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Confidential Sources and Information: FISA warrants

In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA),¹³ which created a secret spy court with powers to issue secret warrants authorizing officials to perform wiretaps and searches. After the attacks of September 11, the court's powers were increased with the passage of the USA PATRIOT Act. The Act expanded several categories of information that may be obtained by the court and allowed for sharing of information by a broad range of agencies. Proceedings of the FISA court are conducted in secret, and persons investigated under its powers are not aware of the investigation.

One concern of the news media is that the FISA could be used by the government to spy on journalists and discover their sources. Under the PATRIOT Act, investigators need show only that national security is a "significant purpose" in order to obtain a FISA warrant. And because proceedings of the FISA court are secret, journalists will have no warning that their sources are being disclosed. Indeed, a journalist whose source is revealed in the course of a FISA inquiry may never find out about the breach.

The PATRIOT Act also allows government officials to obtain an order from the FISA court permitting them to gather from any business all books, documents and other items related to foreign intelligence information. The court cannot grant such an order for the sole purpose of investigating activities protected by the First Amendment. Nevertheless, if a business is subject to such a search, the business is then prohibited from informing anybody about the search.

This aspect of the PATRIOT Act appears to apply to newsrooms, which potentially could be subject to a search, despite the provisions of Privacy Protection Act prohibiting such searches. Indeed, Justice Department officials have conceded that newspapers might be subject to a court order requiring production of documents.

Notes

13. 50 U.S.C. §§ 1801 - 1811.

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