did not infringe the defendant’s legitimate expectation of privacy
because “the interest in ‘privately’ possessing cocaine [is] illegitimate”); City of
Indianapolis v. Edmond, 531 U.S. 32 (2000) (canine sniffs of exteriors of automobiles
stopped at random checkpoint set up to search for narcotics did not transform the temporary
seizures into searches, although the seizures themselves were improper).
64 Compare United States v. Knotts, 460 U.S. 276 (1983)(surveillance using beeper
technology to track location of container on public roads does not constitute a search) with
United States v. Karo, 468 U.S. 705 (1984)(use of tracking device to detect the presence of
contraband within a home constitutes a search).
65 Delaware v. Prouse, 440 U.S. 648, 654 (1979).
66 See, e.g., Warden v. Hayden, 387 U.S. 294, 298-99 (1957)(finding warrantless search of
a house justified where armed robbery suspect and weapons were believed to be inside
because a delay would endanger the lives of officers and citizens).
67 Klarfeld v. United States, 944 F.2d 583, 586 (9th Cir. 1991); see Chandler v. Miller, 520
U.S. 305, 314 (1997)(drug testing of public officials not justified by special need separate
from law enforcement); Veronia School District v. Acton, 515 U.S. 646 (1995)(random drug
testing of students participating in interscholastic athletics justified to deter drug use);
United States v. Ramsey, 431 U.S. 606, 616 (1977)(sustaining suspicionless searches of mail
inspections, without warrant or suspicion, of persons and things crossing a U.S.
border (or its functional equivalent), and remain within the reasonableness
requirement of the Fourth Amendment.68 Although the Fourth Amendment does not
state that its warrant requirement is limited to searches conducted in the context of
criminal investigations, what is “reasonable” under those circumstances may differ
from what may be deemed “reasonable” in circumstances where fewer liberty
interests are arguably at stake. Many courts have found an exception to the warrant
requirement for searches conducted primarily for foreign intelligence gathering
purposes.69 Evidence of criminal activity discovered during these types of
permissible warrantless searches may be used in criminal prosecutions. Warrantless
satellite surveillance that falls unambiguously into a special needs exception can be
conducted without a warrant subject to a test of its reasonableness, but may require
a showing of probable cause in some cases.
Statutory Authorities and Restrictions
Courts frequently look to the statutory basis for government conduct as part of
their inquiry into whether the investigation is a search to begin with or whether it was
conducted reasonably.70 Consequently, the following statutory authorities, as well
entering the country); Illinois v. Andreas, 463 U.S. 765 (1983)(upholding customs searches
of locked containers shipped from abroad).
68 United States v. Flores-Montano, 541 U.S. 149, 153 (2004)(“[S]earches made at the
border, pursuant to the longstanding right of the sovereign to protect itself by stopping and
examining persons and property crossing into this country, are reasonable simply by virtue
of the fact that they occur at the border.”)(quoting United States v. Ramsey, 431 U.S. 606,
69 The Supreme Court held in United States v. United States District Court, 407 U.S. 297
(1972) that domestic national security surveillance by wiretapping was subject to the
Warrant Clause of the Fourth Amendment, but expressly declared that its holding did not
apply to electronic surveillance of foreign powers or their agents. Id. at 308. Lower courts
have upheld warrantless electronic surveillance for foreign intelligence purposes. Seeth
United States v. Truong Dinh Hung, 629 F.2d 908, 912-13 (4 Cir. 1980), cert. denied, 454
U.S. 1144 (1982)(warrantless wiretap and bug of one suspected of collaborating with a
foreign power held reasonable so long as the surveillance was conducted primarily forrd
foreign intelligence reasons); United States v. Butenko, 494 F.2d 593 (3 Cir.), cert. denied
sub nom. Ivanov v. United States, 419 U.S. 881 (1974)(warrantless electronic surveillance
was lawful if its primary purpose was to gather foreign intelligence information). But see
Zweibon v. Mitchell, 516 F.2d 594, 613-14 (D.C. Cir. 1975), cert. denied, 425 U.S. 944
(1976) (opining in dicta that “absent exigent circumstances, all warrantless electronic
surveillance is unreasonable and therefore unconstitutional”). Subsequent to these cases,
Congress passed the Foreign Intelligence Surveillance Act (FISA), P.L. 95-511, Title I,
October 25, 1978, 92 Stat. 1796, codified as amended at 50 U.S.C. § 1801 et seq., to provide
a means for judicially authorized foreign intelligence surveillance in the United States.
