Tag Archives: Foreign Intelligence Surveillance Act (FISA)

Moving Quickly In The Wrong Direction

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On Monday, Breitbart posted an article about the renewal of the Foreign Intelligence Surveillance Act (FISA). Somehow the House of Representatives managed to make the law even worse than it was.

The article reports:

Despite the outrage at the passage of the legislation, 110 Republicans also voted for an amendment proposed by House Intelligence Committee Chairman Mike Turner (R-OH) and committee Ranking Member Jim Himes (D-CT) that would seek dramatically expand the ability for the government to surveil Americans’ communications.

The measure updates the definition of electronic service provider to also include “any other service provider who has access to equipment that is being or may be used to transmit or store wire or electronic communications.”

The amendment would significantly expand the number of businesses and their employees who could be compelled to spy on their customers and provide warrantless access to their communications systems in accordance to this controversial FISA provision.

This provision has been referred to by privacy advocates as a “trojan horse” for “PATRIOT Act 2.0.”

Steve Bradbury, a distinguished fellow at the Heritage Foundation and former Acting Assistant Attorney General for the Office of Legal Counsel at the Justice Department under George W. Bush, told Breitbart News during a press conference on Monday that the Turner-Himes is so vast in scope that experts may not truly understand how many companies, staffers, and other entities may be forced to surveil Americans.

The article concludes:

Those on the left have also cried foul at the Turner-Himes proposal, referring it to as the “Everybody Is a Spy” amendment.

Demand Progress Policy Director Sean Vitka said in a written statement on Monday:

These moves from the Intelligence Committee add up to a brazen and deliberate attempt to sneak through one of the most terrifying expansions in the history of government surveillance. This is not speculative: the amendment clearly allows the government to secretly conscript uninvolved Americans and American businesses to spy on each other. These KGB-style powers pose an existential threat to our civil liberties. The Senate must block this provision.

If the Senate fails to remove this amendment from the bill, it will be handing the president, and whoever the next president is, a knife to ram through the back of democracy. [Emphasis added]

Sen. Ron Wyden (D-OR), after the House passed RISAA, said in no uncertain terms:

The House bill represents one of the most dramatic and terrifying expansions of government surveillance authority in history. It allows the government to force any American who installs, maintains, or repairs anything that transmits or stores communications to spy on the government’s behalf. That means anyone with access to a server, a wire, a cable box, a wifi router, or a phone. It would be secret: the Americans receiving the government directives would be bound to silence, and there would be no court oversight. [Emphasis added]

He added, “I will do everything in my power to stop this bill.”

Congress took a bad bill and made it worse.

Listening To The People

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I recently posted three articles (here, here, and here) about the renewal of FISA (Foreign Intelligence Surveillance Act) Section 702. Note that the law is called “foreign intelligence surveillance” act–not the spying on your political opponents act. Unfortunately the act has been used 278,000 times to conduct illegal searches on Americans. That is why I oppose the renewal of Section 702.

On Wednesday, The Hill reported:

A group of House Republicans on Wednesday tanked a procedural vote to begin debate on a bill to reauthorize the nation’s warrantless surveillance powers, leaving the chamber scrambling on how to address the important spy tool before it expires next week.

Nineteen Republicans joined Democrats in voting against a rule for legislation to renew Section 702 of the Foreign Intelligence Surveillance Act (FISA), blocking the measure from advancing 193-228.

The move comes after former President Trump on Wednesday urged Republicans to “KILL FISA” — throwing a wrench in an already contentious debate.

The failed vote marks yet another instance of members of the GOP tanking what is typically a routine party-line vote to protest legislation put forward by leadership.

If you haven’t figured it out yet, The Hill is part of the Operation Mockingbird media. The public has also urged Congress to kill FISA, but the author of the article chooses to overlook that.

