Spying On Foreigners Outside US With FISA

By Cliff Montgomery – Sept. 5th, 2016Even though U.S. officialshave long claimed that the National Security Agency (NSA) possesses onlya limited, minimal legal authority to collect data on Internetcommunications, a secretive court authorized to oversee the activityonce determined the NSA’s “minimization procedures to be deficient onstatutory and constitutional grounds,” according to a little-knownreport on the matter published in April by the Congressional ResearchService (CRS).Below, quotes especially informative portions of the CRS study.Muchof this information is already familiar to well-informed individuals,both in America and around the globe but it’s extremely important toremain mindful of these gross failings in government spying. The FourthAmendment – and thus your actual security – depends on it.“Afterthe attacks of September 11, 2001, President George W. Bush authorizedthe National Security Agency to conduct a Terrorist Surveillance Program(TSP) to ‘intercept international communications into and out of theUnited States’ by ‘persons linked to al Qaeda or related terroristorganizations.’“After the TSP activities were concluded in 2007,Congress enacted the Protect America Act (PAA, P.L. 110-55), whichestablished a mechanism for the acquisition, via a joint certificationby the Director of National Intelligence (DNI) and the Attorney General(AG), but without an individualized [i.e., actual] court order, offoreign intelligence information concerning a person reasonably believedto be outside the United States.“This temporary authority ultimately expired after approximately six months, on February 16, 2008.“Severalmonths later, Congress enacted the Foreign Intelligence SurveillanceAct (FISA) Amendments Act of 2008 (P.L. 110-261), which created separateprocedures for targeting non – U.S. persons and U.S. persons reasonablybelieved to be outside the United States under a new Title VII of FISA.“Title VII of FISA was re-authorized in late 2012 (P.L. 112-238) this authority now sunsets on December 31, 2017.“Significantdetails about the use and implementation of Section 702 of Title VII,which provides procedures for targeting non-U.S. persons who are abroad,became known to the public following reports in the media beginning insummer 2013.“According to a partially declassified 2011 opinion fromthe Foreign Intelligence Surveillance Court (FISC), the NationalSecurity Agency (NSA) collected 250 million Internet communications peryear under Section 702.“Of these communications, 91% were acquired‘directly from Internet Service Providers,’ using a mechanism referredto as ‘PRISM collection.’“The other 9% were acquired through whatNSA calls ‘upstream collection,’ meaning acquisition while Internettraffic is in transit from one unspecified location to another.“In2015, Congress enacted the USA FREEDOM Act (P.L. 114-23) to re-authorizeand amend various portions of FISA. While most of the amendments dealtwith portions of FISA that were unrelated to Section 702, the act didinclude authority to continue surveillance of a non-U.S.person for 72hours after the target is reasonably believed to be within the UnitedStates, but only if a lapse in surveillance of the target would pose athreat of death or serious bodily harm.“A traditional FISA order for electronic surveillance must be obtained to continue surveillance after that period.” […]FISC Opinions “InAugust 2013, the Obama Administration partially declassified severalopinions of the FISC regarding collection activities under Section 702. “Thefirst of these opinions, dated October 3, 2011, evaluated the targetingand minimization procedures proposed by the government to deal with newinformation regarding the scope of ‘upstream collection,’ in whichcommunications are acquired from Internet traffic that is in transitfrom one unspecified location to another. “Specifically, thegovernment had recently discovered that its ‘upstream collection’activities had acquired unrelated international communications as wellas wholly domestic communications due to technological limitations. “Afterbeing presented with this new information, the FISC found the proposedminimization procedures to be deficient on statutory and constitutionalgrounds. “With respect to the statutory requirements, the FISCnoted that the government’s proposed minimization procedures werefocused ‘almost exclusively’ on information that an analyst wished touse and not on the larger set of information that had been acquired. “Consequently,communications that were known to be unrelated to a target, includingthose that were potentially wholly domestic, could be retained for up tofive years so long as the government was not seeking to use thatinformation. “The court found that this had the effect ofmaximizing the retention of such information and [thus] was notconsistent with FISA’s mandate to minimize the retention of U.S.persons’ information. “The FISC also held that the proposed minimization procedures did not satisfy the Fourth Amendment. “TheFISC found that, under the facts before it, the balance required underthe Fourth Amendment’s reasonableness test did not favor the government,particularly in light of the statutory deficiencies. “Followingthe FISC’s determination that the Fourth Amendment had been violated,the government presented revised minimization procedures to the FISC,and the court approved those procedures on November 30, 2011. “Therevised minimization procedures addressed the court’s concerns byrequiring the segregation of those communications most likely to involveunrelated or wholly domestic communications requiring special handlingand markings for those communications which could not be segregated andreducing the retention period of upstream collection from five years totwo. “With these modifications, the court found that thebalancing test required under the Fourth Amendment supported theconclusion that the search was constitutionally permissible.”