D.N.J.: FISA’s less than PC standard is constitutional under Keith

FISA’s less than probable cause standard is constitutional under U.S. v. U.S. District Court (Keith). United States v. Shnewer, 2008 U.S. Dist. LEXIS 112001 (D. N.J. August 14, 2008, decided, December 29, 2009, filed):

First, Defendants argue FISA is unconstitutional because it lacks a requirement that the government show that a crime has been or is being committed. The probable cause requirement under FISA is different than the probable cause to seek a Title III wiretap. As noted by Judge Easterbrook in United States v. Ning Wen, 477 F.3d 896 (7th Cir. 2007), however, “the probable cause of which the fourth amendment speaks is not necessarily probable cause to believe that any law is being violated.” Id. at 898. The court in that case analogized the probable cause required by FISA to the probable cause requirements for administrative search warrants, which may issue on probable cause to believe that the government has adopted a reasonable system of regulations and inspections and is not targeting individuals for improper reasons. The Supreme Court in Keith recognized that Congress is constitutionally permitted to set different standards for probable cause in the context of foreign intelligence surveillance than in ordinary criminal surveillance. This different probable cause requirement does not render FISA in violation of the Fourth Amendment.

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In addition, Defendants argue the government may retain and use FISA-derived information without providing a defendant with a meaningful opportunity to challenge a FISA order. This is a challenge to the ex parte, in camera review contemplated by FISA. Defendants seek disclosure of the currently classified applications so that they may more effectively challenge the FISA orders. As noted above, while other courts have sympathized with the difficulty of Defendants’ position and the uphill battle they face in challenging orders of which they cannot know the content, such a system is permissible given the requirements of foreign intelligence gathering. See, e.g., Mubayyid, 521 F. Supp. 2d at 131.

Defendants argue further that without a criminal prosecution, no notice is ever given to a target that FISA-approved surveillance has occurred, and the notice provisions in general are impermissibly broad. The government argues, and the Court agrees, that Defendants do not have standing to raise this issue because a criminal prosecution was initiated in this case and the Defendants were given notice.