The Privacy Act generally forbids the maintenance by an agency
of any record "describing how any individual exercises rights
guaranteed by the First Amendment unless expressly authorized by
statute or… unless pertinent to and within the scope of an authorized
law enforcement activity. '42 "Individual" for this purpose means a
United States citizen or an alien "lawfully admitted for permanent
residence."43 Similar provisions in FISA bar electronic surveillance
or physical searches of a United States person "solely upon the basis
of activities protected by the first amendment."' It might be argued,
however, that military intelligence services could legally listen in on
a private conversation about the National Rifle Association or the
environmental group Greenpeace on grounds that the collection was
not "solely" based on the exercise of First Amendment rights.
The Privacy Act also bars the maintenance of personal
information by an agency unless it is "relevant and necessary to
accomplish a purpose of the agency required to be accomplished by
statute or by executive order of the President."45 Military intelligence
agencies are plainly charged by Executive Order No. 12,333 with
collection of information concerning foreign intelligence and
counterintelligence,' and they are impliedly authorized by FISA to do
the same. FISA does require agencies to follow procedures to
"minimize the acquisition and retention, and prohibit the
dissemination" of nonpublic information about United States
persons,47 except that evidence of a crime may be disseminated for
law enforcement purposes.48
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