70 See, e.g., Dow Chemical Co. v. United States, 476 U.S. 227, 233-34 (1986) (discussing
whether EPA had statutory search to conduct aerial surveillance of plant), Florida v. Riley,
533 U.S. 27 (2001)(plurality)(lawfulness of overflight for Fourth Amendment purposes
dependent on compliance with FAA regulations); see also Orin Kerr, The Fourth
as any statutes Congress may choose to enact with respect to domestic satellite
surveillance, may have a bearing on how courts treat the fruits of such surveillance.
The following provides an overview of relevant intelligence authorities, in particular
those affecting the Department of Defense.71
The National Security Act. The primary authority for the NRO lies in the
National Security Act of 1947, as amended, which provides that the DNI is
responsible for providing timely and objective national intelligence “based upon all72
sources available to the intelligence community and other appropriate entities.” The
Secretary of Defense has significant authorities and responsibilities related to the
collection of national intelligence, including the management of military intelligence
The National Security Act expressly provides for the use of intelligence to assist
law enforcement officials abroad:
[E]lements of the intelligence community may, upon the request of a United
States law enforcement agency, collect information outside the United States
about individuals who are not United States persons. Such elements may collect
such information notwithstanding that the law enforcement agency intends to use
the information collected for purposes of a law enforcement investigation or74
DOD intelligence agencies, including the NRO, are subject to certain limitations
when providing such assistance. 50 U.S.C. § 403-5a(b) provides that such assistance
“may not include the direct participation of a member of the Army, Navy, Air Force,
or Marine Corps in an arrest or similar activity” and may not be provided “if the
provision of such assistance will adversely affect the military preparedness of the
United States.” The Secretary of Defense is required to establish regulations
governing the provision of assistance to law enforcement agencies by DOD
The Posse Comitatus Act and Statutory Exceptions. The National
Security Act neither authorizes nor prohibits the use of intelligence for law
enforcement purposes within the United States, but other statutes apply. Military
Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102
MICH. L. REV. 801 (2004); Daniel J. Solove, Fourth Amendment Codification and Professor
Kerr’s Misguided Call for Judicial Deference, 74 FORDHAM L. REV. 747 (2005).
71 Authorities regarding communications intelligence are not included. The Administration
indicated the proposed domestic satellite surveillance program would not encompass FISA
surveillance or the so-called Terrorist Surveillance Program. See supra note 23.
72 50 U.S.C. § 403-1(a).
73 50 U.S.C. §§ 403-4a and 403(5); 10 U.S.C. § 441 (establishing National Geospatial-
74 50 U.S.C. 403-5a.
75 50 U.S.C. 403-5a(c).
personnel assigned to defense intelligence entities are subject to the Posse Comitatus
Act, which provides that
Whoever, except in cases and under circumstances expressly authorized by the
Constitution or Act of Congress, willfully uses any part of the Army or the Air
Force as a posse comitatus or otherwise to execute the laws shall be fined under76
this title or imprisoned not more than two years, or both.
Questions regarding which activities violate the Posse Comitatus Act arise most often
in the context of assistance to civilian police. At least in that context, the courts have
held that, absent a recognized exception, the act is violated (1) when civilian law
enforcement officials make “direct active use” of military investigators, (2) when the
use of the military “pervades the activities” of the civilian officials, or (3) when the
military is used so as to subject citizens to the exercise of military power that is77
“regulatory, prescriptive, or compulsory in nature.” The act does not apply to the
Navy or Marines78 and does not prohibit activities conducted for a military purpose
that incidentally benefit civilian law enforcement bodies.
Inside the United States (as well as abroad), DOD support for law enforcement
agencies is authorized in accordance with chapter 18 of title 10, U.S. Code. The
legislation contains both explicit grants of authority and restrictions on the use of that
authority for DOD assistance to law enforcement agencies — federal, state, and local79
— particularly in the form of information and equipment. Section 371 specifically
authorizes the Secretary of Defense to share information acquired during military
operations, and encourages the armed forces to plan their activities with an eye to the
production of incidental civilian benefits. Under sections 372 through 374, DOD
equipment and facilities, including intelligence collection assets, may be made
available to civilian authorities.
