Lower Surveillance Standard Already In Place

As originally passed, any FISA investigation must have had the collection of Foreign Intelligence Information as its sole or "primary purpose." The USA-PATRIOT Act expanded the application of FISA to those situations where foreign intelligence gathering is merely "a significant" purpose of the investigation. "Significant" is not defined, which vagueness will lead to inconsistent determinations and potential overuse of the FISA standards. The more lenient standards that the government must meet under FISA (as opposed to the stringent requirements of Title III) are justified by the fact that FISA's provisions facilitate the collection of foreign intelligence information, not criminal evidence. This traditional justification is eliminated where the lax FISA provisions are applicable to the interception of information relating to a domestic criminal investigation. The change is a serious alteration to the delicate constitutional balance reflected in the prior legal regime governing electronic surveillance.

SEC. 218. FOREIGN INTELLIGENCE INFORMATION.

Sections 104(a)(7)(B) and section 303(a)(7)(B) (50 U.S.C. 1804(a)(7)(B) and 1823(a)(7)(B)) of the Foreign Intelligence Surveillance Act of 1978 are each amended by striking `the purpose' and inserting `a significant purpose'.