Recently declassified court documents confirmed all of our worst suspicions about NSA spying.

Many people view NSA spying as relatively harmless. They argue it doesn’t violate the Fourth Amendment because the agency doesn’t even look at most of the information it collects.

This is a fallacious argument. Virtually nobody would sit by and let federal agents come into their home, make photocopies of all their personal papers and then store them away with the promise of “we won’t look at them without a warrant.” Sweeping up and storing electronic data is no different.

Even if you buy these silly legal gymnastics, by storing phone calls, emails, location information, and web searches belonging to millions of Americans, the NSA facilitates unconstitutional, warrantless surveillance.

And a recently-declassified 138-page opinion by U.S. District Court Judge James E. Boasberg confirmed just that. It revealed that the FBI regularly accessed millions of Americans’ data that was unconstitutionally gathered and stored by the federal spy agency. The government is accessing this information. It is not obtaining warrants. And this does violate the Fourth Amendment.

ACLU staff attorney Patrick Toomey told The Intercept that the FBI used the information for “fishing expeditions.”

“These opinions reveal devastating problems with the FBI’s backdoor searches, which often resembled fishing expeditions through Americans’ personal emails and online messages. But the court did not go nearly far enough to fix those abuses. The Constitution requires FBI agents to get a warrant before they go combing through our sensitive communications.”

Documents leaked by Edward Snowden revealed the existence of warrantless dragnet surveillance programs run by the NSA. The court ruling centered around spying “authorized” under Sec. 702 of the Foreign Service Intelligence Act (FISA). Under this provision, the government can collect data on Americans who are communicating with non-U.S. citizens without a warrant.

As Andrew Napolitano explained, “the FISA-created process permits a secret court in Washington to issue general warrants based on the government’s need to gather intelligence about national security from foreigners among us. It pretends that the standard is probable cause of foreign agency, but this has now morphed into the issuance of general warrants whenever the government wants them.”

A typical FISA warrant authorizes government surveillance on all landlines, mobile devices and desktop computers in a given area. While the process was created to monitor foreign agents, it sweeps up reams of data belonging to Americans.

The Electronic Frontier Foundation explained the scope of FISA surveillance on Americans.

Section 702 allows the government to collect and store the communications of foreign intelligence targets outside of the U.S if a significant purpose is to collect “foreign intelligence” information.  Although the law contains some protections—for example, a prohibition on knowingly collecting communications between two U.S. citizens on U.S. soil—we have learned that the program actually does sweep up billions of communications involving people not explicitly targeted, including Americans. For example, a 2014 report by the Washington Post that reviewed of a “large cache of intercepted conversations” provided by Edward Snowden revealed that 9 out of 10 account holders “were not the intended surveillance targets but were caught in a net the agency had cast for somebody else.”

Congress renewed Sec 702 in 2018 with some minor reforms. But before approving a six-year extension, the House voted to kill an amendment that would have more significantly overhauled the surveillance program and addressed some privacy concerns. Provisions in the amendment would have required agents to get warrants in most cases before hunting for and reading Americans’ emails and other messages that get swept up under the program.

Then Congress had another opportunity to significantly rein in surveillance under Sec. 702 earlier this summer, but it voted down an amendment to an appropriations bill that would have effectively prohibited the warrantless collection of data from Americans.

According to the recently declassified court documents, the FBI was the agency most often accessing NSA data about “U.S. persons,” defined as any U.S. citizen or foreign national legally in the United States. The Intercept detailed the extent of the FBI’s data-mining.

Queries of this data are known as “backdoor searches.” In 2017, the FBI ran approximately 3.1 million searches related to U.S. persons, compared to 7,500 combined searches by the CIA and NSA during the same year. Many of the FBI’s searches were not legally justified because they did not involve a predicated criminal investigation or other proper justification for the search, as required by law, according to Boasberg’s FISA court.

The FBI often accesses NSA data using an investigative tool known as an “assessment.” The power was created after 9/11 and allows the agency to investigate anyone on evidence as flimsy as an anonymous tip. As The Intercept explained, “Because assessments are de facto national security inquiries, the FBI has viewed this as authority to search mass surveillance data for Americans’ communications.”

The court ruling also revealed evidence of “parallel construction.” Using this secretive process, police build cases on illegally obtained, warrantless data collected by the NSA and other federal agencies without anybody ever knowing. Once investigators have built a secret case on warrantless data, they obtain warrants bases on the illegally gathered information and create a parallel case with the illusion of constitutional legitimacy.

Former NSA technical director William Binney called parallel construction “the most threatening situation to our constitutional republic since the Civil War.”

As The Intercept explained, “Boasberg noted an example that fits this pattern as an inappropriate use of FISA data. On November 11, 2017, the FBI conducted a search of mass surveillance data on “a potential recipient of a FISA order.” In other words, the FBI was able to mine mass surveillance data to find out what evidence agents would discover if they went ahead and requested the FISA order.”

Congress will never rein in warrantless surveillance. It has had ample opportunity. In fact, Congress has had over 40 years to address these privacy issues. In 1975, Sen. Frank Church warned us about the surveillance state, saying it created the potential for ‘total tyranny.” That was before widespread public access to the Internet, before cellphones and before the proliferation of email.

Today, the technological capacity of the NSA and other federal agencies exceeds anything Church imagined. And yet 40 years later, Congress hasn’t done anything to rein in the surveillance. It never will. That’s why it’s up to states to take action. For more information on how, click HERE.

Mike Maharrey

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