From: [log in to unmask] [mailto:[log in to unmask]]
Sent: 20 September 2002 17:39
To: [log in to unmask]
Subject: Policy Post 8.20: Civil Liberties Groups Oppose Wiretap Law
Power Grab
CDT POLICY POST Volume 8, Number 20, September 20, 2002
A BRIEFING ON PUBLIC POLICY ISSUES AFFECTING CIVIL LIBERTIES ONLINE
from
THE CENTER FOR DEMOCRACY AND TECHNOLOGY
CONTENTS:
(1) CDT & Other Advocates Oppose DOJ Reach For Broader Surveillance Power
(2) Congress Considers Further Weakening Surveillance Standards
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(1) CDT & OTHER ADVOCATES OPPOSE DOJ REACH FOR BROADER SURVEILLANCE POWER
In a groundbreaking court case, CDT, the American Civil Liberties Union
and other leading civil liberties groups have urged a special panel of
federal appeals judges to reject a Department of Justice (DOJ) claim for
broader surveillance authority in the name of fighting terrorism. The
groups filed a "friend of the court" brief in a case in which the
government is seeking judicial permission to conduct criminal
investigations of terrorism suspects under the weaker rules reserved
for foreign intelligence gathering. Under the DOJ theory, prosecutors
could thus avoid stricter rules that the Constitution's Fourth Amendment
applies to law enforcement investigations.
The case arises out of a May 17 ruling in which a special federal court
held that criminal prosecutors could not invoke the 1978 Foreign
Intelligence Surveillance Act (FISA) to initiate, direct or control
wiretaps, e-mail intercepts or physical searches. The DOJ appealed,
arguing that the Patriot Act adopted in the wake of the September 11,
2001 terror attacks permitted use of the lower standards.
The public interest brief calls the DOJ theory an end-run around the
Constitution. CDT and its allies point out that the two word amendment
relied on by the Justice Department - stating that "a significant"
purpose of FISA surveillance had to be foreign intelligence gathering,
instead of the earlier requirement that it be "the" purpose - did not
alter the structure of the federal surveillance laws, which govern
criminal investigations in national security cases under the stricter
rules applicable to all criminal matters. Applying FISA's weaker
standards and broader surveillance rules to criminal prosecutions
would be unconstitutional, the brief argues.
The case involves a number of firsts. It is the first time that the
secret Foreign Intelligence Surveillance Court has issued publicly an
opinion endorsed by all the court's judges (and only the second time
ever that any opinion of the court has become public). It involves the
first time that the government has ever appealed a ruling of the court
and therefore the first time that the Foreign Intelligence Court of
Review has convened. It is also the first time that public interest
groups have had the chance to weigh in on a government surveillance
request.
The appeals court held a secret hearing on the government appeal on
September 9, following which it asked the DOJ to submit a second brief,
which is due September 24.
The civil liberties brief, filed on September 20 by CDT, the ACLU, the
Center for National Security Studies, the Electronic Frontier Foundation,
the Electronic Privacy Information Center, and the Open Society Institute
is available in PDF at
http://www.cdt.org/security/usapatriot/020919fiscrbrief.pdf
Further background:
The FISA Court's May 2002 Memorandum Opinion and Order:
http://www.fas.org/irp/agency/doj/fisa/fisc051702.html
The Justice Department's August 21 appeal brief ("redacted"):
http://www.fas.org/irp/agency/doj/fisa/082102appeal.html
On September 10, 2001, the Senate Judiciary Committee held a remarkable
hearing entitled "The USA PATRIOT Act in Practice: Shedding Light on the
FISA Process." Statements of Senators and witnesses are online at
http://judiciary.senate.gov/hearing.cfm?id=398
------------------------------------------------------------------------
(2) CONGRESS CONSIDERS FURTHER WEAKENING SURVEILLANCE STANDARDS
The breadth of the Justice Department's argument in the "purpose" case
seems may not have deterred Congress from considering further changes
to FISA. Earlier this summer, several bills were introduced that would
have further weakened the Act's standards.
S. 2659, sponsored by Sen. Michael DeWine, would lower the standard for
obtaining FISA orders for electronic surveillance orders and physical
searches from "probable cause" to "reasonable suspicion," where the
target was not a US citizen or permanent resident alien. S. 2586,
sponsored by Senators Charles Schumer and Jon Kyl, would define certain
individuals as "foreign powers" under FISA.
On Wednesday, July 31, CDT Executive Director Jerry Berman testified
before the Senate Select Committee on Intelligence, strongly opposing
both bills. Among the main points from CDT's testimony:
* A primary lesson from September 11 is that the government is
incapable of analyzing the vast amount of information it already
collects. Lowering FISA's requirements would only make that problem
worse.
* S. 2586 stands FISA on its head by designating individuals themselves.
* S. 2659 would allow FISA warrants to issue without probable cause,
but the Constitution expressly requires a probable cause finding for
all searches.
CDT's testimony is available at
http://www.cdt.org/testimony/020731berman.shtml
Other testimony is at
http://intelligence.senate.gov/0207hrg/020731/witness.htm
------------------------------------------------------------------------
Detailed information about online civil liberties issues may be found
at http://www.cdt.org/.
This document may be redistributed freely in full or linked to
http://www.cdt.org/publications/pp_8.20.shtml.
Excerpts may be re-posted with prior permission of [log in to unmask]
Policy Post 8.20 Copyright 2002 Center for Democracy and Technology
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