The Electronic Frontier Foundation has acquired formerly classified court orders from the controversial Foreign Intelligence Surveillance Court (FISC) which detail how the court violates the privacy of innocent Americans caught in the crossfire of federal surveillance.
The documents are the result of Freedom of Information Act requests filed by the EFF as part of an effort to shine light on the inner workings of the secret court.
These documents raise larger questions about whether the government can meaningfully protect people’s privacy and free expression rights under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which permits officials to engage in warrantless mass surveillance with far less court oversight than is required under the “traditional” FISA warrant process.
Although many of the 13 opinions are heavily redacted — and the government withheld another 26 in full — the readable portions show several instances of the court blocking government efforts to expand its surveillance or ordering the destruction of information obtained improperly as a result of its spying.
The documents provided to the EFF detail several cases where conversations of people not targeted by federal authorities were swept up in the course of surveillance investigations. Specifically, the documents show the National Security Agency (NSA) and the Federal Bureau of Investigations (FBI) spying on innocent people and attempting to conceal the practice. A 40-page court opinion from 2004 or 2005 details how FISC Judge Harold Baker declined a proposal from FBI to save these conversations, often known as incidental collection. “The opinion demonstrates both the risks of over-collection as part of targeted surveillance as well as the benefits of engaged, detailed court oversight,” The EFF notes.
Under the standards set by section 702 of the Foreign Intelligence Surveillance Act (FISA), the FISC approves digital surveillance for federal agencies who are supposed to follow certain procedures to prevent the accidental interception of innocent people’s communications. The new documents highlight how the FBI used incidental collection to capture the communications of a number of innocent people. The FBI attempted to argue to Judge Baker that the practice has “minimal, if any” impact on the Fourth Amendment protections against invasions of privacy. The FISC apparently actually did their job by attempting to prevent this practice from continuing and becoming normalized. The surveillance court appeared to admonish the FBI for expanding the use of incidental communications, rather than deleting the communications of individuals unrelated to ongoing investigations.
The EFF notes that the court “faulted the FBI for failing to account ‘the possibility that overzealous or ill-intentioned personnel might be inclined to misuse information, if given the opportunity.’ As the court put it, ‘the advantage of minimization at the acquisition stage is clear. Information that is never acquired in the first place cannot be misused.’”
The surveillance court was originally created under the the Foreign Intelligence Surveillance Act of 1978 (FISA) in response to reports produced by the 1975 Church Committee. The Senate panel was tasked with investigating the foreign and domestic surveillance operations by the Central Intelligence Agency (CIA), NSA, and FBI during the 1970s. The Church Committee also released detailed reports on the governments Counter Intelligence Programs (COINTELPRO) that were used against activists and influential voices of opposition during the 1950s and ’60s.
These newly released documents offer the latest example of how the secret surveillance court is ripe for abuse. Although this example shows one judge working to maintain some level of accountability, the vast majority of the documents were redacted so there is no way to see if this case is the exception or the norm. Further, this court order is thirteen to fourteen years old. Take a moment to consider the massive growth of the U.S. surveillance state and the FISC specifically. There is simply no way to trust that this single judges effort to hold the federal government accountable represent the status quo.
Much of the issues surrounding the secret surveillance court related to Section 702 of the FISA bill. According the EFF, Section 702 “allows the NSA to collect emails, browser history and chat logs of Americans. Section 702 also allows other agencies, like the FBI, to search through that data without a warrant. Those searches are called ‘backdoor searches.’” As revealed by whistle blower Edward Snowden in 2013, Section 702 also authorizes two Internet surveillance programs known as PRISM and Upstream. PRISM gathers messaging data sent via Google, Facebook, Microsoft, Apple, and other tech companies, while Upstream taps into the so-called backbone of the Internet to gather data on targets. The NSA began collecting Americans’ international phone calls and emails without a warrant immediately after the 9/11 attacks as part of the Stellar Wind program. Once the public became aware of the program in 2008, Congress codified the program into law by passing section 702 of FISA.
The FISA Court is a glaring example of The Deep State. A secret court run by secret judges who interpret the law behind closed doors and who refuse to publicly release their findings or their interpretation.