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

(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, 2002, 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 as foreign powers, allowing the secretive and powerful FISA procedures reserved for our nation's fights against foreign groups to be turned against individuals acting alone.
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 ari@cdt.org