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(Reclaim The Net) — A document, an order from the Foreign Intelligence Surveillance Court (FISC) that recently became publicly available proves once again that fears that the court’s activities are resulting in mass scale privacy violations in the U.S., carried out by the FBI, are justified.
For this reason, they are urging either the scrapping of the legislation the FISC is based on – the controversial Foreign Intelligence Surveillance Act (FISA), specifically its Section 702 (added to the Act in 2008) – or introducing deep reforms of the law.
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The FISA act is supposed to allow for harvesting information for intelligence purposes from foreigners, who are not protected by the Fourth Amendment’s provision against unreasonable searches.
But critics have been warning for a long time that what Section 702 does, however, is provide a loophole that lets agencies collect communications from millions of Americans too, including directly from the likes of Google, Facebook, etc.
The main issues arising from the way FISA is used have to do with the constitutionality of the (warrantless) searches of communications, particularly in light of the Fourth Amendment provisions and protections.
As a result, the latest unsealed order shows, the court has been giving the FBI the green light for many years to go ahead with warrantless backdoor searches of online communications that include Americans, even in “routine” investigations. This is interpreted as a major violation of people’s privacy.
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Surveillance under Section 702 which allows for what is known as backdoor searches circumvents the Fourth Amendment by targeting foreigners, but then also “incidentally” scooping up communications from Americans (without a warrant).
However, the FISC itself, the newly revealed order shows, disagrees that there is a problem – and does so in a way confirms the group’s claim that Section 702 in effect represents an exception to the U.S. Constitution, based on broadly-defined national security grounds.
Namely, the court admitted that the amount of data collected in the form of private communications is “substantial,” as well as the way the FBI is getting that data – but it believes that this behavior does not impinge on the Fourth Amendment, and that the heavily criticized guarantees and protections put in place by the government to avoid “error and abuse,” are in fact adequate.
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The row over the nature of the FISC compared to other federal courts stems from those supporting it saying their status is the same, governed by the Constitution’s Article III, which renders them independent from the government, and under obligation to protect individual rights.
But, say opponents, it is now clear, and the unsealed order proves it, that the FISC actually operates very differently from other courts, even those who are under pressure to enable surveillance justified by national security, and keep the process secretive.
Shedding some light on how the entire scheme works and what makes it controversial is an opinion issued in 2019 by the U.S. Court of Appeals for the Second Circuit, in the United States v. Hasbajrami case.
Hasbajrami was investigated and eventually charged with supporting a terrorist group, and the investigation involved access to his emails, under Section 702 powers. His defense, meanwhile, was not allowed to learn how Hasbajrami was spied on. The opinion asked the government to explain why backdoor searches are not considered a Fourth Amendment violation and wanted each search of this kind be considered “a separate Fourth Amendment event.”
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But, instead of rethinking its approach, the FISC decided to ignore the insights and recommendations of the Court of Appeals. The unsealed document shows that this court for the first time addressed the Hasbajrami case only to “respectfully disagree” about the need to consider every backdoor search individually, as a Fourth Amendment issue.
The FISC stuck to its guns, claiming that existing government safeguards are sufficient, and that privacy is properly protected in this way, as it were, in bulk – or, “as a whole,” like the court put it.
The FISC’s use of backdoor searches makes a sham of the right to privacy.
A good way to start restoring trust that the Constitution is being upheld would be to introduce mandatory warrants for searching Americans’ communications and end both the FBI’s “self-policing” and the FISC’s “contorted interpretation of the Constitution” as acceptable privacy safeguards.
Reprinted with permission from Reclaim The Net.