News Release

November 18, 2002

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Appeals Court Ruling on Surveillance Could Skirt Fourth Amendment
Panel overturns lower court's ruling on USA PATRIOT Act surveillance guidelines

WASHINGTON -- A Federal appeals court today, overturning a May decision by the Foreign Intelligence Surveillance Court, found that the expanded wiretap guidelines given to Attorney General John Ashcroft under the USA PATRIOT Act do not violate the Constitution.

In response to today's ruling, Robert A. Levy, senior fellow in constitutional studies, and Timothy Lynch, director of Cato's Project on Criminal Justice, had the following comments:

"The PATRIOT Act expands the Foreign Intelligence Surveillance Act--a Carter-administration program that created a special federal court to approve electronic surveillance of citizens and resident aliens alleged to be acting on behalf of a foreign power. Previously, the FISA court granted surveillance authority if foreign intelligence was the primary purpose of an investigation. No longer. Under Section 218 of the Act, foreign intelligence need only be `a significant purpose' of an investigation.

"That sounds like a trivial change, but it isn't. The FISA requires probable cause only that a target is connected to a foreign power or terror group, but not probable cause that crimes are being committed. 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.

"Today's decision by a three-judge appellate panel upholds the constitutionality of the FISA court's expanded power, notwithstanding a contrary holding by the FISA court itself. Perhaps, as the appellate court said, the new law's surveillance provisions `come close' enough to meeting minimal constitutional standards for reasonable searches. But what may arguably be constitutional is nonetheless bad public policy. The lower court got it right. The PATRIOT Act could lead to misuse of intelligence information in criminal cases."