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).