Secret FISA Court Approves Specific Application of Expired Law For Warrantless Wiretapping

The FISA Court of Review (FISCR) today released a public version of an opinion concerning warrantless wiretapping. An unnamed telecommunications carrier stood up for its customers' privacy by fighting the case through an initial decision by a FISA court and the appeal to the FISCR. The Court approved the specific application of the expired Protect America Act (PAA) and expressly rejected arguments that the law was unconstitutionally applied in the case before it.

What does that mean for cases in the public, nonsecret courts challenging dragnet surveillance? Legally: nothing.

First, the FISCR court decisions are not binding on the public courts. Second, the FISCR was applying the expired PAA, which was only in effect for a few months in 2007 and early 2008, so it didn't address warrantless surveillance conducted before or afterwards. The FISCR did not address the current FISA Amendments Act, which was passed in the summer of 2008. Finally, the FISCR was analyzing a specific application of the PAA and expressly stated that it was not passing on the application of the PAA overall or in any other specific situation. So any assertion that this decision decided the legality of warrantless wiretapping once and for all would be wrong.

But it's still bad news for people who want to stop the illegal spying. The FISCR blessed the elimination one of the core protections of the 4th Amendment, court review prior to conducting the specific surveillance. It allowed this bedrock protection to be replaced with secret "procedures and processes" under the control of the Executive Branch alone. The FISCR also dismissed the carrier's arguments about "nontargets" (that's you and me) who may be improperly surveilled as merely "incidental collections" not worthy of real concern.

In the end, the FISCR essentially accepted the "just trust us" theory of executive accountability for warrantless surveillance for the case before it under the PAA. Even in these limited circumstances, that's bad news.

NSA Spying

The U.S. Government, with assistance from major telecommunications carriers including AT&T, has been engaging in a massive program of illegal dragnet surveillance of domestic communications and communications records of millions of ordinary Americans since at least 2001.

In 2005, after the New York Times broke the story of the surveillance program, the President publicly admitted one portion of it — warrantless surveillance of Americans believed to be communicating with people connected with terrorism suspects. Senior Bush Administration officials later confirmed that the President’s authorization went beyond the surveillance of terrorists and conceded that the program did not comply with the Foreign Intelligence Surveillance Act (FISA). The President, invoking a theory of limitless executive power to disregard the mandates of Congress, has reauthorized this warrantless surveillance more than thirty times, including after the Department of Justice found the program to violate criminal laws, and has indicated that he intends to continue doing so.

Shortly after the initial revelations, a whistleblower named Mark Klein came forward with evidence describing the specific AT&T facilities, including one on Folsom Street in San Francisco [PDF], where the handoff of customer communications is occurring. Mr. Klein’s evidence confirms the many newspaper reports that the government is engaging in dragnet surveillance of the domestic communications of millions of ordinary Americans.

EFF is fighting this surveillance on several fronts. In Hepting v. AT&T, EFF filed the first case against a telecom for violating its customers’ privacy. In response to EFF’s success in the case, and the filing of dozens of other cases across the country that attempted to hold law breaking telecoms accountable, the Bush Administration and the telecommunications carriers sought retroactive immunity for the carriers for their participation in the illegal surveillance. On July 9, 2008, Congress passed the FISA Amendments Act of 2008, which was intended to force the dismissal of Hepting v. AT&T and the other telecom lawsuits. EFF is working to challenge this law and hold telcoms accountable for their illegal behavior.

In addition, EFF is representing victims of the illegal surveillance program in Jewel v. NSA, a lawsuit filed in September 2008 against the government seeking to stop the warrantless wiretapping and hold the government officials behind the program accountable.

EFF is not alone in this fight. There are multiple cases challenging various parts of the illegal surveillance against both the telecoms and the government. This page collects information on EFF’s cases as well as cases brought by individuals, the American Civil Liberties Union of Northern California and of Illinois, the Center for Constitutional Rights, and others.

You and I both know *exactly* how they’ll use it.

http://www.freerepublic.com/focus/f-news/2164534/posts

Vigilant against liberty, I fear.

When this country was founded, every male between the ages of 18 and 45 was required to provide the services required to ensure the safety of our nation. Now we’ve delegated that responsibility to government agencies.

I fear we will find ourselves “protected” from our own liberties.

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