Fergie's Tech Blog

7th Circuit Ruling Expands Use of FISA Wiretaps

Pamela A. MacLean writes on LAW.com.

Federal prosecutors may use wiretap evidence obtained under the Foreign Intelligence Surveillance Act in spy cases for criminal prosecutions unrelated to the original espionage purpose of the wiretap, the 7th U.S. Circuit Court of Appeals has held.

The ruling is the first outside the special FISA court itself to interpret the law as expanding the ability of prosecutors to use the act in a variety of criminal contexts, according to defense attorney James Geis, a Chicago solo practitioner representing Ning Wen, who was convicted of violating export-control laws.

"Unless there is a constitutional problem in domestic use of evidence seized as part of an international investigation, there is no basis for suppression," wrote Chief Judge Frank Easterbrook in U.S. v. Wen, No. 06-1385.

"I think this holding makes it virtually impossible to challenge a FISA search," said Geis. "This pretty much makes it bulletproof."