http://w2.eff.org/Censorship/Terrorism_militias/fisa_faq.htmlWhy is there a special legal regime for "foreign intelligence" surveillance?
The path to FISA has two branches, political and judicial.
The government had long maintained that it had extensive discretion to conduct wiretapping or physical searches in order to protect national security. In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court acknowledged that the President had claimed special authority for warrantless surveillance in national security investigations, and explicitly declined to extend its holding to cases "involving the national security." Id. at 358 n. 23. Similarly, Congress in Title III stated that "nothing in Title III shall . . . be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government."
On the political front, such executive branch activities, charitably described as "some degree of domestic overreaching of intelligence into domestic areas," had long been tolerated. Staff of House Permanent Select Comm. on Intelligence, 104th Cong., Staff Study, IC21: Intelligence Community in the 21st Century at 272 (comm. print 1996).
But in the 1970s the political winds changed. The 1975-76 Church Committee hearings documented extraordinary federal government abuse of surveillance powers. Examples included the the NSA's Operation Shamrock and Operation Minaret, CIA's Operation CHAOS, the FBI's COINTELPRO domestic harassment of dissenters and anti-war protesters that included illegal wiretapping, and the illegal burglaries of the Nixon White House "plumbers."The Church Committee Report found that covert action had been excessive, had circumvented the democratic process, and had violated the Constitution. It concluded that Congress needed to prescribe rules for intelligence activities.
On the judicial front, the Supreme Court first confronted the tension between unmonitored executive branch surveillance and civil liberties in United States v. U.S. District Court, 407 U.S. 297 (1972), in which the United States charged defendants with conspiracy to destroy government property. Defendants sought electronic surveillance information, held by the prosecution, that the CIA obtained during a potentially illegal wiretap, wanting to ascertain whether the government had relied on information in the indictment or the case for conviction and to suppress any tainted evidence at trial. The Attorney General admitted that a warrantless wiretap had intercepted conversations involving the defendants.
Before the Supreme Court, the government defended its actions on the basis of the Constitution and the Title III national security disclaimer. The Court rejected the statutory argument, saying that "Congress . . . simply did not legislate with respect to national security surveillances." As for the constitutional argument, the Court accepted that the President had the power "to protect our Government against those who would subvert or overthrow it by unlawful means" and that this power justified electronic surveillance of would-be subversives.
Invoking the "broader spirit" of the Fourth Amendment and "the convergence of First and Fourth Amendment values" in national security wiretapping cases, however, the Court was especially wary of possible abuses of the national security power. The Court then balanced "the duty of Government to protect the domestic security, and the potential danger posed by unreasonable surveillance to individual privacy and free expression," and found that waiving the Fourth Amendment probable cause requirement could lead the executive to "yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech." Justice Powell wrote that the inconvenience to the government is "justified in a free society to protect constitutional values."The Court emphasized that this case involved only the domestic aspects of national security: "We . . . express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents." It invited Congress to act: "Given these potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens."
These two paths, political and judicial, converged in the enactment of FISA. ----------
Why is FISA dangerous?
Most important, FISA powers are broad and vague, and the secrecy of FISA proceedings makes FISA powers susceptible to abuse.FISA power extends well beyond spies and terrorists. It can be used in connection with ordinary criminal investigations involving United States citizens who live in this country and who may be charged with offenses such as narcotics violations or breaches of an employer's confidentiality. 50 U.S.C. §§ 1806, 1825.
For instance, electronic surveillance under § 1801(f)(1) only reaches wire or radio communications "sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person" and a warrant would ordinarily be required. If the U.S. person is not "known," or more important, not "intentionally" targeted, it simply isn't "electronic surveillance" under § 1801(f)(1).
Note also that FISA expressly contemplates that it will produce "unintentionally acquired information." § 1806(i). But while this section requires the destruction of such information, it only applies to "the contents of any radio communication," only if a warrant would have been required, and only if both the sender and intended recipients are within the United States.
Given these limits, one may presume that "unintentionally acquired information" outside these lines is not destroyed. That would include all "unintentionally acquired"wire or electronic communications.
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