In its surveillance of American citizens, the National Security Agency is supposed to be constrained by the Foreign Intelligence Surveillance Act, which specifies exactly which violations of the Fourth Amendment are notionally permitted and which ones are doubly and explicitly prohibited by Congress.
The NSA, being above the law, ignores all such constraints whenever it is convenient for them to do so. But the Foreign Intelligence Surveillance Act stipulates that the NSA is subject to a feeble kind of judicial oversight and review, by a body called the Foreign Intelligence Surveillance Court, which has managed to detect a few of the NSA's numerous modes of violation and issued carefully phrased reprimands.
This article attempts to enumerate the known violations and points out that, taken together, they demonstrate that the NSA operated illegally from 2004 through 2018, without interruption.
“NSA — Continually Violating FISA Since 2004”
Marcy Wheeler, emptywheel, June 28, 2018
When the Department of Homeland Security or the Federal Bureau of Investigation wants access to some information that was originally obtained by an intelligence service using some unconstitutional mass-surveillance technique, it sometimes seeks a veneer of legal protection for its actions by making a “collection request” to the Foreign Intelligence Surveillance Court, acting as a “Court of Review.”
Usually the FISC rubber-stamps these applications. (This is hardly surprising, since the proceedings of the FISC are not adversarial — no one is present to represent the interests of the victims of surveillance or to point out violations of the Fourth Amendment or of international law.) Sometimes the court makes a few comments, asks the applicant to rewrite the request, and then rubber-stamps the results.
Since last year, however, when Congress renewed and revised the law authorizing these ludicrous procedures, it created an arrangement under which the court can, if it chooses, invite a “friend of the court” to comment on the proposals it is reviewing, and in particular to deal with any novel or significant question of law that those proposals raise. Typically the job is given to former Department of Justice officials who can be relied on not to introduce undesirable innovations into the cozy arrangements between the FISC and the state-security apparatus.
Evidently the possibility of exposing their requests to the skeptical gaze of these third parties has succeeded in spooking the applicants. Last year, there were three occasions on which the FISC saw fit to invite in a friend of the court, and in each case the government agency that made the application chose to withdraw it instead of allowing anyone else to see it.
Marcy Wheeler speculates on the motives for these withdrawals:
“In 2017, the Government Withdrew Three FISA Collection Requests Rather Than Face an Amicus Review”
“emptywheel”, emptywheel, April 26, 2017
That the government has been withdrawing requests rather than submitting them to the scrutiny of an amicus suggests several things.
First, it may be withdrawing such applications out of reluctance to share details of such techniques even with a cleared amicus, not even one of the three who served as very senior DOJ officials in the past. If that's right, that would reflect some pretty exotic requests …
Second, … past history has shown that the government often finds another way to get information denied by the FISC, and that may have happened with these three requests.
Finally, remember that as part of 702 reauthorization last year, [Senator] Ron Wyden warned that reauthorization should include language preventing the government from demanding that companies provide technical assistance. … Some of these withdrawn requests … may reflect such onerous technical requests.
“The Problems with FISA, Secrecy, and Automatically Classified Information”
David Ruiz, Deeplinks, Electronic Frontier Foundation, February 26, 2018
The gist: The key question raised in the Nunes and Schiff memos is whether the evidence supporting the Federal Bureau of Investigation's applications for a surveillance order against a prominent Republican, formerly an advisor to the President, consisted entirely of biased information funded by political opponents of the President. But neither side knows the answer to that question, because it's classified, and no member of the House Permanent Select Committee on Intelligence could provide the answer in public even if they did know it, for the same reason. The general public will never have enough evidence to answer this question or even to form a reliable opinion about it. The House Permanent Select Committee on Intelligence will never have even enough information to carry out their duty to oversee the implementation of the Foreign Intelligence Surveillance Act.
The optimists at the Electronic Frontier Foundation believe that it will someday be possible to repeal the Foreign Intelligence Surveillance Act and to restore a measure of transparency to the operations of the government's counterterrorism agencies. My own view is that those agencies are above the law and permanently out of its reach.
