Federal Judge Strikes Down Two Patriot Act Wiretap Provisions

Oct 16, 2007
Nicole A. Ozer

Page Media

ACLU of Northern CA

In late September, US District Judge Ann Aiken ruled that the PATRIOT Act's changes to the Foreign Intelligence Surveillance Act (FISA) violated the Fourth Amendment's prohibition against unreasonable searches and seizures.

The sections of FISA struck down by Judge Aiken detail how and under what circumstances federal officials can get a warrant to wiretap. Prior to the passage of the PATRIOT Act, FISA required the government to certify to a secret FISA created court that the purpose of the wiretap was to collect foreign intelligence info. Post PATRIOT Act, FISA was amended to require that foreign collection be only "a significant purpose."

In her ruling, Judge Aiken found that this small but incredibly powerful change allowed the government to perform domestic spying without a constitutionally required showing of probable cause. She wrote: "In place of the Fourth Amendment, the people are expected to defer to the Executive Branch and its representation that it will authorize such surveillance only when appropriate. The defendant here is asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so."

In addition to the increased powers for domestic surveillance under the PATRIOT Act, the administration has also asked, and been given, even greater latitude to wiretap Americans, with fewer safeguards.

Just this past August, Congress passed the "Protect America Act," a 6-month measure that gives the Attorney General and Director of National Intelligence the ability to wiretap with virtually no judicial oversight. Under the Act, the government can monitor international communications when one party is in the United States, but only if no one particular person in the U.S. is being "targeted."

The House and Senate will soon cast critical votes about whether to make permanent the vast new spying powers that were granted under the Protect America Act. Take action by contacting your representatives in Congress and telling them to let the Protect America Act expire.

To learn more about the government's efforts to remove virtually any impediments to unchecked wiretapping, see the ACLU's information on recent FISA changes.

To see the actual section by section changes made to FISA by post 9/11 legislation, check out this guide by a former Department of Justice attorney.