Transcript
After years of debate and disagreement, the question of individual rights safely balanced with the powers of the Foreign Intelligence Surveillance Act (FISA) remains unsettled, a matter of personal theory, application, or practiced experience. Notions of personal freedom and national security grow increasingly complicated as terrorism grows, expands, and relentlessly modifies itself. FISA has proved an essential tool to span the divide between foreign and U.S. terrorist activity. For America to consistently revitalize its war against terrorism, historic fundamentals must meet the sunlight of new reality which includes expanding threats and enhanced capabilities of players bent on destruction or conquest of the world. Today’s perils require intelligence communities to proceed apace while the Legislative and Judicial branches, which exert constitutional controls, must make every effort to fully understand the deadly threats and the kind of intelligence required to terminate them.
There are two well-defined jurisdictions in United States law. State jurisdiction exists within state boundaries and includes “the power to regulate, control and govern real and personal property, individuals and enterprises” (USLegal n.d). Federal law jurisdiction is confined to areas which must conform to the Constitution. In 1789, Congress authored the Judiciary Act directing the judicial power of the United States “shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish” (Robert Wheeler&Carol Harrison 2005).
Numerous elements of that first Act have long been terminated, but its foundation survives to this day: A Supreme Court which rules on the Constitution and pursuant laws, as well as a network of lower federal courts carrying out identical jurisdictions.
The jurisdiction of the federal courts has been defined by the Constitution, congressional statutes, and decisions of the Supreme Court of the United States. Article III provides that the federal judicial power extends to nine types of cases:
“all cases in law and equity arising under the Constitution, laws,
and treaties of the United States; all cases affecting ambassadors,
other public ministers and consuls; all cases of admiralty and
maritime jurisdiction; controversies to which the United States
is a party; controversies between two or more states;
controversies between a state and citizens of another state;
controversies between citizens of different states; controversies
between citizens of the same state claiming lands under
grants of different states; and controversies between a state or its
citizens and foreign states, citizens, or subjects. The Constitution
grants the Supreme Court original jurisdiction over cases affecting
ambassadors and public ministers and cases in which a state is
a party, leaving the remainder of cases within the judicial power
to the Court's appellate jurisdiction, with "such exceptions, and under
such regulations as the Congress shall make” (Federal Judicial Center n.d.).
In 1978, FISA (Title I and III) was created by Congress and allowed electronic surveillance in the United States when collecting foreign intelligence/counterintelligence only; identified which foreign entities could be surveilled electronically; provided a probable cause standard before surveillance was approved; and established the Foreign Intelligence Surveillance Courts (FISC). By most standards it was a weak and vague assortment of powers. September 11, 2001, changed that.
Following 9/11, advanced technology created growing numbers of e-communications and phone calls streaming the United States, making it immediately unclear whether both communicants were outside the United States or if either of them was an American citizen. The issue was ignored in FISA 1978 and the Foreign Intelligence Surveillance Amendments Act of 2008 (FAA), through Title VII of FISA, “allowed streamlined approval for such surveillances without requiring an individual application for each target” (Jessica Zuckerman 2012), thus exposing American citizens overseas to possible unlawful surveillance. This expedited process required the Attorney General (AG) and the Director of National Intelligence (DNI) to produce for the FISA court annual certification that all FAA requirements, including targeting and minimization procedures, had been met regarding foreign targets subject to surveillance. (Jessica Zuckerman 2012).
The 2008 FAA defined targeting rules to prohibit receiving communications from individuals known to be in the United States. The minimization procedures of FAA 2008 were enacted to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States” (Legal Information Institute, (LII) n.d.). These so-called ‘minimization procedures’ restricted surveillance of confidential information concerning non-consenting United States persons (LII n.d.).
The years following the enactment of FISA 1978 as well as FAA 2008 saw serious breaches of American security and abuses of power by the IC and the National Security Agency (NSA) against the civil rights and guaranteed liberty of Americans. As a result, the FISA Amendments Reauthorization Act of 2017 focuses in great measure on renewed privacy protections of American citizens.
A sampling of a few of the major, noncontroversial elements of The FISA Amendments Reauthorization Act of 2017 includes: 1) Querying Procedures that require the AG and DNI to adopt procedures consistent with the requirements of the fourth amendment; 2) Use and Disclosure Provisions that restrict the use of U.S. persons’ information obtained under Section 702 as evidence in a criminal proceeding; 3) The Section 102B amendment that requires the mandatory reporting on the breakdown of U.S. and non-U.S. persons targeted for electronic surveillance; 4) Directions to the AG and DNI that require them to inform Congress within 30 days prior notice if they plan to restart the “Abouts” program, and 5) Extension of Whistleblower Protections for Contractors of the Intelligence Community against reprisals (Emma Kohse 2018).
