Secret Court Decisions Expand Surveillance Powers

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July 8, 2013

The classified rulings of a secretive court are creating a new body of law that greatly expands the surveillance powers of the National Security Agency, according to an article in The New York Times.

The Foreign Intelligence Surveillance Court, or FISA court, was created to approve individual wiretaps on foreign citizens but has evolved to decide surveillance standards that have wide implications.

From the article:

In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

The article calls this decision “significant” because “it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects.”

Like all of the court’s opinions, the decision to expand the “special needs” doctrine is classified and therefore withheld from the public. Besides its secret opinions, another special feature of the FISA court is that it almost never disagrees with the government. Of the nearly 34,000 cases the court has heard since 1979, it has only rejected 11.  

For more background on the FISA court, read our Electronic Surveillance Law 101, which examines not only the court but the surveillance laws that it most frequently has to interpret. For more about the recent decisions, read the rest of The New York Times story.  

Topics: National Security

Related Content: Defense, Government Secrecy, Information Access, Intelligence

Authors: Andre Francisco