A Short History of Privacy: What everyone needs to know in 10 minutes Part IV – The FISA Wall [Issue]

Introduction:

This post is going to take another detour to examine the historical basis of a current issue. This issue affects all protections against government surveillance. The position in time of this post will be completely within the 5th post in this series. However, since this material is applicable to all governmental privacy intrusions and with its separate treatment, part 5 becomes almost entirely devoted to Internet issues, I will present it separately in this post. The material in question is the Foreign Intelligence Surveillance Act (FISA) of 1978, its effects on Title III of the Omnibus Crime and Control Act of 1968, and later on The Electronic Communications Privacy Act (ECPA) of 1986, and finally the effects of the legal fallout of the 9/11 Attacks on the FISA Wall (i.e. USA PATRIOT Act).

A (very) Short History of Privacy (FISA And Its Wall):

In 1978, The Foreign Intelligence Surveillance Act (FISA), set the boundaries for electronic surveillance of foreign individuals. FISA is separate from Title III of the Omnibus Crime and Control Act of 1968 which restricted electronic surveillance in the realm of domestic law enforcement until The Electronic Communications Privacy Act (ECPA) of 1986 was passed.

Under FISA electronic surveillance and covert searches are permitted in accordance with a court order, which is subject to an ex parte review by a special court of 7 federal judges. So there is still judicial review. However, the legal standard is not the same.

Note: According to wikipedia, “An ex parte decision is one decided by a judge without requiring all of the parties to the controversy to be present.”

Under Title III of the Omnibus Crime and Control Act and the 4th Amendment, and The ECPA starting in 1986, the legal standard to authorize surveillance is a 'showing of probable cause that the surveillance will uncover evidence of criminal activity'. Under FISA, the legal standard is 'a showing of probable cause to believe that the monitored party is a “foreign power” or “an agent of a foreign power”. Because of the weaker standard for FISA and the fact that evidence obtained through FISA orders is admissible in domestic criminal trials, a potential for abuse exists in using FISA.

The solution to the FISA problem is 'The FISA Wall'. The FISA Wall is a figurative barrier or an “information screening wall” between law enforcement and the intelligence operatives using the FISA order that prevents the law enforcement from initiating or directing FISA surveillance. Law enforcement can use the evidence gathered but cannot have any say in the direction of the investigation that uncovers it.

After the 9/11 terrorist attacks and the subsequent Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001 legislation, The FISA “Wall” came under attack. Due to problems with supposed confusion in the investigation with regards to The FISA Wall prior to the attacks, the FBI's investigation was supposedly stymied. Therefore, under media pressure in 2002, Attorney General John Ashcroft attempted to modify the policy of the FISA court and thereby weaken the “wall”. At first, the FISA court rejected the new policy, citing the errors in the FBI's FISA applications and restating the value of the “wall.” The executive branch appealed this decision to the Foreign Intelligence Surveillance Court of Review. This court in the same year found in its only published opinion (re Sealed Case), that by amending and adding the word ‘significant,’ to the statement “the purpose” yielding “the significant purpose” in the FISA, the USA PATRIOT Act eradicated any authority of the FISA court to weigh the relative weight the government places on criminal prosecution verses intelligence. Thereby, reversing the FISA court's decision and opening the possibility of using FISA as a work around of the more stringent procedures found in the ECPA and the 4th Amendment.

Conclusion:

The issue presented here does not need much analysis in the conclusions section to understand. Two main points here are: 1) Law enforcement needs to pay attention to detail and NOT be sloppy when filing applications for warrants. So that their investigations will not become stymied. 2) The USA PATRIOT Act has weakened privacy protections from government intrusion by providing a work around for the ECPA and the 4th Amendment through the FICA. This is just one of many reasons to repeal the USA PATRIOT Act. End of Story.

Note: I have tried to include all pertinent information on this topic. If anyone knows anything that I overlooked please let me know.

Here is a link to my Twitter and Facebook pages where you can follow me. I only post announcements of blog uploads. You will only receive about 1 tweet per week from me. If you want to follow me to read more of my posts and you have a twitter or Facebook account, this is a good way to ensure that you don't miss any of my posts.
https://twitter.com/SteemIt_V_of_R
https://www.facebook.com/voice.steemit.1

Don't forget to Upvote and follow if you found this blog to have value.

Disclaimer and General Information: All disclaimer statements and general information regarding my blog are posted at this link:
https://steemit.com/disclamer/@voice-of-reason/disclaimers-and-general-information-post

References:
This reference is a great overview of privacy law history in general:
Daniel J. Solove, A Brief History of Information Privacy Law in PROSKAUER ON PRIVACY, PLI (2006) http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2076&context=faculty_publications

This reference is the Foreign Intelligence Surveillance Court of Review's opinion:
http://www.prosecutingterrorists.com/InreSealedCaseFISA_Court11-18-02.pdf