On Wednesday, The Hill also reported:

Former Attorney General Bill Barr on Wednesday denounced former President Trump’s exhortation for Congress to kill the Foreign Intelligence Surveillance Act (FISA) as “crazy and reckless” and warned there will be “blood on people’s hands” if the intelligence community’s surveillance authority expires and there’s a terrorist attack on the United States.

Barr, who served in Trump’s Cabinet in 2019 and 2020, noted that Trump at one time supported the expanded surveillance powers authorized under Section 702 of FISA and warned that political “posturing” against extending that authority would be dangerous to national security.

“I think it’s crazy and reckless to not move forward with FISA. It’s our principal tool protecting us from terrorist attacks. We’re living through a time where those threats have never been higher, so it’s blinding us, it’s blinding our allies,” Barr told The Hill in an interview.

You mean those allies that aided in the Russia Hoax?

Section 702 is a step toward a government that can surveil its political opponents without any limitations. They don’t need a warrant and the people surveilled don’t have to know they are being watched. That is a violation of the Fourth Amendment, which states:

Fourth Amendment

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.

Bill Barr is a lawyer. He is supposed to know the U.S. Constitution.

This Is A Reminder

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This is another reminder that Section 702 needs to be unauthorized instead of approved by April 19.

On Monday, Just the News posted the following:

Conservative lawmakers are calling for an end to warrantless surveillance of Americans ahead of a House floor vote on Wednesday to reauthorize the Foreign Intelligence Surveillance Act (FISA).

The bill, titled the “Reforming Intelligence and Securing America Act,” would extend section 702 of FISA, which “authorizes the targeted collection of foreign intelligence information from non-U.S. persons located abroad,” according to the FBI.

Conservative Republicans and some Democrats such as Rep. Pramila Jayapal, D-Wash., chair of the Congressional Progressive Caucus, have teamed up to push for a warrant requirement as a condition for reauthorizing FISA. However, the legislation up for a vote on Wednesday does not include a warrant requirement in its current form. 

“No matter how hard the deep state cries, Congress must NOT reauthorize FISA 702 without requiring a warrant to search U.S. citizens,” wrote Sen. Mike Lee, R-Utah, on X.

“The SAFE Act contains a warrant requirement, the Lee-Leahy reforms, language ensuring that our Fourth Amendment rights can’t be bought and sold, and a handful of other protections necessary to protect Americans’ privacy,” he also wrote.

The article concludes:

The Brennan Center for Justice and other organizations wrote a letter on April 5 urging lawmakers to vote in favor of amendments to the bill up for a vote that will require a warrant.

House Intelligence Committee Chairman Mike Turner, R-Ohio, a proponent of the legislation up for a vote on Wednesday, predicted the bill will pass.

“I think it will,” Turner said Sunday on CNN. “I think that those who mischaracterize this are small compared to those who understand that this goes to the heart of our ability to get intelligence. It allows us to be able to keep Americans safe. This is not a warrantless surveillance of Americans.”

Biggs argued that the bill Turner supports is “very modest, very incremental” and does not contain significant reforms to Section 702.

“Quite frankly, it’s going to be who’s watching the henhouse. It’s going to be the FBI still watching the henhouse,” he said. 

It has become obvious that the people in charge cannot be trusted with warrantless surveillance. Let’s not give them the right to do warrantless surveillance.

I Know Things Are Getting Strange When I Agree With The ACLU

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The following statement is posted at the American Civil Liberties Union (ACLU) website:

Under Section 702 of the Foreign Intelligence Surveillance Act (FISA), the U.S. government engages in mass, warrantless surveillance of Americans’ and foreigners’ phone calls, text messages, emails, and other electronic communications. Information collected under the law without a warrant can be used to prosecute and imprison people, even for crimes that have nothing to do with national security. Given our nation’s history of abusing its surveillance authorities, and the secrecy surrounding the program, we should be concerned that Section 702 is and will be used to disproportionately target disfavored groups, whether minority communities, political activists, or even journalists.

Section 702 is set to expire at the end of 2023. We call on Congress to significantly reform the law, or allow it to sunset.

