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FISA Courts and the NSA

The US Government is spying on you... probably.

For the last 23 years, the US government has collected vast amounts of data from the Internet and various electronic forms of communication. And that's just what we know about.

Join us as we go through the history of FISA. We'll talk about the CIA drugging college kids, secret courts, Presidents breaking the law, spying on presidential candidates, and what we should do about all of it.

We are going through the history, problems, and possible solutions to FISA courts. 

The story begins in the "Year of Intelligence": 1975—the annoying little sister of the summer of love.

In previous years, the media kept uncovering misconduct by the government, especially intelligence agencies. So, on January 27th, 1975, the Senate created the Church Committee and tasked them with investigating the overreaches of the intelligence agencies.

There were also the House's Pike and the President's Rockefeller Commissions, but we will focus on the Church Commission for time's sake.

The Church Committee's work was unparalleled. It produced a report on the intelligence community that was the most comprehensive in Congress's history and, quite likely, the most extensive ever conducted. Even the declassified portion alone numbered more than 50,000 pages, a testament to the thoroughness of their investigation.

The Commission revealed programs such as MKULTRA, where the CIA tested drugged interrogation and brainwashing tactics on US citizens (including unwitting college kids); COINTELPRO, where the FBI infiltrated and undermined various political organizations like the Communist Party, Martin Luther King's movement, and the KKK; and Family Jewels, where the CIA assassinated foreign political leaders.

However, the primary revelations related to our story are Projects MINARET and SHAMROCK. The National Security Agency, a previously unknown entity, intercepted domestic electronic communications through MINARET and communication between Americans and foreigners under SHAMROCK. They were intercepting millions of communications a year at their peak.

By today's standards, that doesn't sound like much, but this was the 1970's. They didn't even have smartphones then.

The public was understandably up in arms. People demanded accountability and that Congress stop the Executive Branch from overstepping and violating their constitutional rights.

That brings us to President Carter's signing of the Foreign Intelligence Surveillance Act into law in October 1978. For those of you following along at home, that's where we get our FISA courts.

If you believe the authors, FISA was supposed to reign in Executive Branch overreach. It was supposed to establish a system where the NSA, FBI, and other agencies had to get permission to collect communications involving Americans or American soil, even when the target of that collection was a foreign power.

The FISA Court, or the FISC, was supposed to review the facts of a case and find whether the agency had probable cause that the target of surveillance was a "foreign power" or "agent of a foreign power." 

The issue with these proceedings was twofold. First, the judges were not appointed by the President and confirmed by the Senate; the Chief Justice of the Supreme Court appointed them. Second, the requests and surveillance were secret, removing accountability.

According to executive branch policy, law enforcement was not allowed to access the information on Americans that agencies incidentally collected from this surveillance.

We don't know much about the abuse in the decades following its passage, but we do know that FISA courts accepted every warrant request from its creation until 2003. That's not a check—that's a rubber stamp.

After September 11th, the USA PATRIOT Act changed everything.

The PATRIOT Act dismantled the separation of foreign intelligence and law enforcement, known as the FISA wall. That change means that if foreign intelligence agencies like the NSA "incidentally" collect information about a US citizen, they can tell the FBI, and the FBI can then request a warrant to view that information and use it in criminal proceedings.

The PATRIOT Act also created Section 215 orders, under which the NSA could collect all business records (usually used for financial records) and non-content communication data (think location data, times, call length, and callers' identities). The only thing the NSA needed to prove to the FISA court was that the information was relevant to foreign intelligence.

Fortunately, it also added a sunset amendment to FISA, requiring parts of the law to be reauthorized in four years.

After several years of operating under this new regime, journalists at the New York Times and later Bloomberg reported that the Bush Administration and the NSA conducted bulk surveillance of American communications with foreigners without even a FISA warrant.

That's when the Bush Administration introduced the Protect America Act. This law was a stopgap that would suspend warrant requirements for their surveillance programs for 180 days while they negotiated amendments with Congress.

The Bush Administration and Congress negotiated our last significant change to FISA legislation and passed the FISA Amendments Act in 2008.

We will focus on the infamous section 702 of the FISA Amendments Act. This section made communication collection legal with authorization from the Attorney General or the Director of National Intelligence. The NSA did not have to get a warrant, only an annual approval from the court. The NSA runs PRISM under these authorizations.

In 2013, Edward Snowden told the world how the NSA was using the first part of Section 702.

An NSA analyst will create a surveillance target and send it to the FBI. The target can be as large a group of people or criteria as desired. Then, the FBI will go to the relevant technology company with an order for that information and any possible assistance needed. For instance, Microsoft puts data aside to go to the FBI before encryption. Then, the FBI gives that data to the NSA and sometimes the CIA while keeping it for itself occasionally.

At a minimum, PRISM collects data from Microsoft, Yahoo, Google, Facebook, YouTube, AOL, and Apple. And these are just the companies we know for sure. 

In 2016, the NSA spied on the Trump campaign with a FISA warrant under the justification that Carter Page, a person who worked for the Trump campaign, was a foreign agent. Again, this was legal under the FISA Amendment Act.

After these revelations, Congress authorized Section 702 for six more years in 2018, and last week, President Biden signed another two-year reauthorization into law.

So, what are the underlying problems with FISA?

When conservatives talk about the economy, we have it easy. Free markets are morally good and effective. We can argue from both sides and win.

That is not the case with civil liberties. If we had a massive surveillance state that required every citizen to have a body cam that immediately transmitted to the state, then we would catch nearly every crime. And if we had the death penalty without a trial for every infraction, people would stop breaking the law.

The reason the US doesn't do this is that it is morally wrong, and we have a Constitution that prevents us from doing so.

The Constitution doesn't address the privacy rights of foreign citizens. The Constitution primarily delegates foreign policy to the executive branch without any checks apart from the power of the purse.

FISA aims to address what happens when the Wild West of foreign policy meets the Constitutional protections of domestic policy.

Right now, the NSA and FBI are collecting American citizen's data and handing it to law enforcement.

The Fourth Amendment says, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized."

In other words, for the government to search or seize a person's self, house, papers, or effects, they must get a warrant supported by sworn probable cause that specifies what the government will search and what it will seize.

Incidental collection through Section 702 programs violates the Fourth Amendment.

Finally, some good news! How do we solve this?

First, we must roll back FISA to its pre-2001 form. There are no bulk collection programs, and the NSA needs warrants.

Second, FISA court judges must be appointed by the President and approved by the Senate. Article III courts work. Let's use them.

Third, Congress should codify the FISA wall into law. You should not interact with law enforcement if you work in foreign surveillance.

Finally, the FISA court needs to give all requests to the intelligence committees in Congress. The executive branch needs as much oversight as possible.

What do you think? Do I have it right or wrong? Let me know in the comments.

If I made any mistakes, let me know that, too.

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