Cynthia A. Brown and Carol M. Bast: Who’s Listening, Now? An Examination of the Government’s Use of FISA Evidence in Criminal Prosecutions
Workshop draft abstract:
Our nation’s national security efforts over the last decade generated a multitude of policy changes, including a redesign of the Foreign Intelligence Surveillance Act of 1978 (FISA). FISA once prescribed procedures mostly for electronic surveillance and physical searches necessary for gathering intelligence information on foreign soil and from foreigners. Today, FISA outlines the process for conducting surveillance and searches by federal authorities of individuals, including American citizens within the United States, suspected of espionage or terrorism against the United States on behalf of a foreign power. As a result of the many amendments since 9/11, the original legislation is all but unrecognizable, and the consequences of these amendments to Americans’ privacy are largely unknown. We do know that the administration’s requests for FISA surveillance have increased nearly 200 percent in the most recent eight years as compared to the statute’s first 23 years; restrictions on surreptitious surveillance of Americans under FISA have been greatly relaxed; and criminal cases indicate an increase in the government’s use of evidence obtained through FISA surveillance in the prosecution of ordinary crimes. This research is an empirical legal study examining the content of all reported federal cases involving FISA evidence. This study presents information that will better inform the impact FISA’s redesign is exacting on Americans’ privacy as our nation continues to struggle to strike the difficult balance between security and civil rights.