The phone number of the Congressional switchboard is (202) 224-3121.

Sometimes Congress Actually Does Something When It Directly Impacts Them!

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On Tuesday, The Daily Wire posted an article about the Department of Justice’s spying on members of Congress.

The article reports:

House Judiciary Chairman Jim Jordan (R-OH) announced on Tuesday that he subpoenaed Attorney General Merrick Garland for information on alleged efforts to surveil members of Congress and congressional staff — including during the Russiagate controversy that rocked former President Donald Trump’s 2016 campaign and administration.

In a cover letter to Garland, which noted potential legislative reforms could follow, Jordan said his panel “must resort to compulsory process” because of the “inadequate response to date” by the Department of Justice (DOJ) following his request for details about the apparent use of subpoenas to obtain private communications of Legislative Branch employees.

The DOJ previously informed the committee that the legal process it used related to an investigation into the “unauthorized disclosure of classified information in a national media publication,” the letter said. Jordan cited news reporting that indicated the inquiry pertained to the Foreign Intelligence Surveillance Act (FISA) surveillance of one-time Trump campaign associate Carter Page, reliant on an effort to get FISA warrants that the DOJ inspector general heavily criticized and the DOJ itself later conceded had relied on “insufficient predication” to last as long as it did.

The article concludes:

The Executive Branch appears to have used its “immense law-enforcement authority to gather and search the private communications of multiple Legislative Branch employees who were conducting Constitutional oversight of the Department’s investigative actions — actions that were later found to be unlawful,” Jordan wrote.

“Because the Department has not complied in full with our requests, we cannot independently determine whether the Department sought to alleviate the heightened separation-of-powers sensitivities involved or whether the Department first sought the information through other means before resorting to legal process,” Jordan added. “The Committee also has concerns that aspects of the Department’s investigation may have been a pretext to justify piercing the Legislative Branch’s deliberative process and improperly access data from Members and staff involved in conducting oversight of the Department.”

After watching the Department of Justice in recent years, I have concluded that the upper management of the Department has very little respect for the rule of law. They need to be replaced.

It’s Time To Let FISA Die–It Is Being Misused

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On Friday, Just the News posted an article about the misuse of the Foreign Intelligence Surveillance Court (FISC) to spy on Americans.

The article reports:

The FBI improperly used a controversial surveillance tool on a United States senator, as well as multiple state officials, court documents released Friday have revealed.

The American Civil Liberties Union (ACLU) secured an opinion from the Foreign Intelligence Surveillance Court (FISC) determined that the bureau made improper use of the Foreign Intelligence Surveillance Act’s Section 702, a tool allowing for the warrantless surveillance of foreigners abroad.

The FISC opinion, according to The Hill, states that “[i]n June 2022, an analyst conducted four queries of Section 702 information using the last names of a U.S. Senator and a state senator, without further limitation.” The FISC opinion does not name the individuals in question.

It further stated that in October 2022, “a Staff Operations Specialist ran a query using the Social Security number of a state judge who “had complained to [the] FBI about alleged civil right violations perpetrated by a municipal chief of police.”

Section 702 of the Act was adopted in 2008 and grants the Intelligence Community considerable powers to surveil foreign actors, though critics have contended that the tool has enabled improper surveillance of Americans.

The article notes:

“The FBI continues to break the rules put in place to protect Americans, running illegal searches on public officials including a U.S. senator, and it’s long past time for Congress to step in,” he continued. “As Congress debates reauthorizing Section 702, these opinions make clear why fundamental reforms are urgently needed.”

The article concludes:

Section 702 is set to expire at the end of the year and Intelligence Community leaders have urged Congress to renew it, though the revelations of misuse have led some lawmakers to adopt a hostile stance on such an action.

Florida Republican Rep. Matt Gaetz in July introduced a resolution to support allowing the measure to expire on time.

