| With regard to the Fourth Amendment of the US Constitution, the general rule under FISA requires that there must be probable cause to believe that the target of the surveillance is a foreign power or the agent of a foreign power, not that the target is engaged in any kind of criminal activity. The rule for surveilling a US citizen is that there must be probable cause to believe that the person is engaging in espionage or similar crime. [4]
Additionally, the gathering of "foreign intelligence information" must be the "primary purpose" for the surveillance.
For more general information about FISA, see the Electronic Frontier Foundation's FISA FAQ. [5] More detailed information, as well as recent court decisions, are found in this report prepared for Congress. [6]
Significant Amendments
Constitutional concerns about FISA have existed since it was first enacted. Those concerns have grown over the years as the Act has been broadened, and its standards for surveillance have been lowered. [7]
1994/1995 - Covert physical entries related to security investigations, as well as electronic surveillance is permitted.
1998 - Pen register and trap and trace orders are permitted.
2000 - The definition of an'agent of a foreign power' is broadened.[8]
2001 - The US PATRIOT Act [9] extended the emergency surveillance period from 24 hours to 72 hours. It also lowered the standard for when surveillance is allowed. The 1978 Act required that the gathering of foreign intelligence information must be the 'primary purpose'. The standard under the Patriot Act only requires only that it be a 'significant' purpose, and significant is not defined. Pen register and trap and trace information can be gathered even if the user of such a device (phone, cell phone, etc.) is not a foreign agent or engaged in any kind of terrorism or espionage activities. [10]
2007 - The Protect America Act of 2007 [11] allows the president to wiretap any communication without a warrant. The target has to be reasonably believed to be outside of the United States.
Amendments to FISA as of July 6, 2008
The bill currently on the table would give immunity to the telecommunications companies that aided the Bush administration with its warrantless wiretapping program from the 40 or so lawsuits levied against them.
It would also do the following: [12]
- Require FISA court permission to wiretap Americans who are overseas.
- Prohibit targeting a foreigner to secretly eavesdrop on an American's calls or e-mails without court approval.
- Allow the FISA court 30 days to review existing but expiring surveillance orders before renewing them.
- Allow eavesdropping in emergencies without court approval, provided the government files required papers within a week.
- Prohibit the government from invoking war powers or other authorities to supersede surveillance rules in the future.
The Balkinization blog provides much insight and analysis with regard to these provisions.[13]
Statistics on Usage
The Electronic Privacy Information Center (EPIC) has compiled statistics showing the number of FISA applications presented to the FISA Court, the number approved, and the number rejected. [14] All through the 1990s the number of applications never reached more than 900 per year (in 1999 total applications were 880). Also during this time, no application was ever rejected. A big jump occurred in 2003, when1727 applications were presented. Of those, only 4 were rejected. 2005 saw another leap; 2072 applications were presented and none were rejected. For the last year, 2007, there were 2371 applications presented and only 4 were rejected.
Notes
1. http://www4.law.cornell.edu/us...
2. http://www.dkosopedia.com/wiki...
3. http://www.dkosopedia.com/wiki...
4. http://epic.org/privacy/terror...
5. http://w2.eff.org/Censorship/T...
6. http://209.85.173.104/search?q...
7. http://www.cnss.org/fisa.htm
8. http://frwebgate.access.gpo.go...
9. http://thomas.loc.gov/cgi-bin/...
10. http://epic.org/privacy/terror...
11. http://thomas.loc.gov/cgi-bin/...
12. http://en.wikipedia.org/wiki/F...
13. http://balkin.blogspot.com/200... , http://balkin.blogspot.com/200... , http://balkin.blogspot.com/200...
14. http://epic.org/privacy/wireta... |
