Foreign Intelligence Surveillance Act: before and after the USA Patriot Act - Legal Digest

FBI Law Enforcement Bulletin,The, June, 2003 by Michael J. Bulzomi

In contrast, a criminal Title III wiretap must be supported by probable cause to believe that a specific individual, using an identified phone or location, is committing a particular crime. (10) It requires that the government show that a predicate offense is, has, or will be committed by the subject of the surveillance" and that particular communications concerning the predicate offense will be obtained through the wiretap (12) at a specified location or through a specified device used by the target. (13)

FISA Information for Criminal Prosecutions

It is important to note that both FISA and Title m require a showing of probable cause to authorize electronic monitoring (and physical searches in the case of FISA). However, because of the differing objectives of the two acts, the degree of specificity required differs markedly. Arguably, because of the different probable cause showing required by FISA, it is easier for the government to obtain a EISA order than it is to obtain a Title III order. Because of this, the courts became concerned that the government would obtain FISA electronic surveillance orders in what were essentially criminal investigations to avoid the stricter requirements of Title III.

This concern surfaced in an espionage case that predates FISA. In United States v. Truong Dinh Hung, (14) the government used a warrant-less wiretap to overhear and record telephone conversations of the defendant and to bug his apartment. The wiretapping and bugging were authorized by the attorney general under the "foreign intelligence" exception to the Fourth Amendment. The defendant moved to suppress the evidence collected by means of the wiretap and bug as violations of the Fourth Amendment. The U.S. Court of Appeals for the Fourth Circuit admitted the evidence collected during the early days of the collection but held that evidence obtained after the primary purpose of the investigation had shifted from securing intelligence information to accumulating evidence of a crime and must be suppressed because of the failure to comply with the requirements of Title III. This ruling is the origin of the "primary purpose test that was to create problems in later cases.

Subsequent cases decided after the passage of FISA distinguished Truong on the grounds that the surveillance authorization in that case was not obtained pursuant to a FISA warrant. (15) These courts noted that FISA contains a statutory mechanism for the dissemination of criminal information obtained during an intelligence intercept and have held that when such evidence is discovered "incidentally" during an authorized FISA intercept it may be admitted in subsequent criminal prosecutions. (16) This would include situations where "the government can anticipate that the fruits of such surveillance may later be used, as allowed by [the statute], as evidence in a criminal trial." (17) This line of reasoning became known as the "primary purpose" test and was adopted by several circuits. (18) In other words, when the primary object of the electronic monitoring (or search) was to collect foreign intelligence information, FISA was the appropriate mechanism to seek authorization from the courts. When the primary purpos e was to seek criminal prosecution, Title III was the appropriate mechanism. Failure to strictly observe this distinction resulted in a possible suppression of the evidence.