FOREIGN INTELLIGENCE SURVEILLANCE – What you need to know

by Mustang

The Foreign Intelligence Surveillance Act (1978) (FISA) was the result of congressional investigations into federal surveillance activities conducted in the name of national security.

Through FISA, Congress sought to provide judicial and congressional oversight of foreign intelligence surveillance activities while maintaining the secrecy necessary to monitor national security threats effectively.

FISA establishes procedures for physical and electronic surveillance and collection of foreign intelligence information.  Initially, the Act addressed only electronic surveillance but has since been significantly amended to address the use of pen registers, trap and trace devices, physical searches, and business records.

How has this been working?

Jim Jordan Unleashes on the FBI and Intelligence Community

FISA also established the United States Foreign Intelligence Surveillance Court (FISC), a special federal court that holds nonpublic sessions to consider issuing search warrants under FISA.  Proceedings before the FISC are ex parte, meaning the government is the only party present.  Note: While this may sound odd, it allows the FBI and other federal law enforcement agencies to give false testimony (without fear of challenge) to obtain duplicitous search and arrest warrants.

FISA, as amended, establishes procedures for authorizing electronic surveillance, using pen registers and trap-and-trace devices, physical searches, and business records to gather foreign intelligence.

Summary

Subchapter I of FISA (Electronic Surveillance) established procedures for conducting foreign intelligence surveillance.  The Department of Justice (DOJ) (an oxymoron) must apply to the FISC to obtain a warrant authorizing electronic surveillance of foreign agents.  In some instances, FISA requires heightened requirements for targets that are U.S. persons (U.S. citizens, permanent resident aliens, and U.S. corporations.

• Unlike domestic criminal surveillance warrants issued under the Wiretap Act, agents need to demonstrate probable cause to believe that the “target of the surveillance is a foreign power or agent of a foreign power,” that “a significant purpose” of the surveillance is to obtain “foreign intelligence information.” That appropriate “minimization procedures” are in place.
• Agents do not need to demonstrate that committing a crime is imminent.
• For purposes of FISA, agents of foreign powers include agents of foreign political organizations and groups engaged in international terrorism and agents of foreign nations.

 Note: The preceding offers wide latitude to law enforcement officials, including the corrupt ones.

When the government has accidentally intercepted communications “under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States,” the government is required to destroy those records, “unless the Attorney General determines that the contents indicate a threat of death or serious bodily harm to any person.”

The President may authorize electronic surveillance to acquire foreign intelligence information for periods of up to one year without a FISC court order where the Attorney General certifies that there is “no substantial likelihood that the surveillance will acquire the contents of any communication to which a U.S. person is a party,” provided the surveillance is directed solely at communications among or between foreign powers, or “the acquisition of technical intelligence … from property or premises under the open and exclusive control of a foreign power.”

Subchapter II of FISA establishes procedures for physically searching “premises or property … owned, used, possessed by, or … in transit to or from a foreign power or an agent of a foreign power.” These procedures are substantially similar to those established for electronic foreign intelligence surveillance.

Subchapter III of FISA establishes procedures for using pen registers and trap-and-trace devices to conduct telephone or e-mail surveillance.  A pen register is a device or process that traces outgoing signals from a specific phone or computer to their destination; it is often used by law enforcement agencies.

Subchapter IV of FISA establishes procedures for obtaining a FISC order for third-party production of business records to acquire foreign intelligence information.

Amendments

The Intelligence Authorization Act (1995), the USA Patriot Act (2001), the USA Patriot Act Reauthorization (2006), the FISA Amendments Act (2008), and the FISA Sunsets Extension Act (2011) significantly amended FISA.  These acts eased restrictions on foreign intelligence gathering within the U.S. and afforded the U.S. intelligence community greater access to information unearthed during a criminal investigation.

Civil Rights and Civil Liberties Implications

FISA prohibits the surveillance of or production of business records regarding a U.S. person based solely on First Amendment activities.  Section 1806 guides the sharing of foreign intelligence information among federal agencies (and with State and local partners).

Section 1825 provides similar guidance regarding using and disclosing foreign intelligence gathered via a physical search.  Section 1845 offers identical guidance for using and disclosing information acquired through pen registers and trap and trace devices gathered under Subchapter III.  Note: “Agents of foreign powers” may include U.S. citizens and permanent residents suspected of espionage and violating U.S. law on territory under United States control.

The Fight Continues

The question is whether Congress should reauthorize the regularly abused Act.  Republicans, who suffered from FISA abuses during Donald J. Trump’s presidency, now propose to extend Section 702 for another five years with some reform.  The Judiciary Committee opposed this plan, which was eventually pulled from consideration.

But on April 10, all House members were briefed on FISA by officials from National Intelligence, CIA, NSA, DOJ, FBI, the Pentagon, and other serial abusers.  Noticeably, no one from the courts will offer a briefing to lawmakers.  This means that we, the people, will have to be subjected to more abuses by federal law enforcement before a judicial review can reign in a corrupt government.  The proposed changes to Section 702 can be seen here.

This is the sort of thing that happens when people elect lawyers to serve in the House of Representatives.  Nowhere does FISA protect anyone from political witchcraft, as we observed during Donald J. Trump’s presidency.  Nowhere does it require judges to ask penetrating questions before granting federal warrants, and nowhere does it impose penalties when federal law enforcement officers lie under oath to obtain warrants against citizens of the United States — when shown to be motivated for political or other illegal purposes.

Moreover, sections about national security during pandemics have been completely ignored, with the permission of the Congress of the United States.  In the legislature, silence is golden.

Data collection on Americans has become so expansive over the past thirty years that the federal government alone could not manage it, so contracts have been let.  Now, thirty years later, data collection is a massively lucrative business.  Law enforcement agencies benefit from this, as they can circumvent the Fourth Amendment outside circumstances requiring the most intrusive surveillance techniques.  For corporate data brokers, getting money from government agencies is easy.  Citizens of the United States are getting justice from the federal government, not so much.

How should this end, do you think?  Write to your Congress Critter.