The Foreign Intelligence Surveillance Act of 1978 (FISA) “sets out procedures for physical and electronic surveillance and collection of foreign intelligence information.” FISA also established the U.S. Foreign Intelligence Surveillance Court (FISC), a special U.S. federal court that considers issuing search warrants under FISA. Proceedings before the FISC are ex parte, meaning the government is the only party present.

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After the September 11th terrorist attacks, the U.S. Congress passed sweeping legislation designed to enhance American counterterrorism efforts. This included the USA PATRIOT Act, which significantly increased the federal government’s authority to gather, analyze and investigate private information related to U.S. citizens. 

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Section 215 of the PATRIOT Act amended Sections 501-503 of FISA and allowed the collection of “any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the U.S. Constitution.” 

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After Edward Snowden’s massive stolen document dump (you can read more about this in the Whistleblowers section of this book), it was discovered that Section 215 had been used as a rationale to collect the telephone records of Americans in bulk, which didn’t go down well with We the People. 

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So, in 2015 Congress passed the USA Freedom Act to supposedly end the National Security Agency (NSA)’s bulk collection program. This didn’t so-much end the bulk surveillance of Americans but replaced it with a narrower authority, requiring that a “specific selection term” must be used to collect metadata.

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Meanwhile, in 2008 another piece of legislation passed. Section 702 of FISA removed the requirement that the U.S. government had to obtain a warrant from the FISC when seeking to wiretap communications between a foreign target and an American that was communicating from inside the United States. Section 702 also significantly broadened the parameters of targeting foreign targets, which included those not suspected of nefarious behavior.

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Problem here is that, although the target must be a non-American located overseas, Section 702 surveillance inevitably picks up the other side of the conversations as well – which is known as “incidental collection.” As a result, Section 702 surveillance also hears conversations from Americans who are stateside.

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Although Section 702 requires intelligence agencies to “minimize the retention and prohibit the dissemination of non-publicly available information concerning unconsenting United States persons,” this doesn’t always happen, as you can imagine. For example, agencies are allowed to search through Section 702 data – without a warrant – for information to use against Americans in ordinary criminal cases.

 

That’s outrageous.  And unconstitutional.

 

Law enforcement agencies should be required to obtain warrants before being able to search through the NSA’s records database, and a warrant should be obtained every time a U.S. citizen is targeted and monitored, even if the U.S. citizen is deemed an “associate” of a targeted foreigner.