“The persistent abuse of Section 702 of FISA underscores the disturbing trend of our federal government being weaponized against its people. The blatant misuse of warrantless surveillance powers targeting Americans’ communications should not be accepted or reauthorized. We must uphold national security without sacrificing the constitutional rights of our fellow Americans,” he said at the time.

I agree.

Is Anyone Listening?

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John Durham testified before the House Judiciary Committee on Wednesday. Trending Politics posted part of his testimony on Wednesday.

This is part of that testimony:

CLINE(Representative Benjamin Lee Cline who has served as the U.S. representative for Virginia’s 6th congressional district since 2019): “FBI leadership continued the investigation even when case agents were unable to verify the evidence, correct?”

DURHAM: “That’s correct.”

CLINE: “The FBI did not interview key witnesses in Crossfire Hurricane, correct?”

DURHAM: “Correct.”

CLINE: “And individuals within the FBI abused their authority under the Foreign Intelligence Surveillance Act, correct?”

DURHAM: “Correct.”

This is more of that testimony from the article:

CLINE: “Right. So investigators relied on misstatements by the confidential human source ignored exculpatory statements made by Papadopoulos in submitting the FISA application to surveil Carter Page, correct?”

DURHAM: “That’s correct.”

CLINE: “Is it true that an FBI employee fabricated this evidence? Can you expand on that fabrication and the reliance to support that FISA application?”

DURHAM: “In connection with one of the agents who had come on board wanted to be certain that there was information that, was there information as to whether or not Carter Page had been a source of information to the CIA, and pressed Kevin Clinesmith, in the General Counsel’s Office of the FBI, on that point. Clinesmith got a hold of people at another government agency, intelligence agency on the issue, and that person indicated, not indicated, said that yes, in the FBI parlance, Carter Page was the source, and put that in writing. When Clinesmith talked to the agent who was saying, we want to be sure on this, was he or was he not a source, Clinesmith said, no, he said he’s not. He said, did we get that in writing? Clinesmith said yes, and they said, well, I want to see it. And then Clinesmith altered the other government agency document to reflect this, to say that Page was not a source, when he in fact was a source. That’s the gist of it.”

Notice that so far no one who is guilty of weaponizing the federal government against political opponents has gone to jail.

The Patriot Act

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I apologize for the length of this article, but all of it is important information.

On June 14th, The Epoch Times posted an article about surveillance of American citizens by our government. This surveillance has reached the point when none of us really have any privacy. One example of the lack of privacy is the government collecting data from The Bank of America on anyone who made credit card purchases in the Washington, D.C. area on January 6th.

The article reports:

Congressional debates about whether to renew Section 702 are coming amid numerous reports that the FBI and other federal intelligence agencies have abused the surveillance authority granted to them by this law. Critics say there is mounting evidence that federal agencies have been using laws, which were intended to target foreign terrorists, to conduct extensive, long-term domestic spying campaigns on U.S. citizens.

“To prevent Section 702 from being used as an end run around [Fourth Amendment] protections, Congress did two things: It required the government to minimize the collection, sharing and retention of Americans’ personal information … and it required the government to certify to the FISA court on an annual basis that it is not using Section 702 to try to access the communications of particular known Americans,” Elizabeth Goitein, a senior director at New York University’s Brennan Center for Justice, told conference attendees.

“What has become abundantly clear over the last 15 years is that these protections are not working,” Goitein said. “All agencies that receive Section 702 data have procedures in place, approved by the FISA court, that allow them to run electronic searches … for the purpose of finding and retrieving the phone calls, text messages and emails of Americans.”

A report by the Brennan Center for Justice states that “since 2006, the National Security Agency (NSA) has been secretly collecting the phone records of millions of Americans from some of the largest telecommunications providers in the United States, via a series of regularly renewed requests by the Federal Bureau of Investigation (FBI).”

In addition, the report states that “over the past six years, the NSA has obtained unprecedented access to the data processed by nine leading U.S. internet companies. This was facilitated by a computer network named PRISM. The companies involved include Google, Facebook, Skype, and Apple.”

