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NewFISA

NewFISA

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Published by: ialsafe on Mar 10, 2012
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1THE FISA AMENDMENTS ACT OF 2001 AND 2008: SHREDDING THE FOURTH ANDFIFTH AMENDMENTSFlorida Coastal School of LawAbstract:September 11, 2001 was a tragic event that changed the face of America, and broughtabout sweeping reforms in the legal system, allowing broader measures to protect nationalsecurity while testing the boundaries of civil liberties. One such reform is the Foreign
Intelligence Surveillance Act or “FISA,” as amended in 2001 and 2008. FISA was enacted in
1978, ushering in the era of electronic surveillance for foreign intelligence purposes, requiringthe government to seek an order from
the Foreign Intelligence Surveillance Court or “FISC” to
conduct surveillance. After the FISA amendments in 2001 and 2008 things changed, FISA hasbecome the primary mode for abusing the Fourth Amendment, lowering the probable causestandard to receive a warrant for surveillance and even warrantless wiretapping against American
citizens. Additionally, FISA slashes the Fifth Amendment’s Due Process Clause by allowing
retroactive immunity for Telecommunications Providers acting in complicity with governmentwiretapping. FISA dismantles civil liberties for the sake of national security. This paper willdiscuss specific FISA amendments, arguments supporting national security measures, argumentsto protect civil liberties, and suggestions for reform to preserve Fourth and Fifth Amendmentrights.
Introduction
 In 1978, during the Cold War, Congress passed the Foreign Intelligence Surveillance Act,or FISA; effectively entering the field of electronic surveillance for foreign intelligencepurposes.
1
The purpose was to establish a statutory procedure authorizing the use of electronicsurveillance in order to obtain foreign intelligence information.
2
Presidential administrationssince Franklin D. Roosevelt have attempted to justify the ability to conduct electronicsurveillance for national security purposes as an exception to Fourth Amendment warrantrequirements.
3
Each administration
following Roosevelt’s continued to expand on
this
1Matthew A. Anzaldi & Jonathan W. Gannon,
 In Re Directives Pursuant to Section 105B Of The Foreign Intelligence Surveillance Act: Judicial Recognition Of Certain Warrantless Foreign Intelligence Surveillance
, 88 T
EX
L.
 
R
EV
. 1599, 1605 (2010).2
 
 Id.
 3
 
John J. Dvorske, Annotation,
Validity, Construction, and Application of Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.A. §§ 1801 et seq.) Authorizing Electronic Surveillance of Foreign Powers and Their Agents
, 190 A.L.R. F
ED
. 385 (2003).
 
2proclaimed national security exception to the warrant requirement of the Fourth Amendment.
4
 The original enactment of FISA helped calm public fear over wiretapping, after the Watergatescandal exposed gross abuses of the Executive authorization to conduct warrantless wiretappingfor national security purposes, and, for many years, FISA went unnoticed.
5
However, after thetragic events of September 11, 2001 left the country feeling scarred and vulnerable, Congresstook action.Sweeping reforms in the American legal system broadened national security measureswhile testing the limits of American liberties. Reforms to FISA also took place in 2001 and2008. Some of the most drastic reforms to FISA came after the USA Patriot Act of 2001 and in2008 following the passage of the Protect America Act of 2007. The amendments in 2001 wereset to expire in 2005; however, Congress passed the USA Patriot Improvement andReauthorization Act of 2005, which made the 2001 amendments permanent.
6
Although thesereforms expanded national security measures to fight the threat of terrorism, it came at a terriblecost.FISA in its current form effectively abuses and dismantle the Fourth and FifthAmendments. Under the Fourth Amendment, probable cause standards to obtain a warrant forforeign intelligence information as opposed to criminal investigations are less stringent.
7
As willbe discussed later in the paper the difference in probable cause standards coupled with a shift instatutory language leads to Fourth Amendment abuse. Additionally, specific and particular facts
4
 
 Id.
 5
 
 Id.
 6
 
B
RIAN
T.
 
Y
EH
&
 
C
HARLES
D
OYLE
,
 
C
ONG
.
 
R
ESEARCH
S
ERV
., RL 33332, USA
 
PATRIOT
 
I
MPROVEMENT AND
R
EAUTHORIZATION
A
CT OF
2005:
 
A
 
L
EGAL
A
NALYSIS
21 (2006); Brian T. Yeh & Charles Doyle,
USA PATRIOT Improvement and Reauthorization Act: A Legal Analysis
,
available at 
 
U.S. v. Duggan, 743 F.2d 59, 73 (2d Cir. 1984);
See also
U.S. v. Falvey, 540 F. Supp. 1306, 1312 (E.D.N.Y. 1982) (standing for theproposition that satisfying probable cause for gathering foreign intelligence information is different and less strict as opposed to probable causefor regular criminal investigations.)
 
3are no longer required.
8
Instead, agencies such as the FBI must only state that the investigationis for the prevention of terrorism or for clandestine intelligence gathering.
9
The reform regardingthe Due Process Clause of the Fifth Amendment allows a telecommunications provider toreceive retroactive immunity from civil suits for its role in assisting the government withdomestic surveillance.
10
The stripping of our Fourth and Fifth Amendment rights isunacceptable. This paper discusses the specific provisions in the FISA amendments, thearguments supporting these national security measures, the arguments to protect civil liberties,and suggestions to reform FISA to preserve the Fourth and Fifth Amendments. A few of thenecessary reforms require reestablishing the primary purpose of FISA; suppressing evidenceseized outside of Fourth Amendment protections; adding transparency to the FISC; and ridding agrant of retroactive immunity to Telecommunications Providers.
FISA Legislation
 When Congress enacted FISA, its intent was to establish a statutory procedure forsanctioning the implementation of electronic surveillance in the United States for foreignintelligence purposes.
11
FISA, in turn, established two Article III courts, which are inferiorcourts established by Congress in accordance with the Constitution, to implement FISA.
12
TheForeign Intelligence Surveillance Court, or FISC, is composed of seven federal district court
8
 
50 U.S.C. § 1861(b)(2) (2006) (this section states that in order to access information concerning business records for foreign intelligenceinvestigations an application shall specify that the records concerned are sought for an authorized investigation that is conducted under guidelinesset by the Attorney General or Executive; there is no requirement to set forth specific or particular facts).9Dvorkse,
supra
note 3.10
 
Mike Wagner,
Warrantless Wiretapping, Retroactive Immunity, And The Fifth Amendment 
, 78 G
EO
.
 
W
ASH
.
 
L.
 
R
EV
. 204, 205 (2009).11
 
Anzaldi et al.,
supra
note 1, at 1605.12
 
Note,
Shifting The FISA Paradigm: Protecting Civil Liberties By Eliminating Ex Ante Judicial Approval
, 121 H
ARV
.
 
L.
 
R
EV
. 2200, 2201(2007) (when Congress set out to curtail secret Executive surveillance of political enemies exposed in the Church Committee Report regardingthe Watergate Scandal, it created FISA, which called for establishing Article III courts to implement ex ante judicial approval through theissuance of warrants).

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