DOD personnel are permitted to provide training and expert advice to civilian
law enforcement personnel, and may conduct maintenance on equipment it provides.
However, DOD personnel are expressly authorized to operate the DOD-provided
equipment only in support of certain federal law enforcement operations, which
include counter-terrorism operations, renditions of suspected terrorists from a foreign
country to the United States to stand trial, and investigations involving violations of
certain laws that control imports, exports, immigration, drug trafficking, and80
terrorism. DOD personnel are authorized to operate equipment for the purpose of,
among other things, detection, monitoring, and communication of the movement of
76 18 U.S.C. § 1385.
77 According to DOD doctrine, “direct assistance” by military personnel includes searches
and seizures as well as the surveillance of individuals. DODD 5525.5 DoD Cooperation
with Civilian Law Enforcement Officials, Encl. 4 § E4.1.3, January 15, 1986.
78 Department of Defense regulations effectively place them under similar constraints, and
the limitations on assistance to civilian law enforcement authorities apply to them, 10 U.S.C.
79 10 U.S.C. §§ 371-382.
80 10 U.S.C. § 374.
air and sea traffic, as well as surface traffic outside of the geographic boundary of the
United States and within the United States not to exceed 25 miles of the boundary (if
the initial detection occurred outside of the boundary), and “aerial reconnaissance.”81
DOD equipment, facilities, and personnel may also be provided if necessary during
emergency situations involving chemical or biological weapons of mass destruction.82
Permitted forms of assistance in such an event include the operation of equipment to
“monitor, contain, disable, or dispose of the weapon involved or elements of the
The authority granted in sections 371-382 is subject to three general caveats.
It may not be used in any way that could undermine the military capability of the
United States84; the civilian beneficiaries of military aid must pay for the assistance;85
and the Secretary of Defense must issue regulations to ensure that the authority of
sections 371 to 382 does not “include or permit direct participation by a member of
the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other
similar activity unless participation in such activity by such member is otherwise
authorized by law.”86 For the emergency provision of assistance in cases involving
weapons of mass destruction, DOD and the Department of Justice (DOJ) regulations
prohibit DOD personnel (including civilians) from making arrests and from directly
participating in a search or seizure or the collection of intelligence for law
enforcement purposes, unless the action is “considered necessary for the immediate
protection of human life, and civilian law enforcement officials are not capable of
taking the action” or the action is otherwise authorized by law.87
It appears that DOD initially presumed that the statutory term “search” in 10
U.S.C. § 375 was intended to be “coextensive with the same term in the Fourth
Amendment,” so that military assistance would be prohibited in connection with any
law enforcement activities that constitute a “search” within the meaning of the Fourth
Amendment.88 However, DOJ’s Office of Legal Counsel disagreed, opining in 1991
that the use of military personnel to conduct aerial infrared monitoring of private
property for law enforcement purposes is “aerial reconnaissance”authorized by 10
U.S.C. § 374(b)(2)(B), and is neither inconsistent with 10 U.S.C. § 375 (assistance
may not involve military personnel in search, seizure or arrest) nor prohibited by the
81 10 U.S.C. §§ 374 and 382.
82 10 U.S.C. § 382.
83 10 U.S.C. § 382(c).
84 10 U.S.C. § 376.
85 10 U.S.C. § 377.
86 10 U.S.C. § 375.
87 10 U.S.C. § 382.
88 Military Use of Infrared Radars Technology to Assist Civilian Law Enforcement
Agencies, 15 U.S. Op. Off. Legal Counsel 36 (1991). DOD presented the question to the
Justice Department after receiving several requests for assistance from DEA to deploy
Forward Looking Infrared Radar (FLIR) to identify illicit narcotics production.
Posse Comitatus Act.89 To reach this conclusion, OLC relied on its interpretation of
the legislative history of § 375 to find that Congress did not mean the term “search”
to include all conduct that would constitute a search under the Fourth Amendment.
