JURIST - Paper Chase: Surveillance court rules US could compel telecom to assist wiretapping

[JURIST] The US federal government acted within the Constitution when it compelled a telecommunications company to assist in warrantless surveillance [JURIST news archive] of certain customers, the Foreign Intelligence Surveillance Court of Review (FISC) [official backgrounder] said in a ruling [opinion, PDF] released Thursday. The redacted decision, dated August 22, 2008, was a response to the unnamed firm's challenge to government demands made under the since-expired Protect America Act (PAA). The court asserted a national security exception to the Fourth Amendment warrant requirement for surveillance "directed at a foreign power or an agent of a foreign power reasonably believed to be located outside the United States." The court also rejected an argument that the government failed to comply with the Fourth Amendment's reasonableness requirement, finding sufficient safeguards in the Attorney General's finding of probable cause and a 90-day limit on surveillance. The court stressed that it was ruling on the particulars of the case:

[W]e caution that our decision does not constitute an endorsement of broad-based, indiscriminate executive power. Rather, our decision recognizes that where the government has instituted several layers of serviceable safeguards to protect individual against unwarranted harms and to minimize incidental intrusions, its efforts to protect national security should not be frustrated by the courts. This is such a case.

The Department of Justice (DOJ) [official website] is pleased [DOJ press release] with the decision. The American Civil Liberties Union (ACLU) [advocacy website] argued [ACLU press release] that the government should not be allowed to nullify Fourth Amendment rights merely by invoking national security, but was encouraged by the court's recognition of the importance of probable cause in such surveillance.

In November, Judge Henry Kennedy of the US District Court for the District of Columbia [official website] ordered [order, PDF] the DOJ to release legal memoranda [JURIST report] relating to the National Security Agency (NSA) [official website] warrantless domestic surveillance program [JURIST news archive]. In September, telecommunications executives told the US Senate Commerce Committee [official website] that their companies would refrain from using certain surveillance technology [JURIST report] without users' permission. In July, The Senate voted to approve a bill amending the Foreign Intelligence Surveillance Act (FISA) [text; JURIST news archive] to grant retroactive immunity [JURIST report] to telecommunications companies participating in the NSA warrantless surveillance program.

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