Legal News

Will Prosecutors Use New FISA as End-Run Around Fourth Amendment?

By Dan Slater

It’s been five months since we last posted on the highly-politicized Senate spat over wiretapping. Back in February, a 68-29 Senate vote reauthorized a law giving government greater powers to eavesdrop in terrorism cases and approving immunity for telecoms that cooperate in domestic spying. Democrats were accused of lying down, as detractors of the bill argued that sophisticated telecoms like Verizon and AT&T are perfectly capable of complying with the Foreign Intelligence Surveillance Act, or FISA, themselves, and don’t need explicit assurances (i.e., guarantees of retroactive immunity) from the government that they won’t be prosecuted for handing over info.

Tomorrow, reports the WSJ’s Evan Perez, Congress is expected to approve the new bill — “the most sweeping change in the 30-year-old law and one that may further expand the use of evidence gathered by intelligence agencies in criminal cases.”

Whereas much of the FISA discussion has centered on the portion of the bill that provides for telecom immunity, Perez highlights how changes to the law let the government seek more sweeping surveillance orders.

Some critics, writes Perez, say an expanded FISA, whose rules are more permissive than those that control domestic wiretaps, gives prosecutors an unfair advantage. FISA surveillance warrants, which are handled in secret by an intelligence court, are different from wiretaps issued under so-called Title 3 orders. For example, targets of Title 3 wiretaps eventually are notified that they were under surveillance, and defense attorneys can seek more information underlying the cause for the wiretap. But some suspect prosecutors are using FISA to get information they otherwise would have problems getting because of Fourth Amendment search-and- seizure protections.

But Matthew G. Olsen, deputy assistant AG and chief of the DOJ’s Office of Intelligence, says, “The vast majority of activities authorized under FISA are used only for intelligence purposes and not for criminal cases.”

Full post as published by Law Blog - WSJ.com on July 08, 2008 (boomark / email).