Privacy SOS

FISA and beyond – away with all warrants!

Associated Press reported that the Justice Department submitted 1,745 requests to a “secret court” in order to wiretap or conduct physical searches in “terrorism and espionage investigations” in 2011.

Secret court? Well, it’s no longer very secret. Thanks to the surfacing of the Bush Administration’s “warrantless wiretapping” program, the Foreign Intelligence Surveillance Court (FISC) has been forced out of the shadows.  

Many Americans learned for the first time that such a court not only existed, but that it issued less-than-full-fledged warrants to allow federal agents to conduct electronic surveillance and physical searches on “US persons” suspected of involved in international espionage or terrorism.  

The FISC – composed originally of seven (expanded to 11 by the PATRIOT Act) district court judges appointed by the Chief Justice of the Supreme Court – was established by the 1978 Foreign Intelligence Surveillance Act (FISA) which Congress passed in the wake of revelations about the massive government spying operations targeting individuals and activist groups.   

FISA represents Congress’ attempt to find a third way between the “probable cause” warrant requirements of the Fourth Amendment (essential for criminal cases) and the spy-on-all-dissidents approach of COINTELPRO. If enabled federal officials  to make applications to the secret court for a “FISA warrant” to conduct electronic surveillance or do physical searches when they suspected someone within the US was spying for a “foreign power” or involved with international terrorism. Because they were supposedly collecting information to protect “national security” – not bring a criminal prosecution – they did not have to demonstrate “probable cause” of involvement in wrongdoing when making the application.  

Of the tens of thousands of warrant requests to the FISC, 29,750 were granted and only 11 rejected in the years between 1978 and 2011. The first time FISC said “no” was 2003. Not a single application was rejected in 2011.

Once upon a time, civil liberties advocates were outraged by both the existence of the secret court, and the fact that it served as little more than a rubber stamp for government surveillance. Now the outrage has dimmed.

Why? FISA looks better than the current alternatives. At least federal authorities have to put some effort into making an application for a FISA warrant. At least there is some kind of judicial check involved the process.  

To get a National Security Letter (NSL) demanding personal customer records from Internet Service Providers, libraries, financial institutions, credit card companies and other businesses, all FBI agents have to do is write one themselves. They don’t have to go to any kind of court.  

And not only that.  NSLs come equipped with a gag order preventing the person who receives one from telling anyone about the record demand.  

If  almost 30,000 FISA applications have been made over the last 33 years, there were nearly 200,000 NSLs issued by the FBI in the years 2003-2006 alone, according to a report by the Justice Department’s Inspector General. More than 16,500 were issued last year.

According to the Inspector General, there were numerous instances of deficient paperwork and false information in the NSLs issued by the FBI. Sloppiness was a regular feature. In some cases agents told telecoms and other businesses to hand over records first and they would send them an NSL later – which they never got around to doing.  

Now even the effort of issuing an NSL appears to be too arduous. Today, the FBI is demanding backdoor access to web email and social networking web sites and warrantless access to cellphone data. As the demands of the surveillance state increasingly trump the Constitution, it seems that any kind of warrant process – even the watered down sort demanded by FISA – is an obstacle too far.  

© 2021 ACLU of Massachusetts.