Below is a paraphrase of an email I received this morning from a friend:

Congress is repealing the Patriot Act or at least portions of it. The FISA process needs to be repealed. Some will say it can be fixed; however, I am proffering it can not and must be shut down. The process is based on two fundamentals: 1) if anyone lies, the process will catch it and 2) groups of people will not collude to abuse the process against a group of people because again, the process will catch this. Based on the last eight (8) years both of these fundamentals have been proven wrong. When President Obama spied on Candidate Trump it demonstrated these fundamentals are no longer true. When fundamentals are violated, the structure built upon these will surely fail and this has been demonstrated. Thus, as a former NSA systems engineer, I am asking Congress to cancel this. Besides, based on the abuses, intelligence must relearn how to do the job the hard way before this privilege was granted by the Congress.The process in my mind is not just the obtaining of a warrant through a FISA process but adding the back end processes where every query into an intelligence data repository is audited, auditors review the queries to ensure these are not potential abuses, investigating when there could be and reporting to Judicial, logs of who is allowed to access intelligence repositories along with the lifestyle security back ground security clearance, logs tracking who received intelligence product created from access to the intelligence data repositories, and a strict process and logging on unmasking of US persons.

In my last years at NSA, the rules for accessing intelligence data repositories changed; NSA no longer controls those accesses . Each agency now creates their own policies, and the strict back ground security clearance is no longer required. Further Compliance activities have shortened the length of time data and data logs are retained–some as long as only two (2)years, one House of Representative term. There is no way an audit could be done now of the spying which did occur in 2016; all those logs are gone as of 2018. Pleas were sent asking Congress to send an order to retain; but alas, Congress refused to do this.Why is this important?  The Fourth Amendment of the United States Constitution protects all U.S. citizens anywhere in the world and within the United States from unreasonable searches and seizures by any person or agency acting on behalf of the U.S. Government. The U.S. Supreme Court has ruled that the interception of electronic communications is a search and seizure within the meaning of the Fourth Amendment. This is a fundamental right of all US Persons, most of whom are Americans.FISA (Foreign Intelligence Surveillance Act) permits electronic surveillance in two situations. First, the President is authorized to use warrantless wiretapping for the protection of the US against a potential grave attack, sabotage, or espionage, on the condition that the government does not tap any U.S. citizen. Second, federal law enforcement officials must obtain a warrant for foreign taps that does not meet the criteria of the first situation. To obtain the warrant, the FISA court (also created by the Act) must find probable cause the individual targeted is a foreign power or an agent of a foreign power and a foreign power is likely to use the place to be tapped. So, within law and policy there are a series of governance for the FISA (Court) must abide by as do the Intelligence and Law Communities. The reason for strict adherence is when presenting a FISA warrant, the person being targeted is not afforded the right to counsel. Only the Judges and Agents seeking permission are present in the court room. Again, the procedures, instructions, and guidance built to ensure the law is followed are based on assumptions. Again, the first assumption is if any one lies, it will be caught by the process. Again,a second is if a group of people collude to seek violating someone’s rights it will be caught by the process. With LTG Flynn, the FBI IG report shows that these fundamental assumptions are no longer true.Thus, the question of should FISA stay or go is based on whether you think processes can be modified to overcome flawed base assumptions or do you think it is better to rebuild the system with new assumptions. Our Federal Representatives will be asked to participate and vote on fixing the current system. It is proffered, perhaps shutting FISA down and rebuilding with new fundamental assumptions people will lie is a better way ahead than trying to find out all the places the fundamental assumptions have failed. Congress needs to repeal this process (BTW: it pains me to take this position – but it is imperative).

 

The Illusion Of Privacy

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Most Americans assume that their private conversations on their electronic devices are private. They assume that what they say in private conversations in person is private. Well, not so fast.

On Thursday, The Epoch Times reported the following:

More than 10,000 federal employees could have access to data revealed by a secretive government surveillance program that has come under scrutiny because of alleged abuses, lawmakers were told by U.S. inspectors general.

