Many Americans would be surprised to know that there is a secret federal court that authorizes the FBI to spy on the phone and Internet communications of alleged spies and suspected terrorists. They would be even more surprised to know that because of the USA PATRIOT Act, the lower legal standards of this secret court can now be applied against them in the context of regular criminal investigations.
The Foreign Intelligence Surveillance Act (FISA) of 1978 established the FISA court and gave it the power to issue secret spying orders under standards much lower than the "probable cause" standard used in the criminal justice system. But there was a key limit to this power: the Act required that "the purpose" of FISA-authorized surveillance would be to gather foreign intelligence. This was to ensure that investigators in ordinary criminal investigations could not abuse the lower legal standards of FISA surveillance, doing an end-run around criminal suspects' Fourth Amendment rights.
Section 218 of PATRIOT changed all of that. Now, intelligence gathering need only be "a significant purpose" of FISA-authorized surveillance. This means that PATRIOT essentially handed to criminal investigators secret spying authority previously reserved only for federal intelligence agents. As a result, ordinary law enforcement now has extraordinary power – power originally justified on the basis of the President's special authority to deal with foreign intelligence threats.
What does this extraordinary power entail? FISA surveillance is significantly more powerful, and more shrouded in secrecy, than surveillance in regular criminal investigations. The targets of FISA surveillance are never notified that they were spied on. The FISA court does not publish its decisions and procedures, as other federal courts do – meaning that there is no way to know how the court interprets the legal standards it applies. There is no clear way to challenge FISA-authorized surveillance – the court doesn’t even have a public address. To top it all off, the FISA court hears arguments only from one party - the FBI's lawyers, the Department of Justice. Perhaps that's why you can count on one hand the number of times the court has said no to an FBI surveillance request in over 20 years.
And the bad news only gets worse: federal agents are using these unprecedented powers at increasing rates. Based on the latest government reports, it appears that there is now more surveillance being secretly authorized by the FISA court than by all the other federal courts combined.
It's time to put the brakes on FISA before it completely replaces the traditional law enforcement surveillance regime as limited by the Fourth Amendment. Section 218 is scheduled to expire, or "sunset," at the end of 2005, but new legislation has been introduced to make the provision permanent. EFF strongly opposes its renewal, and we urge you to do the same. Visit the EFF Action Center today to stand up against this unjustified corrosion of your most fundamental rights as a U.S. citizen.
