TRADUCTION PLUS TARD
Congressional Research Service
7-5700
www.crs.gov
RL34421
Satellite Surveillance: Domestic Issues
Congressional Research Service
Summary
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
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 raised concerns that using satellites for law
enforcement purposes may infringe on the privacy and Fourth Amendment rights of U.S. persons.
Other commentators 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 a subsequent Continuing Appropriations Act (P.L. 110-329) approved in September
2008.
The Obama Administration conducted its assessment of the issue and terminated the NAO in June
2009, maintaining that there were better information sharing programs to meet the needs of state
and local homeland security partners. Little public information is available concerning current
policies for the use of satellite information for domestic purposes.
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 discussing 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.
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Contents
Background ................................................................................................................................1
Bush Administration Policies ......................................................................................................3
The Independent Study Group...............................................................................................4
National Applications Office (NAO) .....................................................................................7
Obama Administration Policies .................................................................................................10
Legal Considerations................................................................................................................. 11
Constitutional Rights...........................................................................................................12
Searches and Non-searches Distinguished .....................................................................12
Reasonable Warrantless Searches ..................................................................................16
Statutory Authorities and Restrictions..................................................................................17
The National Security Act .............................................................................................18
The Posse Comitatus Act and Statutory Exceptions .......................................................19
Executive Branch Authorities ..............................................................................................22
Executive Order 12333 .................................................................................................22
DOD Directives ............................................................................................................22
Conclusion................................................................................................................................23
Contacts
Author Contact Information ......................................................................................................24
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Background
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 collection agencies.
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 emergency preparedness.1
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, 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
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 uses.
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.
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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 independent agencies:
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
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
4
Department of the Interior, Fact Sheet, Civil Applications Committee, April 2001.
5
NIMA was renamed the National Geospatial-Intelligence Agency (NGA) in November 2003 pursuant to the FY2004
Defense Authorization Act (section 921, P.L. 108-136).
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 27, 1995.
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The use of intelligence resources for domestic purposes was described by then-Director of
Central 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 points:
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 and diagrams that show
the damage resulting from an earthquake, fire, flood, hurricane, oil spill, or volcanic
eruption.8
Bush Administration Policies
Although the precise capabilities of intelligence satellites are 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 (UAVs).
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
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
(continued...)
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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 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 at hand.
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, public materials.
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.
(...continued)
Intelligence (GEOINT) Basic Doctrine, Publication 1-0,” September 2006, pp. 7-8.
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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 satellitederived 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 sensitive sources.12
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
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
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, 2002, p. 21.
12 Independent Study Group Final Report, Civil Applications Committee (CAC) Blue Ribbon Study [hereafter cited as
ISG Report], September 2005, p. 40, available at http://www.fas.org/irp/eprint/cac-report.pdf.
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and objectives is a classic prescription for dysfunction, and has led the IC and LE [law
enforcement] communities to generally treat each other with extreme caution.13
The ISG noted the opportunities for the domestic applications of satellite reconnaissance, but
argued that not enough was being done to take advantage of them:
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 the defense of homeland.14
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 gather information on U.S. persons had led to the establishment of the CAC in the
1970s.16 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 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 Bush Administration maintained 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
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 discussed below.
17 ISG Report, p. 5.
18 ISG Report, p. 10.
19 National Applications Office, Charter, February 2008, p. 2.
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National Applications Office (NAO)
The Bush 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 time.
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 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 Appropriations Committee.
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.
20 Department of Homeland Security, “Fact Sheet: National Applications Office,” August 15, 2007 (hereinafter “DHS
Fact Sheet”).
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.
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
Advocates Fear Abuse of Satellite Images,” New York Times, August 17, 2007.
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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 encompassed by this array of arrays.24
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, civil liberties and
privacy are applied to the use of these remote sensing capabilities.25
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
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.
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.
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opportunity to review the plans and suggest changes to ensure that the Constitutional rights
of all Americans are protected.26
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 services, they do not apply to DOD agencies providing
information to civilian law enforcement agencies.28
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 In the interim, the CAC was to continue to respond to
domestic needs.
After several months of consideration, the Bush Administration was prepared to submit plans for
the NAO to Congress. In testimony concerning 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
protected.”30
The Charter of the NAO was to establish a framework for addressing requests for IC support to
domestic missions. The NAO was to “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 included 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 precluded 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 specified 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 satisfied.
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 Charles Doyle. 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.
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According to the Charter, the NAO was to 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.
The NAO Charter also stated 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 Parties.
It further stated that the Interior Department will provide, on a reimbursable basis, the initial
facility for the NAO at the USGS Advanced Systems Center in Reston, VA, and that the DNI will
provide National Intelligence Program (NIP) funding as appropriate.