At an April 27 House Judiciary subcommittee hearing, lawmakers heard from a panel of three witnesses associated with the U.S. Office of the Inspector General (OIG) responsible for oversight of the Foreign Intelligence Surveillance Act (FISA). The legislation gives intelligence agencies broad powers to conduct surveillance on foreigners suspected of spying for a foreign power or belonging to a terrorist group.

However, bipartisan concerns have been raised because the program also has the ability to collect information about U.S. citizens.

…A court-ordered report released in May 2022 revealed that the FBI had made more than 3.3 million queries of Americans under FISA authority. This, in turn, prompted a crisis of confidence in the FBI’s respect for civil liberties among members of both parties.

The article notes:\

The program in question, FISA section 702, has been scrutinized for its alleged abuses. Aside from the incidents uncovered in 2021, the intelligence community (IC) has repeatedly failed audits of its use of FISA.

In 2019, Justice Department Inspector General Michael Horowitz investigated a random sampling of 29 FISA cases by the FBI. None of the 29 cases chosen were found to be legitimate.

The FISA is overseen by the FISA court, a secretive body that grants spying authority to U.S. intelligence agents.

To make a FISA query of U.S. citizens, the FBI and other law enforcement agents are legally required to receive the approval of the closed-door FISA court.

In his investigation, Horowitz found that none of the 29 randomly chosen queries had been carried out properly or legally. Rep. Andy Biggs (R-Ariz.) said from an earlier conversation with Horowitz that in 25 of the cases, “there was unsupported, uncorroborated, or inconsistent information.” The FBI couldn’t even produce the relevant investigative files in the other four.

“In those 29 applications that were reviewed, the inspector general found over 400 instances of noncompliance with the Woods Procedures,” Biggs said, referencing FBI procedures requiring that FISA requests be “scrupulously accurate.”

Since 2021, the FBI has reduced illegal queries by about 90 percent, according to FBI Director Christopher Wray.

It should be noted that FISA was initially enacted in 1978 to create procedures for physical and electronic surveillance and collection of foreign intelligence information. Initially, FISA addressed only electronic surveillance but has been significantly amended to address the use of pen registers and trap and trace devices, physical searches, and business records.

It is time to end FISA. It has been turned on American citizens. Please follow the link to read the entire article.

A Necessary Change

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On Tuesday, Just the News posted an article about some changes being made to the Foreign Intelligence Surveillance Act (FISA) to prevent the kind of abuse of the Act that we saw during the 2016 presidential campaign.

The article reports:

Seeking to address massive failures during the Russia probe, FBI Director Chris Wray and Attorney General William Barr announced Tuesday sweeping new reforms to ensure future warrants targeting Americans under the Foreign Intelligence Surveillance Act are accurate, legal and free from political influence.

The changes include the creation of a new audit office to review FISA applications and new vetting to ensure the accuracy of agents’ evidence when seeking to spy on U.S. citizens. The Justice Department also created new protocol governing when surveillance can be conducted on elected officials and candidates for office.

The changes, memorialized in two separate memos, are an outgrowth of a DOJ inspector general report last December that identified 17 instances of misconduct, erroneous evidence, factual omissions and mistakes in the pursuit of a FISA application targeting former Trump adviser Carter Page during the Russia collusion investigation. Last month, a former FBI lawyer pleaded guilty to falsifying evidence during the probe.

The article notes:

“FISA is a critical tool to ensuring the safety and security of Americans, particularly when it comes to fighting terrorism. However, the American people must have confidence that the United States government will exercise its surveillance authorities in a manner that protects the civil liberties of Americans, avoids interference in the political process, and complies with the Constitution and laws of the United States,” Barr said. “What happened to the Trump presidential campaign and his subsequent administration after the President was duly elected by the American people must never happen again.”

That’s fine, but when are all of the people who were involved in the misuse of FISA warrants going to be held accountable?