January 15, 2009 | By Cindy Cohn

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.


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