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< | Reform as Farce: FISA Courts and Surveillance are Here to Stay | >
> | FISA Revisited | | | -- By JaylenBaxter - 01 Mar 2024 | |
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< | The Federal Intelligence Surveillance Act (FISA) is an integral part of intelligence authority that allows the US government to collect the communications of foreign individuals using US communication services; this includes emails, phone calls, websites visited, text messages, etc. Though specifically targeting non-US citizens and minimizing contact with American citizens, FISA section 702 authorizes the collection of American data. | | | | |
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< | At the end of 2023, FISA needed to be renewed, however, Congress could not agree on the path to the reauthorization of section 702: a complete refusal to renew, creation of a probable cause bar for citizens, or an expansion of 702. Recently, the executive branch has chimed in, beginning litigation to renew Section 702 through 2025. Surveillance has become a normal aspect of American life post 9-11 with the signing of congressional bills that focused on foreign surveillance to promote comfort in our nation. Congress now has a real chance to reform the existence and operation of FISA courts and American surveillance through section 702. | | | | |
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< | If a foreign individual is under surveillance by the American government and the foreign person comes into contact with an American Citizen, the citizen's information is collected. On a national scale, this means that thousands of Americans have their information stored by the FBI on “accident,” or as an unintended consequence of foreign surveillance. The dystopian nature of surveillance lies within our response, or rather lack thereof. Our exchange of truth for comfort becomes more akin to A Brave New World each passing day, where every citizen fears the threat of a real or cyber attack on our soil, and for that comfort, we now pay with our freedom. For the smaller amount of Americans who are vigilant against FISA’s encroachment on the 4th Amendment, the next question is obvious: Why won't Congress save us? | >
> | " Preserving the ability to listen to the world is indeed the only priority" | | | | |
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< | Reform 1: The House Permanent Select Committee on Intelligence (HPSCI) has its bill, the FISA Reform and Reauthorization Act (H.R. 6611) | >
> | Indeed, the top priority of the US national security regime is to listen to the world. Only incidentally do national security interests promote the security of this nation, rather it is a catch-all term that provides just enough vagueness to cover plainly unconstitutional acts. In April, Congress had to decide between reforms, and instead of reforming the FISA spy program, it broadened the scope of the program with worrying implications for the privacy rights of all Americans. Now it has become a race for the FBI to prove the legality of their increased power. | | | | |
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< | Though this bill is titled as reform, it plunges the US further into a surveillance state. These so-called reforms narrow the type of queries the FBI can use and prohibit “evidence-of-a-crime only” queries. The reasoning here is that under this query intelligence can look for crimes that are unrelated to national security. However, in a growing world where national security is becoming synonymous with comfort, what becomes national security becomes broader. Nonetheless, evidence of a crime query has an oversight and probable cause, making it a rarely used query by the FBI. From a reporting period from Dec 1, 2020, to November 2021, 2,964,643 U.S citizen queries and 13 evidence of a crime only queries. Thus, this seeming reform removes a small part of the FBI's warrantless search into citizens’ houses, papers, and effects, and may potentially do more harm than good. Removing this query removes oversight, (pg 101). When we consider the type of citizens the queries are about, the same report noted that the “FBI conducted thousands of searches concerning people who were arrested in connection with social advocacy and protests around the country. | >
> | In response to the expansion, the FBI urged its members to ramp up inquiries into US persons to prove compliance. FBI Deputy Director Paul Abbate emailed his employees on April 20 stating: | | | | |
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< | An additional amendment this bill makes is the expansion of the definition of electronic communication provider to include their “custodians.” This broadened definition also broadens the number of service providers that the government can force to reveal their data. Business landlords, shared workspaces, public wifi, and centers are a few of the locations that could be centers of surveillance with the passage of this bill. | >
> | “To continue to demonstrate why tools like this are essential to our mission, we need to use them, while also holding ourselves accountable for doing so properly and in compliance with legal requirements…I urge everyone to continue to look for ways to appropriately use US person queries to advance the mission, with the added confidence that this new pre-approval requirement will help ensure that those queries are fully compliant with the law.” | | | | |
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< | Reform 2: The House Judiciary Committee’s Protect Liberty and End Warrantless Surveillance Act (H.R. 6570) | >
> | The quiet part was said brazenly out loud–The FBI intends to surveil more Americans. What is unique this time around is that the surveillance is born out of a push to prove legality rather than the pursuit of a governmental goal (i.e. foreign surveillance). The purpose is not national security, but rather ompliance because having the ability to listen to the world must be legal and preserved. | | | | |
