The Court, which was judging an appeal by an unnamed US telecommunications company, ruled that the Government was within its rights to force the company to covertly monitor communications with overseas individuals.
The unnamed telco had originally filed suit against the Government after being told to help with a wiretapping operation, as mandated under the Protect America Act. The telco took the case to the Foreign Intelligence Surveillance Court (FISC). After the FISC ruled against the telco, it went to the FISCR.
The Protect America Act was a temporary set of amendments to the 1978 Foreign Intelligence Surveillance Act (FISA), allowing the Government to enlist telcos in surveillance of individuals believed to be living overseas (including US citizens). The telco complained to the FISCR that the legislation didn't exclude the government from the Fourth Amendment requirement for a warrant. The court found legal exceptions allowing the Government to request telco assistance for surveillance without requiring a warrant when gathering foreign intelligence. The emphasis in these situations is on speed, it said.
Cindy Cohn, legal director for the Electronic Frontier Foundation, said that the ruling was legally irrelevant, as the telco was originally required to assist with warrantless surveillance under the PAA, and that legislation has since expired. However, it still set a bad precedent, she warned. "In the end, the FISCR essentially accepted the "just trust us" theory of executive accountability for warrantless surveillance for the case before it under the PAA. Even in these limited circumstances, that's bad news."
Privacy advocates are more concerned with the FISA Amendments Act, which replaced the PAA when it was voted through the Senate on July 9th. Among existing provisions, the FISA Amendments Act also granted telcos that had assisted with warrantless wiretapping retroactive immunity.
Whie in the Senate, President Obama voted for the FISA Amendments Act, on the grounds that the US intelligence programme needed the expanded spying powers. However, at the time, he said that he was against the retroactive immunity provision.
Attorney general nominee Eric Holder, whose appointment the Senate Judiciary Subcommittee votes on Wednesday, affirmed his support for the amendments in his nomination hearing on 15 January. "Yes, I believe that the law is constitutional," he said during the hearing. "It's a very essential tool for us in fighting terrorism."