Rather, OLC found,
when Congress used the term “search” in section 375, it intended that the term
encompass at most only searches involving physical contact with civilians or
their property, and perhaps only searches involving physical contact that are
likely to result in a direct confrontation between military personnel and90
The legislative history suggested to OLC that Congress had intended to codify certain
court decisions interpreting the Posse Comitatus Act to have as its primary aim the
prevention of any “direct confrontation between military personnel and civilians.”91
It is evident from the legislative history of [10 U.S.C. §§ 371-375] that Congress
intended to codify the distinction — articulated by the district court in United92
States v. Red Feather — between “indirect passive” assistance and “direct
active” involvement in law enforcement activity.
Under this analysis, participation of military personnel in satellite surveillance would
not constitute a search or similar activity under 10 U.S.C. § 375 and thus would not
violate the Posse Comitatus Act. On the other hand, whether the activity is
authorized at all may depend on whether it constitutes “aerial reconnaissance” or
another activity authorized under 10 U.S.C. § 374 and whether it is conducted for one
of the permissible missions.
The question of the relevance of the Posse Comitatus Act and related statutes
is complex and entwined with legislation adopted long before the possibility of
satellite reconnaissance was contemplated. Congress has been willing in the past to
permit military personnel to provide assistance to law enforcement officers but has
90 Id. at 39-40. OLC found noteworthy that the original version of 10 U.S.C. § 375
prohibited military personnel from participating in “an interdiction of a vessel or aircraft,
a search and seizure, arrest, or other similar activity.” Id. at 41 (citing P.L. 97-86, tit. IX,
§ 905(a)(1), 95 Stat. 1099 1116 (1981)(emphasis added)). OLC reasoned that
The coupling of “search” and “seizure” through use of the conjunctive “and,” and the
reference to the two as a single event (i.e., “a search and seizure”), strongly suggests that
Congress was referring to searches of persons or objects that had been seized and thus
were in the custody of law enforcement officers. Searches of seized persons or objects
almost always involve physical contact.
Id. While OLC thought the later amendment of the statute to delete the “and” between
“search” and “seizure” was meant to clarify that it prohibited even searches that did not
result in a seizure, its conclusion that the kind of search to be prohibited encompassed only
those involving physical contact remained unaffected.
91 Id. at 42-46.
92 United States v. Red Feather, 392 F. Supp. 916 (D.S.D. 1975).
reaffirmed the continued importance maintaining the separate roles of civil law
enforcement authorities and the armed forces.93 Ultimately, the issue may depend on
a shared understanding by the executive and legislative branches of the
appropriateness of the use of satellite-derived information for domestic law
enforcement purposes and an agreement on the limitations placed on such uses.
Observers suggest that the provisions requiring an assessment of the issue in the 2007
Supplementary Appropriations Act can provide an opportunity to reach a suitable
Executive Branch Authorities
Proper adherence to government regulations (not inconsistent with valid statutes
or the Constitution) may also be a factor in determining whether an investigation was
a search and whether it was conducted reasonably.
Executive Order 12333. E.O. 1233394 augments statutory intelligence
authority for the Secretary of Defense as well as relevant offices and agencies within
the Department. The functions of the NRO are described in paragraph 1.12(c),
referring to “Offices for the collection of specialized intelligence through
reconnaissance programs,” and include “carrying out consolidated reconnaissance
programs for specialized intelligence.” Assistance to law enforcement agencies is
covered in paragraph 2.6 of E.O. 12333, which authorizes agencies within the
Intelligence Community to participate in law enforcement activities to investigate or
prevent clandestine intelligence activities, international terrorist activities, or
narcotics trafficking activities. The order also permits the intelligence elements to
provide specialized equipment, technical knowledge, or assistance of expert
personnel for use by any department or agency, or, when lives are endangered, to
support local law enforcement agencies.
E.O. 12333 requires agencies within the Intelligence Community to use “the
least intrusive collection techniques feasible within the United States or directed95
against United States persons abroad.” Monitoring devices may be used only “in
accordance with procedures established by the head of the agency concerned and
approved by the Attorney General. Such procedures shall protect constitutional and
other legal rights and limit use of such information to lawful governmental96
purposes.” The Attorney General is delegated the authority to approve the use,
within the United States or against a United States person abroad, of “any technique
for which a warrant would be required if undertaken for law enforcement purposes,
provided that such techniques shall not be undertaken unless the Attorney General
93 See 6 U.S.C. § 466 (expressing the sense of Congress reaffirming the continued
importance and applicability of the Posse Comitatus Act in light of domestic security
94 46 Fed. Reg. 59,941 (1981).
