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‘We Live in a Surveillance State’

Experts Say FISA Court Decision Proves US Breaks Rules Limiting Surveillance of Americans

By Nora Macaluso

Privacy advocates long have been wary of the U.S. government’s power to collect information on Americans using a tool designed to root out foreign terrorists.

Some told Digital Privacy News that a recently released surveillance court decision had reinforced their views that the government routinely broke already-weak rules designed to limit its surveillance of Americans.

Section 702 of the Foreign Intelligence Surveillance Act (FISA) has been around since 2008.

The law itself, passed in 1978, created the Foreign Intelligence Surveillance Court — commonly known as the FISA court — a secretive body that oversees requests for surveillance warrants by federal law enforcement and intelligence agencies.

Regarding 702, then-President George W. Bush wanted the National Security Agency (NSA) to be able to collect communications of foreigners overseas suspected of espionage or terrorism without obtaining warrants.

“After 13 years, it’s impossible to escape the conclusion that these agencies either cannot or will not comply with these rules.”

Liza Goitein, Brennan Center for Justice.

Bush’s decision came amid widespread international strife, including the aftermath of the 9/11 attacks and the Iraq War. In the process, the government has been found to collect information from Americans.

Regardless, there since has been a “mind-numbing pattern of non-compliance with government rules, punctuated by regular approval by the FISA court of this program,” said Liza Goitein, director for liberty and national security at the Brennan Center for Justice in New York.

Declassified FISA Opinion

A November FISA court opinion and order, which was declassified in April, said the government could continue its warrantless surveillance program — even as the court found that agencies had broken rules about searching for information on Americans.

Without fundamental changes, like legislation to end the practice, problems will continue, experts told Digital Privacy News. Bills to end warrantless surveillance have gained traction in recent years, they noted.

FISA is up for renewal by Congress in 2023. 

“After 13 years, it’s impossible to escape the conclusion that these agencies either cannot or will not comply with these rules,” Goitein said.

“It may just be too much to ask — but if that’s the case, there needs to be some other solution,” she said.

According to the declassified FISA court order, Americans were swept up in “limited background investigations” during 2019.

“The FISA court’s opinion shows the high standards that the government, including the FBI, is expected to meet, and rightly so,” the official said. The FBI takes those standards seriously.”

Federal Bureau of Investigation.

They included people who had requested to participate in the Federal Bureau of Investigation’s Citizens Academy program for business, religious, civic and community leaders; and people going to FBI field offices to provide tips or report that they were crime victims, according to the order. 

FBI Taking Action

The FBI told the FISA court that it since had taken steps to improve its procedures and training.

A senior FBI official told Digital Privacy News on background that the agency had established an Office of Internal Auditing to conduct internal reviews.

“The FISA court’s opinion shows the high standards that the government, including the FBI, is expected to meet, and rightly so,” the official said. The FBI takes those standards seriously.”

The FISA court noted that “the majority of these queries” took place before the FBI made changes to its systems and training.

In addition, both the court and the FBI said the COVID-19 pandemic had slowed efforts to track how well the changes were working.

“The court’s approval of the certification alone is not enough to fulfill the FBI’s obligations to the American public,” the senior FBI official told Digital Privacy News.

“The FBI is dedicated to full adherence with FISA’s requirements and to keeping the American people safe from national security threats.”

‘Setting Up’ for Abuse

Still, the rules leave the door open to abuse by federal law enforcement, said Jake Laperruque, senior counsel at the Constitution Project with the watchdog group Project on Government Oversight (POGO) in Washington.

Even if the government isn’t using the information it collects on Americans, “the collection is setting up for it,” he told Digital Privacy News.

The Brennan Center’s Goitein observed: “There’s a real pattern where the court scolds the government, the government says, ‘We’ll do better and put more oversight in place’ — and maybe the court imposes a recording requirement or two.

“Fast forward to next year, when the FISA court once again approves Section 702 surveillance as a program, recounts the non-compliances from the previous year — and goes through the same cycle.”

The intelligence community says that the results found by the FISA court were “popping up accidentally” — but “I’d like more scrutiny to confirm that’s true.”

Jake Laperruque, Project on Government Oversight.

The Brennan Center was among several groups filing briefs supporting the American Civil Liberties Union’s (ACLU) recent petition asking the Supreme Court to decide whether the public has the right to see the FISA court opinions.

In its April petition, the ACLU argues that the court’s role has been broadened to the extent that its actions “can have profound implications for Americans’ privacy, expressive and associational rights.”

Other supporters included Microsoft Corp., as well as former magistrate judges and former government officials.

Scope of FISA Queries

The FISA court’s decision said the FBI had found queries relating to criminal investigations involving health care fraud, domestic terrorism, public corruption and bribery.

The FBI said it did not use any of the information, which was discovered during oversight reviews at field offices, FISA Court Judge James Boasberg noted in the opinion.

POGO’s Laperruque told Digital Privacy News that the intelligence community contended that these results were “popping up accidentally” — but that “I’d like more scrutiny to confirm that’s true.”

And even if it is, the practice remains a concern, experts said.

“These back-end protections are too porous, and it’s too hard to enforce compliance with them,” the Brennan Center’s Goitein said.

EU Court’s Ruling

Continuing privacy violations could complicate matters, as the European Union examined ways to protect privacy in U.S.-EU data transfers, Goitein said.

The EU, at some point, will “run out of patience” with the “patchwork” of solutions companies have been using since the EU Court of Justice invalidated the Privacy Shield agreement last year covering privacy and data transfers with the U.S.

“We’re going to be in a bad situation unless we make changes on our end that will satisfy the EU that the U.S. respects the privacy of EU citizens,” she said.

“The use of surveillance technology creeps into every aspect of our lives.”

Karen Gullo, Electronic Frontier Foundation.

Under Section 702, “foreign intelligence” has a broad definition, Goitein said.

“Any foreigner overseas can be targeted, regardless of whether they’re suspected of being a threat to the U.S.,” she explained.

“Narrowing the definition to those who might be suspected to pose a threat would lower the chances of everyday Americans communicating with friends or relatives overseas being caught up” — and would help clear up issues with the EU regarding the Privacy Shield, Goitein said.

Tech Too Prevalent

Section 702 is part of a larger privacy issue for U.S. citizens, according to the Electronic Frontier Foundation.

Karen Gullo, a foundation analyst, noted how internet browsing trackers, surveillance cameras, automatic license-plate readers, drone surveillance and facial-recognition technology are more prevalent now than ever.

“We live in a surveillance state,” Gullo told Digital Privacy News, “as the use of surveillance technology creeps into every aspect of our lives.”

Nora Macaluso is a Philadelphia writer.