Intelligence Court Backs Protect America Act | Courthouse News Service
Thursday, November 30, 2023
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Intelligence Court Backs Protect America Act

(CN) - A federal intelligence court upheld the power of the president and Congress to require telecommunications companies to assist the government in conducting warrantless intelligence surveillance against foreigners.

The U.S. Foreign Intelligence Surveillance Court of Review upheld directives of the Protect America Act of 2007 that had been challenged by communications service providers, who claimed their obligation to help the warrantless wiretapping program violated the Fourth Amendment.

The surveillance court's Judge Selya ruled that the Fourth Amendment's ban on unreasonable search and seizure contained an exception for the collection of foreign intelligence information.

The petitioner, whose name was redacted from the ruling, refused to comply with the directives, challenging the notion of a foreign intelligence exception to the Fourth Amendment's warrant requirement. The government moved to compel compliance.

The Foreign Intelligence Surveillance Court, the lower court in this case, sided with the government and validated the Act's directives.

The review court acknowledged that the Supreme Court has never explicitly recognized the foreign intelligence exception, but pointed to cases in which the high court recognized "comparable exceptions" in so-called "special needs" cases.

"In those cases," Selya wrote, "the Court excused compliance with the Warrant Clause when the purpose behind the governmental action went beyond routine law enforcement and insisting upon a warrant would materially interfere with the accomplishment of that purpose."

The court concluded that, for a variety of reasons, foreign intelligence surveillance qualifies for similar exemption.

"For one thing, the purpose behind the surveillances ordered pursuant to the directives goes well beyond any garden-variety law enforcement objective," Selya wrote. "It involves the acquisition from overseas foreign agents of foreign intelligence to help protect national security."

The court also rejected the petitioner's fallback position: that the primary purpose of the foreign intelligence had to be surveillance.

"That dog will not hunt," Selya concluded.

"In our view, the more appropriate consideration is the programmatic purpose of the surveillances and whether - as in the special needs cases - that programmatic purpose involves some legitimate objective beyond ordinary crime control.

"Under this analysis, the surveillances authorized by the directives easily pass muster."

The government lauded the ruling as an affirmation of the Protect America Act.

"The Department of Justice is pleased with this important ruling by the Foreign Intelligence Surveillance Court of Review, which upholds the constitutionality of foreign intelligence surveillance conducted under the Protect America Act of 2007," department spokesman Dean Boyd said Thursday in a statement.

The court issued the ruling on Aug. 22, 2008, and ordered the redacted version unsealed on Thursday.

The decision is the second ruling in the review court's 30-year history. The first ruling, issued on Nov. 18, 2002, overturned a court surveillance order imposing restrictions on the government.

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