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 to withhold authorization for NAO operations until DHS
submits and the Government Accountability Office (GAO) reviews an explanation of the legality
of NAO operations. Language to this effect was included in the Consolidated Security, Disaster
Assistance, and Continuing Appropriations Act, 2009 (P.L. 110-329, Section 518), approved on
September 30, 2008. On November 6, 2008, the GAO reported that despite having taken steps to
comply with privacy standards and identifying civil liberties concerns with NAO operation, DHS
“has not fully justified its certification that the NAO complies with applicable laws.”31
Obama Administration Policies
The Obama Administration, taking office in January 2009, undertook a review of the NAO. On
June 23, 2009, DHS Secretary Janet Napolitano announced her decision to end the NAO program
maintaining that other programs “better meet the needs of law enforcement, protect the civil
liberties and privacy of all Americans, and make our country more secure.”32 Details on current
arrangements for using information derived from intelligence satellites have not been made
public.33
31 U.S. Government Accountability Office, National Applications Office Certification Review, GAO-09-105R,
November 6, 2008, pp. 3-7 DHS did not accept all of the GAO’s conclusions and indicated that “the NAO is preparing
to commence operations in the civil application and homeland security communities.” Letter from James M. Chaparro,
Deputy Under Secretary for Mission Integration, Office of Intelligence and Analysis, Department of Homeland
Security, August 29, 2008, reproduced in ibid, pp. 71-72..
32 Department of Homeland Security, “Secretary Napolitano Announces Decision to End National Applications Office
Program,” June 23, 2009.
33 See CRS Report R40602, The Department of Homeland Security Intelligence Enterprise: Operational Overview and
Oversight Challenges for Congress, by Mark A. Randol. For additional background on the history of the NAO see
Jeffrey T. Richelson, “The Office That Never Was: the Failed Creation of the National Applications Office,”
International Journal of Intelligence and Counterintelligence, Vol. 24, No. 1 (2011). Richelson traces the origin of
civil uses of satellite data, the history of planning for the NAO, congressional reaction and legislative actions. He
suggests that “Perhaps more far-reaching and systematic public hearings . . . would have allowed issues to be fully
addressed and an agreement reached.” (P. 104)
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Legal Considerations
Members’ concerns about the constitutionality of the National Applications Office were 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 Office.”
Although some argued that the NAO Charter would have delayed use of the 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 would violate the
Posse Comitatus Act, post-Civil War legislation that restricts 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
communications34), as well as the current statutory framework regarding intelligence collection
and military involvement in law enforcement.
34 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
(continued...)
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Constitutional Rights
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 be seized.
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.35 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.36 A “seizure” occurs when there is meaningful governmental
interference in a property interest37 or intentional detention of a person.38 Searches and seizures
can involve intangible as well as tangible things.39
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 of the
targeted individual was held not to implicate the Fourth Amendment at all.40 The emphasis on the
trespass doctrine appeared to change in 1967 with the Supreme Court’s decision in Katz v. United
(...continued)
come into play.
35 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”).
36 See, e.g., United States v. Bond, 529 U.S. 334, 338 (2000).
37 Maryland v. Macon, 472 U.S. 463 (1985).
38 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).
39 Warden v. Hayden, 387 U.S. 294, 304 (1967); Wong Sun v. United States, 371 U.S. 471, 485-486 (1963).
40 Olmstead v. United States, 277 U.S. 438 (1928).
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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.41 The
amendment is now said to cover people rather than places,42 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 constitutionally protected.43
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 such observation.44 That a person has taken normal precautions to
maintain her privacy, that is, precautions customarily taken by those seeking to exclude others, is
also a factor in determining legitimacy of expectation.45
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 or near a private home.46 Consequently, persons continue
to have a greater expectation of privacy in the home than they have in public places.47 The
curtilage of a private home48 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
41 389 U.S. 347 (1967).
42 Id. at 353.
43 Id. at 351-52.
44 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”).
45 E.g., id. at 352; United States v. Chadwick, 433 U.S. 1, 11 (1977).
46 E.g. Harris v. United States, 390 U.S. 234 (1968).
47 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, 511 (1961)); Payton v. New York, 445 U.S. 573, 589-590 (1980).
48 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)).
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commit trespass to come within viewing range,49 unless perhaps particularly sophisticated
sensory enhancement technology is utilized.50
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.51 In California v. Ciraolo,
52
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.53
On the same day that Ciraolo was handed down, the Supreme Court issued its 5-4 opinion in
Dow Chemical Co. v. United States,
54 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 home55 or used less commonly available technology.56 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 proscribed absent a warrant.57
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
49 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. 50 See Dow Chemical Co. v. United States, 476 U.S. 227 (1986) (discussed infra).
51 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).
52 476 U.S. 207 (1986).
53 Id. at 213-14.
54 476 U.S. 227 (1986).
55 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.
56 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).
57 Id. at 238.
Sujet: Satellite Surveillance: Domestic Issues Richard A. Best Jr. Specialist in National Defense Jennifer K. Elsea Legislative Attorney January 13, 2011 
Mer 6 Oct 2021 - 17:03
