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 NSA claimed it had not illegally collected the information. It only admitted to violating “minimization procedures” – restrictions on the use of material, not its collection. Nevertheless, the court held the surveillance was unauthorized. According to the EFF, the opinion also noted that the government’s failure to meet the FISA law’s requirements inhibited the court’s ability to do its job, writing that “the Court was deprived of an adequate understanding of the facts known to the NSA and, even if the government were correct that acquisition [redacted] was authorized, a clear and express record of that authorization is lacking.”
The judge also makes it clear this is not an isolated case, but pretty much par for the course.
“Moreover, the government’s failures in this case are not isolated ones. The government has exhibited a chronic tendency to misdescribe the actual scope of NSA acquisitions in its submissions to this Court. These inaccuracies have previously contributed to unauthorized electronic surveillance and other forms of statutory and constitutional deficiency.” [Emphasis added]
Other opinions obtained by the EFF reveal that government spies knowingly collected information on individuals the court never approved and that the agency routinely failed to declare the actual scope of its surveillance.
This confirms the conclusion of the February FISA memo – the NSA often acts with virtually no oversight or accountability. According to the memo, “material and relevant information was omitted” in the original FISC application to surveil an American citizen, and in the subsequent applications for renewal.
At the time, some pundits dismissed the memo as a partisan attempt to protect Trump. But these actual FISC opinions obtained by the EFF confirm ongoing and deliberate actions by government spy agencies to withhold information from the court and to unilaterally expand its own surveillance authority.
Simply put, the FISC depends on government transparency and the government keeps secrets.
Given this reality, it should come as no surprise that as of 2016, the FISC had only denied 51 warrant requests – ever – since its establishment in 1979. Thirty-four of those denials came in a single year – 2016. To put that into perspective, the FISC approved 39,195 requests without modification. That means the court approves 99.998% of the warrant requests. It basically serves a rubber stamp for the FBI, the DOJ and the NSA.
We can’t rely on Congress to rein in the surveillance state. It reauthorized Sec. 702 of the FISA Amendments Act even though members of the House Intelligence Committee knew about the abuses chronicled in the memo. And we can’t count on the courts to hold keep agencies like the NSA in check either. The opinions obtained by the EFF make that abundantly clear.
This underscores the importance of states taking action to limit warrantless surveillance.
Michigan provided a blueprint states can use to take on the massive, overreaching federal surveillance state. A new law went into effect in Michigan in June 2018 barring “material support or resources” for all warrantless federal surveillance programs. By denying the NSA and other federal spy agencies personnel and resources, we can at least hinder the collection and use of warrantless data. States with NSA facilities could even potentially shut them down by denying them state resources such as electricity and water. If enough states take action, we can box the federal spies in and shut them down.
Don’t count on the federal courts. Take action in your own backyard.