It is Section 702 of The FISA Amendments Reauthorization Act of 2017 which inspired the greatest debates and misunderstandings regarding establishing protections against the government’s power to collect and use information in intelligence matters. The first FISA required court approval for each governmental request for surveillance; however, advancing technologies now enable rapid digitized messaging across borders, complicating FISA attempts to distinguish between domestic and foreign surveillance, giving rise to Section 702 collections.
Generally, Section 702 “permits the Attorney General (AG) and the Director of National Intelligence (DNI) to authorize the IC to target foreign persons reasonably believed to be located outside the U.S. for the purpose of acquiring foreign intelligence information. This acquisition is conducted pursuant to a FISC order approving a certification and accompanying targeting and minimization procedures” (Richard Fontaine 2018). Section 702 allows such collection even if a U.S. person inside the United States is a party to the communication, subject to minimization procedures and other safeguards. “By contrast, sections 703 and 704 generally require a court order for targeting U.S. persons reasonably believed to be outside the United States” (Zachary Eddington 2012).
The NSA has reported “the collection under FAA Section 702 is the most significant tool in the NSA collection arsenal for the detection, identification, and disruption of terrorist threats to the U.S. and around the world” (2013). Section 702 collection actions have uncovered terror plots, identified individuals belonging to terrorist networks, infiltrated active terrorist networks, and categorized and outlined foreign communications infrastructures.
The national security value of Section 702 has been duly acclaimed in most security and intelligence circles, but it can also endanger Americans’ civil liberties. A foreigner under legitimate government surveillance may incidentally communicate with Americans, who then have their communications collected for governmental uses. Because of the dangers to American civil rights, 702 collections function with strict accountability measures, including oversight by the DNI and Department of Justice, as well as relevant congressional committees, and independent civil liberties organizations, to name a few (Fontaine 2018). The ongoing and continuing review of these organizations includes comprehensive scrutiny of each program, starting with criteria for targeting, as well as data use and storage.
Supreme Court Chief Justice John Roberts recently said that the court must identify "the fundamental principle underlying what constitutional protection is and apply it to new issues and new technology. I think that is going to be the real challenge for the next 50 years” (2012). Therein lies the narrative and timeline of FISA past and future. The FISA Amendments Reauthorization Act of 2017 enacted new privacy protections, limited searches of 702 data for use in criminal investigations, and decreased the Justice Department’s ability to use that data to prosecute domestic crimes – all artifacts of past legislative enactments. It is critical that today’s Judicial and Legislative watchdogs understand anew the deadly threats that exist right now and the kind of intelligence required to terminate them safely and effectively. Most intelligence activity is out of necessity and not a matter of choice. There is no Plan B.
Bibliography
Emma Kohse, "Summary: The FISA Amendments Reauthorization Act of 2017." Lawfare. January 22, 2018. Retrieved from: https://www.lawfareblog.com/summary-fisa-amendments-reauthorization-act-2017.
Federal Judicial Center, Staff. (n.d.) Jurisdiction of the Federal Courts. (n.d.) Retrieved from: https://www.fjc.gov/history/courts/jurisdiction-federal-courts
Jessica Zuckerman. Foreign Intelligence Surveillance Amendments Act of 2008. The Heritage Foundation. (November 13, 2012). Retrieved from: https://www.heritage.org/defense/report/foreign-intelligence-surveillance-amendments-act-2008
John Roberts. Roberts to Rice: Court not as divisive as many think. Rice University. (October 17, 2012). Retrieved from: http://news.rice.edu/2012/10/17/a-conversation-with-the-chief-justice/
Legal Information Institute, (LII) n.d. 50 U.S. Code § 1801 – Definitions. (n.d.) Cornell University. (n.d.). Retrieved from: https://www.law.cornell.edu/uscode/text/50/1801
National Security Agency (NSA). (2013) The National Security Agency: Missions, Authorities, Oversight and Partnerships. National Security Press Room. (August 9, 2013). Retrieved from: https://www.nsa.gov/news-features/press-room/statements/2013-08-09-the-nsa-story.shtml
Richard Fontaine. Commentary: Why the FISA Act Isn’t the Privacy-Stealing Monster Some Think It Is. Fortune Magazine. (January 23, 2018. Retrieved from: https://finance.yahoo.com/news/commentary-why-fisa-act-isn-162149817.html
Robert Wheeler and Carol Harrison. Creating the Federal Judicial System. Federal Judicial Center. (2005). Retrieved from: https://www.fjc.gov/sites/default/files/2012/Creat3ed.pdf
USLegal.com. (n.d.) Areas of Exclusive Federal Jurisdiction. (n.d.) Retrieved from:
https://civilprocedure.uslegal.com/jurisdiction/areas-of-exclusive-federal-jurisdiction/
Zachary Eddington. Update on the FISA Amendments Act Reauthorization. Lawfare Blog. (October 31, 2012). Retrieved from: https://www.lawfareblog.com/update-fisa-amendments-act-reauthorization
