What is FISA?
In typical federal criminal proceedings, when the government wants to surveil an individual’s electronic communications, they must first submit a Title III warrant, which has four main conditions. First, they must establish there is probable cause that surveillance of electronic communications will result in evidence of criminal activity. Second, they must outline minimization procedures to ensure they are only surveilling communications relevant to the purpose of the warrant. Third, establish that without surveilling electronic communications, there are no other avenues through which to obtain evidence of criminal activity. Fourth, the government must notify the target of surveillance after a period of six months, if that surveillance does not produce evidence of criminal activity.
However, in 1978, Congress implemented an exception to these conditions in the form of FISA. In its inception, it required the federal government to get authorization for gathering “foreign intelligence information” between “foreign powers” and “agents of foreign powers.” It also established the Foreign Intelligence Surveillance Court (FISC), that operates in secret and conducts secret approvals of surveillance warrants. In FISA warrants, the government does not have to establish there is probable cause that surveillance will produce evidence of a crime, they do not have to outline or even engage in minimization procedures, they don’t have to establish that surveillance is a last resort, and they are never obligated to notify the target of surveillance. Broadly speaking, FISA allows the government to covertly surveil individuals via phone calls, emails, text messages, etc. for the purposes of “protecting national security,” all while bypassing Fourth Amendment rights Americans are otherwise guaranteed.
In December 2005, the New York Times released an article exposing the NSA (National Security Agency) for operating a program of warrantless wiretapping. It was revealed that the NSA had been monitoring electronic communications without submitting FISA warrants, a blatant violation of FISA’s provisions. In 2008, Congress passed the Foreign Intelligence Surveillance Amendments Act of 2008 which codified the NSA’s warrantless program into law under FISA’s Section 702.
This section specifically grants federal law enforcement the authority to covertly surveil the online activity of non-U.S. persons located abroad, but it also authorizes an entirely different procedure for warrants. Under FISA, a law enforcement official submits a sealed warrant to the FISC, where a judge either approves or denies the warrant. Under Section 702, there is no warrant necessary. Instead, the Attorney General and Director of National Intelligence submit a “certification” each year that details the procedures law enforcement agencies follow under Section 702.
What does FISA Mean for Government Accountability?
Historically, FISA has been a dark hole for government accountability and public trust. In fact, FISA authorized the creation of a secret court with secret court proceedings and secret warrants all in the name of “protecting national security.” For a warrant to pass through FISC, the only standard the government is held to is to establish that their intended target is an “agent of foreign power.” This is where the ambiguity begins. What constitutes as an “agent of foreign power?” Unfortunately, that’s classified.
Additionally, the FISC maintains an air of accountability by establishing that under FISA, each year, the Director of National Intelligence and Attorney General must declassify documents that serve as legal precedent. Confoundingly, these are the very two officials tasked with submitting certifications, meaning that internal accountability falls solely to the discretion of the very officials that run the secret system.
Americans are also entitled to know whether they are surveilled under the Fourth Amendment, which protects against unreasonable surveillance. However, under FISA, the government is not required to notify any target of surveillance unless they intend to use the information obtained for a criminal proceeding. In the incredibly unlikely event they notify an individual they have been surveilled, it is near impossible to contest the grounds of a FISA warrant because to contest its grounds, the government must elect to declassify the warrant first, which is highly improbable.
Simply put, the heavily redacted and highly classified FISA system is void of any avenues through which citizens may hold the government accountable. This reality becomes particularly concerning upon closer examination of the government’s historical use of FISA. Just last year, the FISC was forced to release two heavily redacted opinions that described the NSA’s practice of conducting baseless surveillance of individuals seeking to immigrate to the U.S.. These documents were only released after the ACLU10 filed a lawsuit and submitted an FOIA11 request. Without the urging of the ACLU, it is unclear that this gross misconduct and clear violation of civil liberties would have ever been revealed to the American public.
Of the most egregious violations, the most common have been overcollection of individuals’ information, “incidentally” collecting American persons’ data under Section 702, and most concerning of all to the legal community, continuous surveillance of attorney-client communications.
