Foreign Intelligence Surveillance Act

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The Foreign Intelligence Surveillance Act (FISA) of 1978 with amendments is a post-Watergate era reform which was intended to prescribe procedures for granting quasi-judicial authorization for electronic surveillance of persons engaged in espionage, terrorism, or narcotics trafficking. Critics have raised serious questions regarding protection of Americans' 4th Amendment rights - the right to be secure in your person and effects - in relation to the law.

There exists within the statute a potential that allows for domestic spying on political opponents similar to the abuses which toppled President Richard Nixon.[1] Such abuses, and more,[2] have in fact occurred during the Presidency of Barack Obama.[3] Abuses such as spying on members of Congress,[4] Congressional Committees tasked with Overseering agencies that administer the law,[5] the Supreme Court,[6] intimidation of journalists for reporting on the FISA law,[7] and blackmail are either known to have occurred or potentially exist under the law.[8] In 2017 the FBI said they could not assure that the hundreds of people administering programs created by the law would be investigated for felony criminal abuses.[9]

Origins

The creation of FISA courts can be considered as a post-Watergate reform. In Watergate, a White House created its own squad of detectives, surveillors, and dirty tricksters after it failed to get cooperation from J. Edgar Hoover's FBI, which had a reputation for political spying and illegal break-ins at the request of Presidents Franklin D. Roosevelt, Lyndon Johnson, and others.[10] To rein in such governmental and extra-governmental abuses, it was thought the judicial system, or a panel of judges focused on national security, needed to sign-off on the Executive branch's decision making and use of covert activity.[11] The use of judges for Executive branch oversight was thought to legitimize and de-politicize the issuance of surveillance warrants, for example, rather than reporting to a congressional oversight committee which may be in the hands of an opposition party.

FISA courts also examine 'secret evidence'.

Modifications

As the bill's name implies, the original Act authorized procedures for granting surveillance against a foreign intelligence agency, with no provisions for non-state actors such as al Qaeda or an international drug cartel.[12][13] The 2002 Amendments to the bill allowed for these changes, although the outdated name 'Foreign Intelligence' attached to the bill's name and the FISA courts it established remained. Furthermore, technological development expanded the meaning of the term 'wiretap'. While earlier amendments expanded the meaning beyond a microphone plant or hardwire tap on a telephone line to include satellite, microwave, and fiber-optic cables, the original law authorized 'wiretaps' only on a telephone number. With the advent of cell phones, which made it cheap and easy to change phone numbers, the authorization to 'wiretap' was changed from an electronic device to a person, regardless of what telephone or electronic source of transmission they may be using or is available for eavesdropping. Under the revisions, it is the person who is 'wiretapped', not the electronic device.

On October 26, 2001, Title II of the Patriot Act made significant changes to some of the original provisions of FISA. Nine months after the September 11th terrorist attack, other proposals to amend FISA were submitted. The amendments granted cross-agency intelligence sharing at their discretion.[14] Still, turf wars, competition, and mistrust between agencies exist leading to a redundancy of effort. Coordinated efforts on a target, on the hand, can be devasting. Witness the illegal activities focused against Donald Trump and associates in 2016-17.

Snowden leaks

In June 2013, two programs operating under FISA authority were leaked to the public. The first program collects and stores in bulk domestic phone records - the number that was dialed from, the number that was dialed to, and the date and duration of the call — also known as metadata collection. It does not collect the content of those calls. The second program collects the electronic communications (phone, text, email, etc.) including content, of foreign targets. The Director of National Intelligence (DNI), the nation's supposed top intelligence official,[15] acknowledged that data is collected pursuant to Section 702 of FISA. The program may not intentionally target any person known at the time it is collected to be located in the United States, and is prohibited by Section 702,[16] but the program may incidentally collect information, including the content of phone calls, emails and texts of Americans in the United States. As of the time of the Snowden leaks, as the revelations came to be called, the scope of the collection, the type of information collected, service providers involved, and the way in which it is collected remained unclear, according to Congressional Research Service,[17] the principal research and policy advisory arm of the United States Congress which authored the FISA Act and created the National Security Agency.

Since 2013, an order issued by a FISA court, has required a subsidiary of Verizon to provide a daily, on-going feed of all call detail records – including those for domestic calls – to the NSA.

