FISA COURT

Assessment of the FISA Court



Assessment of the FISA Court

Introduction

FISA is particularly important because it is the door through which many provisions of the Patriot Act, were able to circumvent certain constitutional provisions as well as an expansion or modification of many of the original intents of FISA. The Patriot Act included far-reaching modifications to the Foreign Intelligence Surveillance Act. It served to expand investigative powers under FISA to collect and analyze information (parts of the Patriot Act expanded the investigative powers of FISA - so FISA is both a separate entity and part of the Patriot Act). The importance of the Foreign Intelligence Surveillance Act (FISA) is that it is the bedrock of the Patriot Act. To understand the power of the Patriot Act and its impact on personal privacy it is important to understand its legislative power, primarily the FISA (Banks, 2007). The idea behind FISA was somehow to legislate circumstances to circumvent the Fourth Amendment (the need for a warrant for searches and seizures), specifically electronic surveillance, if national security were at stake. Americo Cinquegrana writes, “The Act was a product of years of debate concerning whether the President possessed inherent constitutional authority to approve warrantless searches for national security purposes” (Whilt, 2006, p. 89). To this point, the concept of privacy has evolved from a concept to actual federal law (even in balance with Freedom of Information), but even within these protections, modern technology has evolved to a point that one may not know how or when privacy got violated. The ability and permissions are found in FISA.

Creation of the Court

Early twentieth-century practice saw warrantless wiretapping by the Executive branch of government as a common practice. The practice has challenged in 1928 when the Supreme Court in Olmstead v. United States determined, that phone conversations overheard by wiretap had not covered with the Fourth Amendment. Cinquegrana cites the majority decision, “Chief Justice Taft speaking for the majority, emphasized the fact that 'voluntary conversations secretly overheard' could not be equated with material things' seized by the government. However, considering the nature of the phone service in the early part of the twentieth century, it is not unreasonable that there would not be any expectation of privacy and that the Supreme Court would not see any due to “the projecting of words outside their homes” (though the decision in Olmstead was 5 to 4). This narrow interpretation of the fourth amendment left any electronic surveillance that took place without “physical intrusion” without regulation or scrutiny, and the power to continue this warrantless activity remained solely with the executive branch (Steinberg, 2006).

Congress was not in agreement with this unchecked power of the Executive branch and countered Olmstead by enacting the Communications Act of 1934. Within the Communications of Act of 1934 was provision 605. The Michigan Law Review published an article which defined provision 605 as follows, “605 prohibits both unauthorized interception of any private radio or wire communications and unauthorized use of publication of any information contained ...