In light of the mind blowing revelations of government privacy intrusion in past weeks, it is worth considering how these breaches of privacy were allowed to occur. Obviously, the Fourth Amendment is the paramount law in situations such as this and states that “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
However, the two main sources of authority that seem to be at the root of the government’s newfound intrusive technology authority begin with The Patriot Act and the 1978 Foreign Intelligence Surveillance Act (FISA). Part 1, presented here, will focus on FISA.
FISA was passed in response to intelligence agency overreach over the decades. It established rules governing the government when it desires to conduct electronic surveillance outside the United States. FISA set up a special federal court where secret FISA search warrants may be submitted in order to keep national investigations classified. The government could make a “classified application to a special court, identifying or describing the target[,] demonstrate probable cause that the target is a foreign power or an agent thereof, and that the facilities to be monitored will be used by the target.”
This seems straightforward enough. Intelligence agencies can apply for a search warrant to tap phone lines of an enemy of the state after proving by probable cause that the line will be used by that enemy. Or is it an enemy? The language seems to suggest that the party at issue needs only to be a person of interest. However, in 2008, Congress added “section 702 to the statute, allowing the government to use electronic surveillance to collect foreign intelligence on non-U.S. persons it reasonably believes are abroad, without a court order for each target.” Although a U.S. citizen may not intentionally be targeted, the lack of any practical oversight raises concerns. Do government agencies do what they ought to when no one is looking?
An unclassified government document used as a teaching tool states that: An acquisition authorized under section 702:
- May not intentionally target any person known at the time of acquisition to be located in the U.S.
- May not intentionally target a person reasonably believed to be located outside the United States, if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the U.S.
- May not intentionally target an USPER reasonably believed to be located outside the U.S.
- May not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the U.S.
- Shall be conducted in a manner consistent with the Fourth Amendment
Again, this sounds reasonable enough. But the true question is of course whether the government is following these procedures. More telling is of course recent statistics. The Foreign Intelligence Surveillance Court did not reject a single warrant application from 1979 to 2002. Since President Obama has taken office, it has denied two warrants and granted 8,600. Absolute power corrupts.
The problem with a secret court is that there is little oversight. That is not to say that there aren’t agencies or Congressmen with the power of oversight, it is simply to say that the secret judge doesn’t seem to have anyone in front or above him except for the unilateral muscular government agency, and that is clearly not enough.
As far as section 702, it sounds like a wink-and-a-nod provision that says, Americans can’t intentionally be surveilled, but should they be . . . it will probably be allowed to slide, since it was in good faith.
We need to tighten these statutes. Privacy and security can co-exist.