The Electronic Frontier Foundation sued the government to obtain the opinions of the Foreign Intelligence Surveillance Court on the requests for (unconstitutional) general warrants against American citizens under section 702 of the Foreign Intelligence Surveillance Act, which notionally authorizes the court to issue specific warrants against non-citizens.
Last week, the FISC released about a third of the opinions that the EFF requested, in heavily redacted form. They show that government agencies, seeking the court's approval for warrantless mass surveillance, also tried repeatedly to sneak in language that would have established even wider collection parameters and even longer data-retention policies. Predictably, the insensate demands for ever more intensive surveillance eventually exceed any prescribed bounds, however weak.
“Newly Released Surveillance Orders Show That Even with Individualized Court Oversight, Spying Powers are Misused”
Aaron Mackey and Andrew Crocker, Deeplinks, Electronic Frontier Foundation, February 7, 2018
Over a period between 15 months and three years, the NSA obtained [without any court authorization] a number of communications of U.S. persons. The precise number of communications is redacted.
Rather than notifying the court that it had destroyed the communications it obtained without authorization, the NSA made an absurd argument in a bid to retain the communications: because the surveillance was unauthorized, the agency's internal procedures that require officials to delete non-relevant communications should not apply. Essentially, because the surveillance was unlawful, the law shouldn't apply and the NSA should get to keep what it had obtained.
The court rejected the NSA's argument. “One would expect the procedures' restrictions on retaining and disseminating U.S. person information to apply most fully to such communications, not, as the government would have it, to fail to apply at all,” the court wrote.
The court went on to day that “[t]here is no persuasive reason to give the [procedures] the paradoxical and self-defeating interpretation advanced by the government.”
The court then ordered the NSA to destroy the communications it had obtained without FISC authorization. … Rather than immediately complying with the order, the NSA asked the FISC once more to allow it to keep the communications.
Again the court rejected the government's arguments. “No lawful benefit can plausibly result from retaining this information, but further violation of law could ensue,” the court wrote. The court then ordered the NSA to not only delete the data, but to provide reports on the status of its destruction “until such time as the destruction process has been completed.”
That was in May 2011. Whether the NSA ever destroyed the data in question, whether it ever filed any of the required reports, and whether any further violations of law have ensued are all secrets. None of the inside parties has chosen to release the answers. Perhaps further lawsuits will yield some information.
“The Senate Just Voted to Expand the Warrantless Surveillance of US Citizens”
Daniel Oberhaus, Motherboard, January 18, 2018
On Thursday afternoon, the US Senate voted in favor of the FISA Amendments Reauthorization Act of 2017, a bill that will expand the warrantless surveillance of US citizens. The bill passed by a vote of 65–34, with 43 Republicans and 21 Democrats voting in its favor.
The bill will now go to the White House to be signed into law by President Trump. It reauthorizes FISA Section 702 until 2024.
Among the prominent Democratic senators voting in favor of this patently unconstitutional bill were Tammy Duckworth, Diane Feinstein, Tim Kaine, Amy Klobuchar, Chuck Schumer, Jeanne Shaheen, and Debbie Stabenow. Nice work, fools.
“Congress Demanded NSA Spying Reform. Instead, They Let You Down”
Zack Whittaker, Zero Day, January 18, 2018
The Electronic Frontier Foundation responded by renewing their determination to pursue lawsuits against warrantless surveillance of Americans notionally justified by section 702 of FISA and to promote and support the development of strong encryption and other protocols and tools to ensure the privacy of documents and communications.
“An Open Letter to Our Community on Congress's Vote to Extend NSA Spying from EFF Executive Director Cindy Cohn”
Cindy Cohn, Deeplinks, Electronic Frontier Foundation, January 18, 2018
We offer this response to the National Security Agency and its allies in Congress: enjoy it while you can because it won't last.
Today's Congressional failure redoubles our commitment to seek justice through the courts and through the development and spread of technology that protects our privacy and security. …
We aim to bring mass surveillance to the Supreme Court. By showcasing the unconstitutionality of the NSA's collect-it-all approach to tapping the Internet, we'll seek to end the dragnet surveillance of millions of innocent people. We know that the wheels of justice turn slowly, especially when it comes to impact litigation against the NSA, but we're in this for the long run.