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Foreign intelligence surveillance warrants decline in 2008: DOJ report

[JURIST] The US Department of Justice (DOJ) [official website] on Friday reported to Congress [text, PDF] that 2,083 wiretap and search requests for investigating terrorism suspects were granted in 2008 through the Foreign Intelligence Surveillance Act (FISA) [text; JURIST news archive], a decline from 2,370 in 2007. This was the first decrease in warrants since the 9/11 terror attacks [JURIST news archive] in 2001. The Foreign Intelligence Surveillance Court (FISC) [official backgrounder] approves applications for electronic and physical surveillance warrants in regards to foreign powers or agents thereof and, in 2008, denied only one warrant application and modified two. FISA is aimed at addressing the government's need to obtain foreign intelligence information in light of privacy concerns for citizens. Obtainment of such a warrant requires probable cause to believe that a person, acting for or on behalf of a foreign power, is engaged in activities that involve or may involve a violation of criminal law. This is a lower standard [text, PDF] than is needed in ordinary criminal investigations.

In January, the Foreign Intelligence Surveillance Court of Review made public [JURIST report] a ruling [opinion, PDF] from August 2008 that upheld the Protect America Act [text], a 2007 amendment to FISA that allows warrantless wiretaps of international phone and e-mail communications. After the amendment, warrants are still required to monitor purely domestic communications. In November, Judge Henry Kennedy of the US District Court for the District of Columbia [official website] ordered [order, PDF] the DOJ to release legal memoranda [JURIST report] relating to the National Security Agency (NSA) [official website] warrantless domestic surveillance program [JURIST news archive]. In July, the Senate voted to approve a bill amending FISA to grant retroactive immunity [JURIST report] to telecommunications companies participating in the NSA warrantless surveillance program.

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