Feeds

Wiretapping, FISA, and the NSA

I always feel like somebody's watching me..

Security for virtualized datacentres

The Foreign Intelligence Surveillance Act (FISA)

Nevertheless, the executive branch has another mechanism for obtaining court orders to intercept communications (including email) if the government doesn't believe that it has evidence of a crime. The Foreign Intelligence Surveillance Act allows the government to get an interception or seizure order (or a secret search warrant) by proving to a special super-secret court that the purpose of the surveillance is to obtain foreign intelligence, including (as amended by the USA Patriot Act) intelligence about terrorism.

FISA orders are directed at interceptions of "US Persons", meaning US citizens or permanent resident aliens, or US corporations. Thus, if a US person is the target of the surveillance, FISA, by its terms, applies. If the US person is not the target, but is otherwise intercepted, the surveillance is OK as long as there are appropriate minimizations procedures in place.

Prior to the enactment of FISA, domestic wiretaps were routinely done for "national security purposes" under nothing more than Presidential authority. Presidents from Roosevelt to Nixon ordered domestic wiretaps to protect national security. Indeed, prior to the enactment of the FISA statute, there used to be an exception in the wiretap criminal statute that provided, "[n]othing contained in this [statute] shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities..." The Nixon administration used this exception to conduct surveillance and interception without warrants on a host of domestic "subversive" groups. When this was revealed, Congress stepped in to limit the abuses by giving the President a mechanism for conducting foreign intelligence (and now terrorism) investigations by passing the Foreign Intelligence Surveillance Act (FISA).

FISA and Presidential power

With the enactment of the FISA statute, this provision was changed to essentially read that FISA now "shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, and electronic communications may be conducted." Thirty-three years ago, the US Government tried to rely on pure Presidential power to engage in domestic surveillance of domestic subversive groups without a warrant. US Supreme Court rejected the government's contention that the courts were not prepared to deal with the sensitive classified information, could not make informed decisions about the threats to national security, and that the President had independent authority to order these wiretaps without the Courts. Even if the wiretaps were "reasonable" the Supreme court opined, they violated the Fourth Amendment. Shortly thereafter, the same court found that even the Attorney General could be held liable for authorizing these "national security" wiretaps in that case against a group planning to bomb bridges and tunnels. It was this precedent - establishing that a government official's immunity for ordering such illegal wiretaps is only limited - that Supreme Court nominee Samuel Alito sought to reverse when he was advising the Reagan Administration's Justice Department.

Beginner's guide to SSL certificates

More from The Register

next story
Bono apologises for iTunes album dump
Megalomania, generosity and FEAR of irrelevance drove group to Apple deal
Facebook, Apple: LADIES! Why not FREEZE your EGGS? It's on the company!
No biological clockwatching when you work in Silicon Valley
Doctor Who's Flatline: Cool monsters, yes, but utterly limp subplots
We know what the Doctor does, stop going on about it already
Arab States make play for greater government control of the internet
Nerds told to get lost in last-minute power grab bid at UN meeting
Apple SILENCES Bose, YANKS headphones from stores
The, er, Beats go on after noise-cancelling spat
Zippy one-liners, broken promises: Doctor Who on the Orient Express
Series finally hits stride, but Clara's U-turn is baffling
Don't bother telling people if you lose their data, say Euro bods
You read that right – with the proviso that it's encrypted
10 Top Tips For PRs Considering Whether To Phone The Register
You'll Read These And LOL Even Though They're Serious
prev story

Whitepapers

Forging a new future with identity relationship management
Learn about ForgeRock's next generation IRM platform and how it is designed to empower CEOS's and enterprises to engage with consumers.
Win a year’s supply of chocolate
There is no techie angle to this competition so we're not going to pretend there is, but everyone loves chocolate so who cares.
Why cloud backup?
Combining the latest advancements in disk-based backup with secure, integrated, cloud technologies offer organizations fast and assured recovery of their critical enterprise data.
High Performance for All
While HPC is not new, it has traditionally been seen as a specialist area – is it now geared up to meet more mainstream requirements?
Saudi Petroleum chooses Tegile storage solution
A storage solution that addresses company growth and performance for business-critical applications of caseware archive and search along with other key operational systems.