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Secret U.S. court OKs electronic spying
jaihoon
11/19/02 at 00:49:58
Secret U.S. court OKs electronic spying


By Declan McCullagh
Staff Writer, CNET News.com
November 18, 2002, 6:12 PM PT


WASHINGTON--A secretive federal court on Monday granted police broad authority to monitor Internet usage, record keystrokes and employ other surveillance methods against terror and espionage suspects.
In an unexpected and near-complete victory for law enforcement, the Foreign Intelligence Surveillance Court of Review overturned a lower court's decision and said that Attorney General John Ashcroft's request for new powers was reasonable.

The 56-page ruling removes procedural barriers for federal agents conducting surveillance under the 1978 Foreign Intelligence Surveillance Act (FISA). The law, enacted as part of post-Watergate reforms, permits sweeping electronic surveillance, telephone eavesdropping and surreptitious searches of residences and offices.



At a press conference Monday afternoon, Ashcroft applauded the ruling, characterizing it as a "victory for liberty, safety and the security of the American people."

Ashcroft said the ruling marks a new era of collaboration between police and intelligence agencies such as the CIA and the National Security Agency.

"This decision allows law enforcement officials to learn from intelligence officials, and vice versa, as a means of sort of allowing the information to flow from one community to another," Ashcroft said. "This will greatly enhance our ability to put pieces together that different agencies have. I believe this is a giant step forward."

The lower court, called the Foreign Intelligence Surveillance Court, had said there must be a well-defined wall separating domestic police agencies from spy agencies. It accused the FBI of submitting incorrect information under oath in more than 75 cases, including one signed by then-FBI Director Louis Freeh.

The lower court's decision, written in May, went so far as to say that changes to the Justice Department's procedures were necessary "to protect the privacy of Americans in these highly intrusive surveillances and searches."

Justice Department lawyers argued that the USA Patriot Act, signed by President George W. Bush last fall, made any such wall obsolete and unnecessary. The Patriot Act also changed the requirements for FISA surveillance, saying that espionage or terrorist acts did not have to be the primary purpose of the investigation but only a "significant purpose."

The review court agreed with Ashcroft, even suggesting that greater use of FISA surveillance conceivably could have thwarted the Sept. 11 terrorist attacks. It ruled that Ashcroft's proposed procedures, "if they do not meet the minimum Fourth Amendment warrant requirements, certainly come close."

Civil libertarians said they were alarmed by the ruling, the public version of which was censored for security reasons. The American Civil Liberties Union and the National Association of Criminal Defense Lawyers had filed friend-of-the-court briefs urging the appeals court to uphold the lower court's decision.

Robert Levy, a senior fellow at the Cato Institute said: "Because the FISA now applies to ordinary criminal matters if they are dressed up as national security inquiries, the new rules could open the door to circumvention of the Fourth Amendment's warrant requirements. The result: rubber-stamp judicial consent to phone and Internet surveillance, even in regular criminal cases, and FBI access to medical, educational and other business records that conceivably relate to foreign intelligence probes."


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