Thursday, September 26, 2002

Foreign Intelligence Surveillance Court

You may or may not have been following the controversy regarding America's top secret court, the Foreign Intelligence Surveillance Court (FISC). The Court is used by the government to get permission for wire taps and other surveillance measures when foreign intelligence issues arise. If you haven't heard of it, that's not surprising. They've only released one opinion that wasn't classified. And that document was disclosed to the public by the House Judiciary Committee last month during an inquiry into efforts by the Department of Justice and the FBI to combat terrorism, while still protecting the rights of citizens.

The government has appealed that decision of the Court, and a court that had never met before was called into action to review the decision of the FISC. The Foreign Intelligence Surveillance Court of Review will make a ruling based upon that appeal. The Electronic Privacy Information Center (EPIC) has joined with the Center for National Security Studies (CNSS), and the Electronic Frontier Foundation (EFF) to file an amicus brief (pdf) with the Review Court, to convince them to affirm the decision that the FISC made. From the brief:
In the court below, the government sought a judicial ruling that FISA can be used where the primary or even exclusive purpose of surveillance is to gather evidence of criminal conduct. Appropriately, the Foreign Intelligence Surveillance Court (“FISC”) rejected the government’s attempt to invoke FISA for electronic surveillance that for over thirty years has been governed by an entirely different statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“Title III”), 18 U.S.C. § 2510 et seq., which applies to wiretaps in criminal investigations. As the FISC noted, the government’s construction of FISA would allow an end-run around ordinary Fourth Amendment requirements. Neither the text of FISA as amended by the USA PATRIOT Act (“Patriot Act”), Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001), nor twenty years of judicial interpretation supports this result. While FISA now allows coordination, consultation and information sharing between intelligence and law enforcement officials, it does not authorize surveillance whose primary or exclusive purpose is law enforcement. Indeed, expanding the scope of secret surveillance under FISA would violate the Fourth Amendment and the Due Process guarantees of the Fifth Amendment, and would jeopardize the First Amendment right to engage in lawful public dissent.
If the Department of Justice needs surveillance for a law enforcement investigation, they can turn to courts other than the FISC with requests for warrants authorizing the use of such equipment. The standard a judge reviews such a request under would be one of probable cause. The FISC requires a lesser standard -- a less rigorous burden to meet than probable cause.

How will the Review Court rule? Hopefully, they will support the decision of the FISC. Regardless of how they decide, chances are good that an appeal to the US Supreme Court will follow.