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Surveillance court rules US could compel telecom to assist wiretapping

By Bernard Hibbitts (editor) and University of Pittsburgh School of Law students.

[JURIST] The US federal government acted within the Constitution when it compelled a telecommunications company to assist in warrantless surveillance of certain customers, the Foreign Intelligence Surveillance Court of Review (FISC) said in a ruling released Thursday. The redacted decision, dated August 22, 2008, was a response to the unnamed firm's challenge to government demands made under the since-expired Protect America Act (PAA). The court asserted a national security exception to the Fourth Amendment warrant requirement for surveillance "directed at a foreign power or an agent of a foreign power reasonably believed to be located outside the United States." The court also rejected an argument that the government failed to comply with the Fourth Amendment's reasonableness requirement, finding sufficient safeguards in the Attorney General's finding of probable cause and a 90-day limit on surveillance. The court stressed that it was ruling on the particulars of the case:e caution that our decision does not constitute an endorsement of broad-based, indiscriminate executive power. Rather, our decision recognizes that where the government has instituted several layers of serviceable safeguards to protect individual against unwarranted harms and to minimize incidental intrusions, its efforts to protect national security should not be frustrated by the courts. This is such a case.The Department of Justice (DOJ) is pleased with the decision. The American Civil Liberties Union (ACLU) argued that the government should not be allowed to nullify Fourth Amendment rights merely by invoking national security, but was encouraged by the court's recognition of the importance of probable cause in such surveillance. In November, Judge Henry Kennedy of the US District Court for the District of Columbia ordered the DOJ to release legal memoranda relating to the National Security Agency (NSA) warrantless domestic surveillance program. In September, telecommunications executives told the US Senate Commerce Committee that their companies would refrain from using certain surveillance technology without users' permission. In July, The Senate voted to approve a bill amending the Foreign Intelligence Surveillance Act (FISA) to grant retroactive immunity to telecommunications companies participating in the NSA warrantless surveillance program.

Full post as published by JURIST - The Paper Chase on January 16, 2009 (boomark / email).