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< | This bill, the more appropriately titled of the two, requires that the government obtain a warrant for all queries. If the Intelligence Community wanted to obtain the communications of Americans, they would need to produce a probable-cause warrant. This would understandably frustrate the Intelligence community as obtaining a warrant for each individual is a costly and inefficient way to surveil. Though not removing section 702, this reform also falls short of actual reform that stops warrantless searches. This amendment fails to account for American communications that are still being collected ‘incidentally,’ such as through upstream and downstream collection of our data. Intelligence agencies continue to capture our data through foreign investigation and have the ability to collect data from Google, Facebook, and Yahoo, or even law enforcement’s ability to purchase our data. | | | | |
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< | The veil of Reform: expending energy on the wrong fight | >
> | Redefining the Subject and Self-Preservation | | | | |
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< | Of the few citizens who are actively trying to end warrantless surveillance, these reforms are built to expend energy. Guised to solve the issue of mass surveillance, especially when named to end warrantless searches, the bill only bolsters surveillance, or at best, deals with the issue on a surface level. The American people must reckon with the lack of options when it comes to surveillance, as Congress has revealed that surveillance is here to stay. | >
> | The comfortability in which intelligence houses and/or members of Congress can deem who is “communicating” with a terrorist is akin to vague definitions of the ‘other’ similar to the Salem Witch Trials, Red Scare, and the War on Drugs. Essentially, the data collection of terrorists is so broadly defined that the new status quo automatically assumes that if a US person was searched, it was because they were communicating with terrorists. Such a sly assumption destroys any distinction between terrorist and non-terrorist. The array of individuals who can now be classified under the new Section 702 extends far beyond the black-and-white criteria of American and Non-American (where privacy rights are distributed unequally), but rather the newly defined Section 702 Distinguishes Target (Terrorist) and Non-Target. However, unlike previous iterations, intelligence houses can collect the information of both because of the vague distinction. | | | | |
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I think this is an accurate assessment of the 702 renewal situation, which ended as you expected it would. But the next draft can be made can be made stronger because it doesn't need the background and there's no uncertainty about outcome. Preserving the ability to listen to the world is indeed the only priority, and the procedural efforts to keep the cops from ruining everything for the spooks could never be allowed to impose actual constitutional restraints on the national security listening regime as applied to non-US persons, wherever they, their communications, or their counterparties are located. That part of the next draft is straightforward. What comes next?
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> | Congress failed to protect the American people, and in response, it chose to protect itself. In the new 702, Congress requires the FBI to notify the member of Congress if a query involves their name, which is more protection than they would afford their fellow Americans. The double standard reveals that Congress is undoubtedly aware of the harm of US persons being in a query search, but has chosen their privacy interest over everyone else.
What Comes Next?
The most obvious answer is to wait until the renewal debate of April 2026 to begin advocating for similar reforms seen in April of this year including mandated FISA-court review of queries involving US persons, narrowing the type of queries the FBI can use, prohibiting certain queries, limiting what a service provider can offer to the government, etc.
Congress was evenly split in votes when adding the amendment to require warrants when the FBI searches the information of a US person, thus it will most likely be adopted upon reconsideration in April 2026. However, the real reform begins with abolishing the FISA court itself. No court should be designed outside of ethics, regulation, and public accountability, but the FISA court does and continues to do so. We must remember that among the mass of unwarranted surveillance, it is the FISA court that holds the FBI accountable with annual reports, however, their only backstop against corruption is self-regulation. No law, rule, or procedure is allowed to exist in the shadows, and neither should FISC. Undoubtedly, this would be a difficult amendment to pass as it would require the FISA system to be reworked entirely but it would not be impossible.
Instead of the FISA court, two additional federal courts should be created. The first, acting as a first stop for the government, would be similar to FISA Courts in purpose but would be a public court. This court would be used only for the express purpose of obtaining warrants when an FBI query involves a US person. The US person would need to be identified for due process purposes and the US person should have ample opportunity to defend themself against the unwarranted search, proving that it would be a violation. Though it would be a heavy burden on the defendant and highly factual, it would still provide transparency into who the FBI has targeted and why it involves the information of a US person. The second court would act as an appellate court to the first, in which an individual or the government would appeal the first court’s decision. Here, I believe is where the court can begin to classify information or use classified information in their proceedings and shield the opinion from the public.
All the while, congress held a “FISA Fest” and clinked glasses and mingled on the Wednesday after the renewal of Section 702. | | |
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