An indelible mark was left upon America after the terrorist attacks of September 11, 2001, and left the U.S. With an overshadowing sense of vulnerability. The U.S. was determined to respond to this new security threat and made Congress enact laws that provided new tools to fight terrorism. The most controversial act of Congress is the United and Strengthening of America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, otherwise known as the US Patriot Act, and its impact upon the use of electronic surveillance and physical searches authorized under the Foreign Intelligence Surveillance Act of 1978 (FISA) to combat foreign threats.
A majority of Americans worry that the actions taken by Congress will infringe upon their basic American liberties. To quote Benjamin Franklin: ‘Those who would give up essential liberties to purchase a little temporary safety, deserve neither liberty nor safety’. Naturally, the government needs to use new tools in order to preserve the rights and freedoms guaranteed by the Constitution, but, at the same time, the government needs to make sure that the fight against terrorism is vigorous and effective. An American should not be forced to seek safety over liberty.
The FISAs responsibilities since its inception in 1968, is to gather foreign intelligence information. The purpose of a Title III wiretap order is to gather evidence for criminal prosecution. An application by the FISA only needs to state facts to support probable cause that the target of the search is a foreign power or agent of a foreign power and that the facilities to be monitored or searched are being used by said target. In contrast, a criminal Title III wiretap must be supported by probable cause that a specific individual, using an identified phone or location, is committing a particular crime. So, both FISA and Title III require a showing of probable cause to authorize electronic monitoring.
The USA PATRIOT Act is the most significant change involving the purposes for which FISA-authorized electronic monitoring and searches may be used and the exchange of information between criminal and foreign intelligence investigators. In short, the USA PATRIOT Act overrides the FISA and Title III, which makes probable cause a non issue. On top of that a judge can not deny the application of surveillance by Federal officers. The courts have recognized that the USA PATRIOT Act is lawful and covers a breach in the wall between criminal law enforcement and intelligence or counter-intelligence gathering. The US PATRIOT Act amendments of the FISA statute do not violate the Fourth Amendment of the Constitution.
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