PRG – Overview of Legal Implications of NSA Spying

Post-911 laws and FISA court developments. PRG Discussion on 9/18/13

FISA Act governs gathering of data about foreign actors, set up in wake of Watergate.  Created framework for data collection and court review by FISA courts.   With the Patriot Act, push to expand powers and reach of a number of laws.  Patriot Act expanded FBI ability to send out administrative letters to collect information without court order and created roving wiretaps.  Legalized “sneak and peek” searches without immediate notification to target.

Section 215 of the Patriot Act lowered the threshhold for search to any situation where collecting foreign intelligence is “a purpose” rather than just the only purpose.  16 provisions were set to sunset in 2005, but 14 were made permanent and two were reextended to 2015.

Other key event was Bush Administration setting up wideranging wiretapping program and Section 702 of FISA creating official rules for targeting persons outside the United States.  These will be coming up for renewal in coming years.

FISA court created under 1978 Act; 11 district court judges appointed by Chief Justice of the US Supreme Court.  Most opinions have been secret. Following expansion of requests to become more programmatic, FISA has been issuing long but secret opinions creating precedents for operation of the FISA court.    Existing Supreme Court precedent has been declared to make metadata given to a third party not subject to Constitutional protection.   34,000 surveillance requests since FISA created; 11 have been rejected.

Not an adversarial proceeding with no actor representing person or groups whose data is to be accessed.  In many cases, information collected via FISA is then tracked down through other sources by FBI to “cover the tracks” so that the fact that FISA was used does not have to be presented in later public court proceedings.

Anyone on US soil is not covered by FISA but non-citizens not on US soil have no protections under the law.

Question raised about whether revelations about NSA were shocking because they revealed the extent of surveillance allowed by the law or whether there are real violations of US law.  A related question is whether the surveillance violates international law.

Section 215 now allows collection of “any tangible thing”, which has been interpreting to mean whole telecommunications databases.  Restriction on collection if search is “solely based on First Amendment activities” which is not very restrictive if FBI can find any other reason to justify such a search.   Old law restricted access to specific information about a suspect person has become access to any data “relevant” to an authorized investigation. Minimization procedures are limited by fact that data retention allowed to “understand foreign intelligence” or related to a crime.

Section 702 allows AG and Director of National Intelligence can set up surveillance program with no court overview once it’s established. Collection of data on US persons is allows as long as it is not intentionally targeting US persons. Statute says government does not have to specify who they want to target or where they want to look in any specific surveillance operation approved by a FISA proceeding.