FISA Court Case Study

The terrorist attacks of September 11, 2001 devastated the United States people. As they mourned over the deaths caused by the destruction of the World Trade Center in New York City, Americans began looking for a way to prevent anything like this from happening again. Consequently, an act known as the USA PATRIOT act was passed by Congress. This act opened up many doors previously closed to law enforcement and intelligence agencies. With these new opportunities available to them, they have the capability to obtain information about specific individuals believed to be involved in terrorist activities and organizations. Very beneficial to the United States, the Patriot Act provides easier access for different government law enforcement agencies to share information, allows government agencies investigative tools that non-terrorist crimes already use, and helps to dismantle the terrorist financial network. Although many people claim that the Patriot Act violates the United States Constitution and the freedoms of the American people, it contains many elaborate safeguards to fight against such abuse.

Another pro of FISA, and the applicable amendments that followed, is the ability for electronic surveillance to be conducted without a court order for a designated length of time to better facilitate collection and streamline the process under USC. 1802, Sec 102. There are, of course, steps required by high ranking officials, the President and Attorney General, which must be taken to conduct such surveillance without a court order. Also, the criteria to conduct the surveillance is restricted specifically to communications exclusively between foreign powers and must not include “substantial likelihood” that the surveillance will acquire communications pertaining to a United States Person. [4] While the appropriate legal process should always be followed, this provision is necessary at times to bypass the lengthy legal process for obtaining a court order when time restrictions apply.

Since the passing of FISA came after a widespread finding of warrantless wiretapping by a number of different government entities, Congress along with the Carter administration, needed to carefully craft a bill that not only reconciled national security needs to conduct domestic surveillance, but also continued to protect individual liberties such as that of the first and fourth amendments. The once top-secret Carter administration memos regarding FISA offer a first-hand glimpse at the thinking that went into

Background- Four men were arrested in April 2011 in connection to series of armed robberies-- to which-- one confessed and gave the FBI his and other’s phone number. It was used it to request orders from judges to obtain “transactional records” for each phone number per the Stored Communications Act. Records like date/time/locations of calls were taken through their connections to cell towers. It all incriminated Timothy Carpenter (Petitioner) of robbery (interstate commerce), who appealed his 4th Amendment rights, arguing the FBI must obtain a warrant on probable cause. District Court and Sixth Circuit both denied Petitioner’s motion to appeal.

The United States government’s interpretation of the Fourth Amendment has caused them to believe they are justified in amassing a collection of American phone records, which creates a breach in many American citizens’ privacy. According to the FISA Amendment Act, the government has the authority to “target foreigners abroad” (ACLU) and the phone records of any communications between Americans and those foreign targets can be collected. However, this act does not allow amassing

It has been discovered that the major cellular provider Verizon, has made a contract with the NSA stating that at the end of each day the company Verizon must give all cellular records collected that day to the NSA. This transaction however is not expressed to the customers of Verizon. This is a breach in trust between the customers of Version and the company itself.

The Patriot Act is lengthy and encompasses many issues but its primary purpose was to protect the American Public. I will focus this paper to how the surveillance aspect affects the First Amendment, the Fourth Amendment, and collection of Metadata.

However, critics challenged the constitutionality of FISA and the abuse of the government power under the First, Fourth and Fith amendments of the United States Constitution. The problem led to the erection of “the wall” that inhibited the information sharing between the intelligence and law enforcement communities. The expansion of FISA after the enactment of USA PATRIOT Act significantly broadened the authority of the Executive Branch for the electronic surveillance and removed the wall, allowing the flow of information among Intelligence Community in the fight against terrorism. However, the removal of the wall led to the tension between national security and civil liberties. The FISC review has clarified the requirements for the use of intelligence under FISA to limit abuse of the Executive power. However, much is still needed to be done to properly balance the national security concerns and privacy rights. Consequently, the role of the Congress as an oversight machine is strongly required to limit instances under which the Government may conduct unlawful electronic

As if it were not enough with all of these new security acts and suppositions that the government needed to do more to keep us safe. In late December 2010, the New York Times article revealed that President Obama and also his predecessor George W. Bush, had secretly authorized and approved the National Security Agency (NSA) having access to wiretap domestic phone calls and emails without obtaining legally required warrants. Through the 1978 Foreign Intelligence Surveillance Act (FISA) administrative institutions were permitted to wiretap on an emergency basis and apply for warrants without the necessary legal authorization, the administration thought that FISA was too monotonous and cumbersome pertaining to urgent issues of national security.

Access to records in international investigations are now more attainable due to the Patriot Act. Under the Section 215 the FBI is allowed to seize books, records, papers, documents, and other items that are necessary for an investigation

Other provisions included giving the Federal Bureau of Investigation (FBI) and the Central Intelligence Agency (CIA) the ability to share information, access wiretaps referred to “roving wiretaps” that would cover all of technology a suspect may own, access to records including banking, books, or any “any other items sought in connection with a terror investigation,” lowers the requirements to obtain a “wiretap or search order”, allows delayed notice to those whose home or office has been searched under the “sneak and peek” warrants and has “outlawed material support” to organizations considered terrorist groups (Abramson & Godoy, 2006, pp. 2-4).

Disturbingly the National Security Agency (NSA) has been collecting metadata on Americans personal telephones and electronics devices for several years. This collection was happening before the NSA Analyst Edward Snowden leaked these facts to the world in late 2013. The NSA was formed in the 1950’s, and during this time frame the NSA disseminated intelligence information from electronic signals for foreign and counter intelligence purposes, which supported the American military needs. Currently the NSA has refocused their spying tactics to technology driven devices. The NSA has an extensive “telephone-metadata program, since 2001, and they collect phone records of virtually all Americans” (Lizza, 2013).

Physical Searches in Subchapter II of the Foreign Intelligence Surveillance Act, establishes procedures for the physical search of "premises or property … owned, used, possessed by, or ... in transit to or from a foreign power or an agent of a foreign power." The procedures are substantially similar to the procedures established for electronic foreign intelligence surveillance. Subchapter III of the Foreign Intelligence Surveillance Act expresses that pen registers and trap and trace devices for foreign intelligence purposes creates methods for the utilization of pen registers and trap and trace devices for managing telephone or e-mail surveillance. Access to Certain Business Records for Foreign Intelligence Purposes, Subchapter IV of Foreign Intelligence Surveillance Act, sets up methods for acquiring a Foreign Intelligence Surveillance Court request for third-party manufacturing of business records to obtain foreign intelligence data. The legislative history behind the Foreign Intelligence Surveillance Act as of 2008 is as

1. Since the release of NSA’s classified documents by the NSA ex-contractor Edward Snowden, the controversy of morality and legitimacy of FISA (Foreign Intelligence Surveillance Act), and, in particular, section 702, has become a major issue of public debate in the context of national security and privacy rights. To understand the underlying controversy, it is important to understand what powers section 702 gives to the US intelligence agencies. Section 702 of the Federal Intelligence and Surveillance Act (FISA) is the section that elaborates on the procedures and regulations for surveillance of non-United States persons while they are located outside the US. It defines US people as either citizens or permanent residence card (commonly known as green card) holders. Because determination of the person’s location can be hard (due to ambiguous borders in territorial agreements and ways to hide malefactors’ location), the law requires the targets to be only reasonably believed to be located overseas. Section 702 is flexible in terms of obtaining legal

the NSA expansive power to spy on Americans’ international email and telephone calls. But in