Feds Doing More Secret Searches

2003.1205

A record number of searches and wiretap orders granted by the Foreign Intelligence Surveillance Court in 2002 underscores a growing trend of reliance on the secret court in government investigations, privacy advocates say.

The number of FISA orders jumped more than 30 percent to 1,228 last year, compared to 934 the year before. The FBI uses the warrants in investigations of suspected terrorists and spies to eavesdrop on communications and conduct physical searches.

Since FISA's inception in 1978, the court has approved every FBI application it has received, despite disclosing last year in a report (PDF) that the agency had misled FISA judges in 75 cases.

"Increasingly, FISA is becoming the surveillance weapon of choice," said Barry Steinhardt, who directs the American Civil Liberty Union's Technology and Liberty program.

Steinhardt and others point to the fact that the increase in FISA orders corresponded with a 9 percent dip in the number of Title III wiretaps authorized by federal and state courts in 2002.

Last year, state and federal judges approved 1,359 wiretap applications, compared to 1,491 in 2001, according a report (PDF) published by the Administrative Office of the U.S. Courts.

"The main thing we're seeing is a greater reliance on FISA procedures for surveillance in the United States, and that doesn't bode well for civil liberties or government openness," said Marc Rotenberg, director of the Electronic Privacy Information Center.

The FBI couldn't be reached for comment.

Applications for FISA warrants receive less scrutiny than Title III wiretaps despite the fact that they are much more intrusive. While Title III wiretaps allow investigators to eavesdrop on the oral and electronic communications of suspects, FISA orders include these wiretapping techniques as well as physical searches of residences, automobiles and belongings.

Furthermore, while the government publishes a yearly report detailing how Title III wiretaps are employed -- including types of surveillance, resulting arrests and convictions, and reasons for the intercept orders -- the corresponding FISA report is a dry two-paragraph summation of the number of orders that the secret court granted.

The FISA court, comprised of seven district court judges appointed by the chief justice of the Supreme Court, meets every two weeks inside a windowless room at the Justice Department to review the department's warrant applications.

The FISA records are sealed and the court's proceedings secret; even people who are prosecuted using those orders cannot access the material used against them.

"It's ridiculously opaque to figure out what it all means," said Beryl Howell, who served as general counsel for the Senate judiciary committee from 1993 to 2003 before retiring to become a security consultant. "Whereas the government prepares elaborate reports for wiretaps, when it comes to FISA, there are virtually no reporting requirements."

A bipartisan bill introduced in February would increase congressional oversight of FISA and require the court to disclose more information about the surveillance activities it authorizes.