In 2013, Edward Snowden, a former U.S. intelligence official released a mass of classified NSA documents, revealing the NSA’s practice of “upstream collection.” This was a method the NSA used in conducting FISA surveillance that revealed the NSA collected not only information to and from a target, but also all communications where the target was merely mentioned. The FISC Appeals Court held in 2012 that this practice was unconstitutional. In 2016, despite the FISC’s prior ruling on unconstitutionality, it was revealed the NSA had continued in their practices, despite the awareness that they were non-compliant with FISA procedures, the Constitution, and the FISC’s orders itself. After nearly four years of contentious legal challenges and five years of non-compliance, the NSA reported they abandoned the practice in 2017.
While this may be touted by the U.S. government as a success of the accountability procedures they have embedded into FISA, it reveals a more concerning notion: the American public only has knowledge of the government’s ethically gray practices through a whistleblower who now faces espionage charges at the hands of that same government. What other practices is the government conducting behind closed doors that we don’t know about? How can we trust that they will even follow any updates to FISA if they haven’t followed them before? Unfortunately, these are questions that may never be answered because the government’s practices surrounding FISA are a black hole with a glaring red “CLASSIFIED” plastered across the front.
What does FISA Mean for Muslims-Americans?
Similar to the Patriot Act of 2001, the U.S. government has used FISA to racially and religiously profile Muslims. In 2014, leaked documents revealed that FISA had been used to surveil several prominent Muslim-Americans, one of whom was an attorney who represented clients in terrorism-related cases.
Just two years ago in FBI v. Fazaga, when the Supreme Court considered this abuse of power, the implications of their decision meant that the FBI could get away with unlawfully surveilling American Muslims. The Court further decided that in the unlikely event a victim ever learned of their surveillance and used their constitutional right to challenge it, the government could simply say their activity was “classified” by asserting state secrets privilege and can move to dismiss the plaintiff’s claims. In FBI v. Fazaga, three mosque community members from the Islamic Center of Irvine filed a lawsuit against the FBI for religion-based discriminatory surveillance after discovering the FBI had sent a paid informant into their community to act as a convert to Islam, and that the FBI was collecting hundreds of Muslim community members’ information, surveilling them through FISA. The Supreme Court’s decision in favor of the FBI in this case has had far reaching impacts, most notably communicating that the government is now permitted to withhold any surveillance evidence they choose to in the name of prioritizing national security. Effectively, this decision represents FISA as a system designed to hide abuses, particularly when it applies to Muslim-American.
The FISA Update
Just four months ago, Congress passed another update to FISA under the Reforming Intelligence and Securing America Act (RISAA). An initially highly divisive bill, calling opposition from both sides of the aisle, it was nicknamed “Patriot Act 2.0” and has been described as the “most dramatic expansion of government surveillance since the Patriot Act.”
The three most crucial changes and expansions are:
- Section 702 now requires an FBI attorney or supervisor to approve the use of each search term (“query”) associated with a U.S. person. This apparent limitation is the result of an ineffective compromise for those in Congress calling for the requirement of an individual warrant for each search. This internal check on government surveillance leaves the decision in the hands of the very individuals who have previously proven they are complicit in the FBI’s non-compliance with FISA procedures
- Second, Congress awarded itself the Fourth Amendment rights that FISA blocks from all other ordinary Americans by instituting a requirement that the FBI notify members of Congress if their associated surveillance queries are being used in an investigation. If the FBI also seeks to use a member of Congress’ information in an intelligence briefing, they must acquire that member’s consent to do so. Neither of these procedures exist for Americans who are not members of Congress. Instead, the implication associated with this update is that those in positions of power (i.e. legislative power via Congressional seat) are afforded more rights than ordinary citizens.
- Third, and most concerning of all, the FBI’s authority to coerce neutral third-party electronic communication service providers to aid them in cover surveillance has significantly expanded beyond typical service providers (X, Meta, Google, etc.). Now, with the passage of the RISA Act, the FBI has the authority to use all businesses who provide any electronic services as proxies for their surveillance. This means libraries, firs, retail stores, or any establishment that provides an electronic service (ex: free Wif-Fi) must restructure their systems to allow the government to have access to any and all communication streams, when requested. With this newfound authority, the federal government has forced themselves into both physical businesses and online platforms, effectively dismantling American privacy more than ever before.
Conclusion
FISA represents a complex, controversial legal framework that has shaped the government’s surveillance practices for decades. Its secretive nature has historically raised ethical concerns and predictably, those concerns will continue as long as FISA is active. As long as FISA remains shrouded in secrecy, the tension between the government choosing to prioritize national security over individual freedoms, especially for groups like Muslim-Americans, will persist, challenging the public’s trust in government oversight.