See also

References

  1. Sally Yates Should Be Investigated For Her Possible Role in Watergate-Style Surveillance, by Robert Barnes, February 15th, 2017
  2. Obama Has Achieved Imperial Presidency That Nixon Wanted, Jonathan Turley, April 19, 2013
  3. New York Times reports "In the Obama administration’s last days, some White House officials scrambled to spread information about Russian efforts to undermine the presidential election — and about possible contacts between associates of President-elect Donald Trump and Russians — across the government. [1]
  4. Kucinich: I Was Wiretapped As A Congressman, They Can Certainly Tap A Presidential Candidate, Ian Schwartz, March 10, 2017
  5. A Brief History of the CIA's Unpunished Spying on the Senate: President Obama's choice to lead the intelligence agency has undermined core checks and balances with impunity. CONOR FRIEDERSDORF, DEC 23, 2014
  6. Daniel Ellsberg, in responding to a question about why should people care, said: "Do they really believe that real democracy is viable, when one branch of government, the Executive, knows or can know every detail of every private communication (or credit card transaction, or movement) of: every journalist; every source to every journalist; every member of Congress and their staffs; every judge, at every level up to the Supreme Court? Do they think that every one of these people "has nothing to hide," nothing that could be used to blackmail them or manipulate them, or neutralize their dissent to Executive policies, or influence voting behavior? Is investigative journalism, or aggressive Congressional investigation of the Executive, or court restraints on Executive practices, really possible with that amount of transparency to the Executive of their private and professional lives and associations? And without any of those checks, the kind of democracy you have is that of the German Democratic Republic in East Germany, with its Stasi (which had a miniscule fraction of the surveillance capability the NSA has now, but enough to turn a fraction of the population of East Germany into secret Stasi informants)." https://freedom.press/news-advocacy/highlights-from-daniel-ellsbergas-reddit-ama-on-edward-snowden-and-nsa-surveillance/
  7. When can the FBI use National Security Letters to spy on journalists? That’s classified. By Trevor Timm, Columbia Journalism Review, JANUARY 11, 2016
  8. https://jonrappoport.wordpress.com/2017/03/18/trump-is-challenging-the-whole-cia-media-nexus/
  9. http://www.defenseone.com/politics/2017/03/gop-lawmaker-fbi-stop-leaks-russia-probe-or-lose-key-surveillance-tool/136325/?oref=d-topstory
  10. Victor Laskey, It Didn't Start With Watergate, Dell, 1977, pp. 156-186
  11. William C. Sullivan, “Personal Observations and Recommendations on Privacy,“ in Privacy in a Free Society, Final Report, Annual Chief Justice Warren Conference on Advocacy in the United States, June 1974.
  12. Executive Order 12333 issued by Ronald Reagan did allow for surveillance against non-governmental actors such as terrorist organizations and drug cartels, but it was not codified into law until the Patriot Act.
  13. "[Reagan] signed the order into law in 1981, giving the intelligence community the ability to extend their powers and streamlining the ability of federal agencies also investigating intelligence issues, to cooperate with the CIA requests for information. It gives the NSA almost unlimited authority to access information and intercept overseas communications. Obama sought to expand those powers and take down the wall during his second term in office. The original executive order only allowed limited personnel - those with the highest levels of security clearances - to view the original raw data. But the changes came at the end of his presidency. On Jan. 3, then Attorney General Loretta Lynch signed the expansion of the executive order, which had already been signed by DNI Director James Clapper in mid-December. For many years the executive order didn’t draw a lot of attention, but NSA whistleblower Edward Snowden exposed its vast reach. Snowden, who is being sought by U.S. authorities for leaking classified information and is now in Russia, was the catalyst that exposed the vast authority of the NSA by revealing how the agency is capable of retrieving and storing vast amounts of what Americans considered private communications in their servers." http://circa.com/politics/some-us-intelligence-officials-want-trump-to-rescind-obamas-expansion-of-nsa-data
  14. Congressional Research Service, February 15, 2007
  15. In 2016, the Director of the FBI, James Comey, shoved aside the Attorney General and the DNI to make himself the chief spokesman of the intelligence community charged with guarding the nation's secrets.
  16. https://www.nsa.gov/about/civil-liberties/resources/assets/files/pclob_section_702_report.pdf
  17. NSA Surveillance Leaks: Background and Issues for Congress Page, Congressional Research Service, July 2, 2013

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