This should be obvious: We can’t depend on the courts to protect our privacy.
People often say states don’t need to take action to limit warrantless surveillance because the federal courts will protect us. As one cop put it, “All these devices you speak of, some of which you grossly miscalculate capabilities, require a very intense warrant process.”
But several Foreign Intelligence Surveillance Court (FISC) opinions obtained by the Electronic Frontier Foundation (EFF) through an open records request reveal the judicial body tasked with overseeing and limiting spy agencies such as the NSA struggle to get information about government spying. And when it does uncover abuses, the court finds it difficult to rein the agencies in.
According to the EFF, in three opinions, a FISC judge “raised questions about unauthorized surveillance and potential misuse of a request he had previously granted. In those cases, the secrecy inherent in the proceedings and the government’s obfuscation of its activities made it difficult for the court to grasp the scope of the problems and to prevent them from happening again.”
The release of a declassified memo earlier this year relating to surveillance of a Trump advisor prior to the 2016 election highlighted inherent problems in the FISA process. The memo revealed that the U.S. surveillance state operates with virtually no accountability or oversight, and serves as a political tool for those in power. According to the memo, the findings it reports “represent a troubling breakdown of legal processes established to protect the American people from abuses related to the FISA process.”
The secret FISC oversees “foreign surveillance.” In order for agencies such as the NSA and FBI to spy on Americans for national intelligence purposes, they must get a warrant from the FISC. But as the memo points out, the court can only base its decisions on the information it gets from the agency requesting the warrant. Ultimately, the court depends on complete and honest information from surveillance agencies.
The FISC opinions obtained by the EFF make it clear government spy agencies don’t provide complete and honest information.
“Although many of the newly released opinions appear to be decisions approving surveillance and searches of particular individuals, several raise questions about how well equipped FISC judges are to protect individuals’ statutory and constitutional rights when the government is less than candid with the court, underscoring EFF’s concerns with the FISC’s ability to safeguard individual privacy and free expression.”
According to the EFF, an opinion written by former FISC Judge Thomas F. Hogan reveals that “even the judges approving foreign intelligence surveillance on specific targets have difficulty understanding whether the NSA is complying with its orders, much less the Constitution.”
In the opinion, Hogan orders the NSA to delete information it collected without authorization. Even after the court discovered the spy agency had overstepped a surveillance order, the