95 Id. para. 2.4.
has determined in each case that there is probable cause to believe that the technique
is directed against a foreign power or an agent of a foreign power.”97
DOD Directives. DOD Directives (DODD) establish or describe policy,
programs, and organizations; define missions; provide authority; and assign
responsibilities. The directive governing DOD Intelligence Activities states that
“[a]ll DoD intelligence and CI activities shall be carried out pursuant to the
authorities and restrictions of the U.S. Constitution, applicable law, [E.O. 12333, and
other DOD policies and procedures],” as well as “Presidential guidance concerning
the authorities and responsibilities of the Director of National Intelligence (DNI).”98
It further notes that “special emphasis shall be given to the protection of the
constitutional rights and privacy of U.S. persons.”99
DODD 5240.1-R governs the intentional collection of foreign intelligence
information about a U.S. person, permitting such collection only if the targeted
person is “reasonably believed to be an officer or employee, or otherwise acting for
or on behalf, of a foreign power; or is reasonably believed to be engaged or about to
engage, in international terrorist or international narcotics activities”; or “is
reasonably believed to be a prisoner of war; missing in action; or the target, the
hostage, or victim of international terrorist organizations.”100
In general, intelligence collection against U.S. persons requires a reasonable
belief that the targeted person poses a threat or has knowledge relevant to a valid
intelligence mission of the Department of Defense. Such collection must be carried
out using the least intrusive means, which generally means that information should
be collected from open sources or with the consent of the person concerned.101 If
such collection is not feasible or sufficient, the information is to be collected from
cooperating sources or through the use of other lawful investigative techniques, if
necessary obtaining a judicial warrant or the approval of the Attorney General.
However, unintentionally collected intelligence, or collection not targeting specific
persons, is not subject to these restrictions. The directive specifically permits the
collection of information from overhead reconnaissance that is not directed at102
specific U.S. persons.
The Administration has indicated that the NAO activities it envisions will
comply fully with E.O. 12333 and other relevant statutes and regulations.103 Further,
the NAO will “rely on existing, longstanding practice and procedures established by
the Intelligence Community to ensure the appropriate protection of privacy and civil
97 Id. para. 2.5.
98 DODD 5240.1: DOD Intelligence Activities § 4, August 27, 2007.
100 DODD 5240.1-R, Procedures Governing the Activities of DoD Intelligence Components
that Affect U.S. Persons, § C2.3.3 (December 1982).
101 Id § C2.4.
102 Id. § C2.3.12.
103 See DHS Fact Sheet, supra note 18.
liberties,”104 and will be subject to multiple layers of oversight. The above
regulations suggest the view that the purpose and focus of satellite intelligence
collection activity will play a major role in determining the extent of civil liberties
protections that will apply.
In reviewing plans for the NAO, Congress may focus on the following issues:
!How important will be the “value added” by satellite imagery to
homeland security and law enforcement?
!What effect would a more extensive use of satellite imagery for
domestic purposes have on national security missions?
!Will replacing the CAC which has been in the Geologic Survey of
the Interior Department with the NAO in DHS complicate the use of
satellite imagery for mapmaking and other civil purposes?
!How to ensure that the NAO operates in accordance with statutes
governing the role of intelligence agencies in supporting homeland
defense and law enforcement efforts, protecting civil liberties of
!Are adequate oversight mechanisms in place for appropriations
committees, intelligence committees, and homeland
security/governmental affairs committees?
!How will DHS and the ODNI budget for the NAO; what are funding
plans for FY2009 and for follow-on years?
Although mechanisms for using imagery and other data acquired by satellites
for some domestic needs have been in existence since the 1970s without controversy,
the possibility of using satellites to support law enforcement and homeland security
missions has raised serious concerns among Members of Congress and individuals
and groups concerned about the possibility of using intelligence resources as a
weapon against U.S. persons. The complexities of congressional oversight of
agencies with law enforcement and foreign intelligence missions along with widely
circulated reports that Congress was not notified of new satellite missions contributed
significantly to these concerns. The Administration delayed the establishment of the
NAO and provided an opportunity for further congressional consideration of the
issues involved but has taken steps to establish the NAO for some purposes even
before important legal issues have been resolved. The NAO’s future remains
uncertain and questions about proper use of IC products for homeland security and
domestic law enforcement have not yet been resolved.