FISA Appeals

[Donald ramsbottom]

From E Commerce Law Week.



"FISA Appeals Court Approves Expanded DOJ Wiretap Authority 
In the first case it has ever decided, on November 18, the U.S. Foreign
Intelligence Surveillance Court of Review approved greater wiretap
authority for federal law enforcement under the Foreign Intelligence
Surveillance Act ("FISA").  Established by FISA in 1978, the Court of
Review had never been called on to decide a case.  Its landmark first
decision is a substantial victory for the Department of Justice  -- it
increases the government's ability to conduct surveillance for law
enforcement purposes and allows for more sharing of information between
foreign intelligence investigators and criminal law enforcement officials.
The Court of Review reversed the ruling of the lower FISA court, which had
imposed a number of restrictions on government FISA orders.

-    Opinion of the United States Foreign Intelligence Surveillance Court
of Review In re:  Sealed Case No. 02-001, November 18, 2002

-    Search of ISP's Records OK Without Officer, Appeals Court Rules 
On November 18, the United States Court of Appeals for the Eighth Circuit
reversed a decision of the U.S. District Court for the District of
Minnesota, which found that a law enforcement officer who obtains a warrant
to search a suspect's e-mail account must be "present" when the ISP's
employees retrieve the information.  The District Court opinion had managed
the difficult hat trick of uniting the government, ISPs, and some privacy
groups -- all of whom condemned the opinion as unworkable and a bad idea.
The Eighth Circuit agreed, reversing the lower court and invoking the
principle that the Fourth Amendment is governed by a "reasonableness"
standard that is "flexible and should not be read to mandate rigid rules
that ignore countervailing law enforcement interests."  The court further
argued that other factors are relevant to determine the reasonableness of
the execution of a search warrant, including:  (1) the scope of the
warrant; (2) the behavior of the searching agents; (3) the conditions where
the search was conducted; and (4) the nature of the evidence being sought.  

-    Decision of the United States Court of Appeals for the Eighth Circuit
in United States of America v. Dale Robert Bach, No. 02-1238 (November 18,
2002)"




Donald Ramsbottom BA LLb (Hons) PGdip
Ramsbottom & Co Solicitors
Internet and Global Encryption Law Specialists & General UK  Law Matters
5 Seagrove Avenue Hayling Island Hampshire UK
Tel (44) 023 9246 5931 Fax (44) 023 9246 8349
Service by Fax or Email NOT accepted