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50 U.S.C. § 1809—Elements of the Offense

Section 1809(a) of Title 50 provides that a person is guilty of an offense if he or she either: (a) intentionally (b) engages in electronic surveillance (c) under color of law, except as authorized by statute; or (a) intentionally (b) discloses or uses information (c) obtained under color of law (d) by electronic surveillance (e) knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute. Thus, Section 1809(a) reaches two distinct acts: (1) engaging in unauthorized electronic surveillance under color of law; and (2) using or disclosing information obtained under color of law through unauthorized electronic surveillance. Each offense involves an "intentional" state of mind and unauthorized "electronic surveillance." Even though none of these elements mentions foreign intelligence, one court has explained that "the FISA applies only to surveillance designed to gather information relevant to foreign intelligence." United States v. Koyomejian, 970 F.2d 536, 540 (9th Cir. 1992) (en banc), cert. denied, 506 U.S. 1005 (1992). In fact, all applications for an order from the Foreign Intelligence Surveillance Court require a certification from a presidentially designated official that the purpose of the surveillance is to obtain foreign intelligence. 50 U.S.C. § 1804(a)(7). [cited in USAM 9-60.400]