Much Ado About Nothing? A Comparison of the Individual Rights Provided by the FISA and Title III Notice and Civil Remedy Provisions
Together, the Foreign Intelligence Surveillance Act (“FISA”) and Title III of the Omnibus Crime Control and Safe Streets Act (“Title III”) regulate domestic wiretapping. Both statutes attempt to provide effective tools for investigators without unduly abridging individual rights. The protective provisions of each statute, though similar in aim, operate differently, and commentators have suggested that in a variety of circumstances FISA is less protective of individual rights than Title III. This note addresses one apparent difference between the statutes: the relative efficacy of their notice and civil remedy provisions. It concludes that the Title III civil remedy provision is far more limited than it appears on its face to be, and provides little, if any, additional protection than the FISA civil remedy provision.
At first glance, the notice and civil remedy provisions of FISA and Title III seem to provide starkly different protections. Both acts contain provisions allowing subjects of illegal surveillance to sue for statutory damages, fees and costs, and punitive damages in appropriate circumstances. Under Title III, targets of surveillance must be notified within 90 days of the termination of a wiretap, or the denial of a wiretap application, unless an ex parte showing of good cause is made. By contrast, FISA does not require notice to be given unless information derived from the surveillance is to be used in an official proceeding. As a result, the FISA civil damages provision appears to be a classic right without a remedy, at least with respect to surveillance targets who are not subsequently prosecuted.
