FISA Court Says FBI May Be Abusing Surveillance Powers; Will Continue To Allow It To Abuse Surveillance Powers

from the but-the-court-has-made-it-clear-it's-disappointed dept

Reform efforts following the Snowden leaks led to some minor improvements at the FISA Court. The USA Freedom Act gave the court permission to allow someone to present the side of the surveilled from time to time and introduced some reporting requirements that allowed Americans to see just a bit more about how their surveillance tax dollars were spent.

But if anything is going to change the way America's surveillance agencies perform their duties, it's going to be up to the FISA Court, which can reject requests and shut down surveillance programs until they're fixed. The Section 215 collection of phone records may have reached an early end-of-life after the untargeted bulk collection of phone records was banned, but other surveillance authorities continue unaltered. The one that leads to most surveillance abuses is one the court can't seem to bring under control: Section 702.

This is supposed to be surveillance of foreign national security targets, but agencies with access to 702 collection far too routinely use this as a backdoor to American's communications. And nothing about that has changed, eight years down the road from the Snowden leaks. A newly declassified decision [PDF] from the FISA Court shows the court is still willing to overlook egregious abuses of this authority to spy on Americans.

Here's the EFF's summary of last November's decision -- one made public late last month by the FISA Court.

[T]he FISC again found that a series of overly complex but still ultimately swiss cheese agency protocols -- that are admittedly not even being followed -- resolve the Fourth Amendment problems caused by the massive governmental seizures and searches of our communications currently occurring under FISA Section 702. The annual review by the FISC is required by law -- it’s supposed to ensure that both the policies and the practices of the mass surveillance under 702 are sufficient. It failed on both counts.

The key part of this summary is this: "admittedly not being followed." Even when the government admits it's violating rights, the FISA Court says that's ok… as long as the government admits it. Candor is appreciated, but it would be better if the government stopped violating its own protocols and the rights of Americans. That's where the FISA Court should draw the line. But it doesn't. And it hasn't in years.

While the Court has expressed concerns about certain communications being swept up in 702 collections and disseminated to agencies who won't use this information solely for national security purposes, it's ok with that happening, so long as the NSA and other agencies check all the internal guideline boxes before violating the Fourth Amendment or, as is specifically discussed in this case, accessing privileged attorney-client communications.

The FISA Court says it has no problem with the NSA accessing privileged communications since it won't be directly involved in any criminal cases. But it can see how other agencies without the same foreign-facing directives might end up in the possession of privileged conversations.

That being said, the government is admonished to guard against the possibility that NSA, in compliance with its procedures, might disseminate to FBI a report based on a privileged communication described in Section 5(c) of the NSA procedures (pertaining to a criminal charge in the United States) that, had the FBI obtained it through its own collection efforts, the FBI would be required to sequester with the Court under FBI Minimization Procedures…

Swell, but the Court goes on to say this isn't something it's going to worry about.

The Court again concludes that NSA’s procedures, as a whole and applied to it, an agency with no law-enforcement mission or authority, are reasonably designed to protect the substantial privacy interests in attorney-client communications, consistent with the need to exploit those communications for legitimate foreign-intelligence purposes.

This kind of ignores the fact that prosecutions of foreign terrorists generally involve US courts. So even if the NSA isn't exactly in the law enforcement business, its collections aid and abet domestic law enforcement agencies that do directly work with prosecutors and build criminal cases.

Marcy Wheeler's summary of the FISA opinion is even more caustic. Here's the bullet point breakdown of the Court's acquiescence to the government's claims that it's really, really hard to keep the FBI from looking at stuff it's not supposed to be looking at when it accesses 702 collections.

  • It took time for them to make the changes in their systems

  • It took time to train everyone

  • Once everyone got trained they all got sent home for COVID

  • Given mandatory training, personnel “should be aware” of the requirements, even if actual practice demonstrates they’re not

  • FBI doesn’t do that many field reviews

  • Evidence of violations is not sufficient evidence to find that the program inadequately protects privacy

  • The opt-out system for FISA material — which is very similar to one governing the phone and Internet dragnet at NSA until 2011 that also failed to do its job — failed to do its job

  • The FBI has always provided national security justifications for a series of violations involving their tracking system where an Agent didn’t originally claim one

  • Bulk queries have operated like that since November 2019

In short, the FBI keeps screwing up. And it keeps telling the FISA Court it will do better. Then the FBI doesn't actually improve and the Court gives it a pass because it's trying to try. The bulwark put in place to deter the government from abusing its powers and violating rights isn't doing its job. It's deciding that national security work is too important to subject to serious judicial scrutiny.

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Filed Under: abuse, doj, fbi, fisa, fisa court, fisc, mass surveillance, nsa, section 702, surveillance, usa freedom act


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  • icon
    That Anonymous Coward (profile), 14 May 2021 @ 11:26am

    But if you don't let us behave like dictators with secret police, secret laws, secret courts you'll lose your freedoms!!!!

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 14 May 2021 @ 12:21pm

    'Just because we act like it doesn't mean we are that!'

    And they wonder why people consider them nothing more than a bunch of rubber stamps in robes...

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 14 May 2021 @ 12:56pm

    I'd say it's working exactly as intended.

    Curiously, the FISA court has never done its job as a sufficient check on government departments violating civil rights.

    It's a justification, much like the mobile-home tribunals used to suggest detainees at camp X-Ray were getting due process.

    It's so some director can tell a less-blatant lie to Congress.

    reply to this | link to this | view in chronology ]

  • identicon
    Lewis V, 14 May 2021 @ 6:28pm

    FISA Court Says FBI May Be Abusing Surveillance Powers...

    Freedom and Privacy are dead. Which is why I fully support the Peoples Republic Of Vietnam. I am now a Communist. I have given up on the idea of America. Because those that call themselves Citizens are afraid and to weak to fight as and for Americans. To fight against the oppressian calling itself the FISA Court. A secret court working only for the so called federal government. Secret from the American People. You have no right.
    We Were The People...
    If this makes you angry, GOOD. It's your fault. Welcome to the FISA Court!

    reply to this | link to this | view in chronology ]

  • icon
    Tanner Andrews (profile), 16 May 2021 @ 2:07am

    [FISA court is] deciding that national security work is too important to subject to serious judicial scrutiny

    I think the original author may be overlooking something. The FISA court is not a real court. It is established by Congress outside of the authorized (Article 3) judicial system, and has none of the earmarks of the judicial system. Consider:

    • adversary procedings
    • representation of parties by counsel
    • public trials & other procedings
    • penalties for perjury
    • published precedents
    • actual appellate review

    Under no circumstances can FISA be expected to provide ``serious judicial scrutiny''. It is, rather, the sort of scrutiny that a mother gives her joey while it is still in the pouch.

    reply to this | link to this | view in chronology ]

  • icon
    rebrad (profile), 16 May 2021 @ 5:58am

    Back To Business As Usual

    Back to business as usual. Their side won and so you can say that we got what we asked for.

    reply to this | link to this | view in chronology ]

  • icon
    jennifercookwoodsondennisfarley (profile), 17 May 2021 @ 4:47am

    Louis Freeh -- the worst thing that ever happened to LE

    I really know this subject and the mansplaining and sidestepping are preposterous. Everyone knew this was game on the DAY The Jennifer Show launched and spreading smut and torture entertainment was calculated and set up by Bloomberg and the people he paid. Get me rewrite!

    reply to this | link to this | view in chronology ]


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