The Foreign Intelligence Surveillance Act of 1978 (FISA) established a panel of judges (the Foreign Intelligence Surveillance Court) who were empowered to issue warrants to federal government organizations, including the National Security Agency, to enable them to listen in on the conversations of American citizens or residents who were speaking to foreign nationals overseas or between two foreigners if the communications were intercepted at a hub located in the United States. As originally construed, there had to be a foreign intelligence angle to the investigation and the activity would be limited to the monitoring of agents of foreign countries and their contacts. The intention of FISA was to protect against egregious violations of the Fourth Amendment’s guarantee that Americans should have a “reasonable expectation of privacy” while avoiding the complications resulting from constitutional standards for what constitutes a legal search, i.e., that there be probable cause, that the court should know the name of the target, and that a fixed time frame for the activity be established. FISA lowered the bar of probable cause in general because of the supposed involvement of foreign governments, requiring only suspicion of possible illegal activity rather than demonstrating that a crime had been committed or was being planned, which was the normal basis for issuing a warrant. Fishing expeditions in which numerous communications lines were monitored in an attempt to find something incriminating were forbidden.
But, as in so many other areas, 9/11 changed all that. Even though FISA authorized the government to initiate a surveillance on its own authority for up to 72 hours without any warrant or judicial review in cases where immediate action was justified, the Bush administration complained that the procedure was too slow and unresponsive when a terrorist threat might be developing. As a result, the restraint on what is referred to as bulk collection of communications information was ended by Congress with the passage of the FISA Amendments Act of 2008, which was specifically intended to legalize the NSA’s warrantless wiretap program. The Amendments Act dropped the requirement for an actual warrant and permitted the government to certify that bulk collection activity was in support of a foreign counterintelligence program. It also allowed the attorney general and the director of national intelligence to claim broad authority to justify such action, citing, for example, a target as poorly defined as “al-Qaeda activity in Europe” or “residents of Belgium” as the objective of the search. The court would then accept the government certification as justification for the surveillance activity. The Justice Department, for its part, agreed as part of the Amendments Act to “minimize” the number of American citizens affected by the law and to retain information obtained for a limited time period. Both pledges have been largely ignored. The government also committed itself to not intentionally target American citizens, though it is free to follow up on “incidental interceptions,” or communications linkages that inadvertently involve Americans. That means in reality that the government has de facto authority to conduct unrestricted electronic and communications surveillance of anyone worldwide.
What this means is that the NSA, like an enormous vacuum cleaner, is monitoring nearly all electronic and voice communications in real time and storing the information that is not used immediately. The volume collected cannot even be calculated. When Sens. Ron Wyden and Mark Udall asked for the number of American citizens whose communications had been intercepted, the NSA replied that to release such information would be an invasion of privacy for the people who had been spied on and that such “an estimate was beyond [its] capacity.” The computers that carry out the actual work collect the information through intruding into communications servers and intercepting satellite transmissions. The computers then sweep through the information using sophisticated data-mining algorithms, frequently looking for key words and numbers that connect to areas of interest, and route selected information to analysts for further study. The rest of the information, including detailed phone and Internet records for many American citizens, is stored. And, far from minimizing the use of the data, the government claims the right to use the information collected by the NSA for purposes other than national security. Section 1801(h)(3) of the Amendments Act specifically authorizes the exploitation of information collected by warrantless surveillance to support prosecution for offenses that are completely unrelated to foreign intelligence.
When the Amendments Act was passed, it came with a sunset provision. Congress understood that it should be a temporary measure because it raised some serious constitutional issues relating to privacy. The Act was to be allowed to expire after four years, but its persistence is testament to the fact that the government will never willingly give up powers that it has acquired. The Act is now up for re-approval by the Senate, and President Barack Obama, who ran for office promising greater transparency and accountability in government, strongly supports the extension. He is confident that he has enough votes for passage, so we the American people should assume that warrantless wiretapping will be endorsed for another four years and no one’s communications will be safe from government intrusion.
While the legal problem relating to renewing the Amendments Act is evident — that it is a violation of the Fourth Amendment — far less clear is what the Act actually accomplishes. So much information is collected that it is virtually unusable. Analysts at the CIA, the NSA, and the FBI are overwhelmed with information that has little in the way of specificity and frequently is without any context. The government claims that the program is a vital tool in its fight against terrorism but does not make any effort to back up its assertion, citing the necessity for secrecy as a limiting factor. Has the data-mining operation led to the failure of any terrorist plot? Has it led to the arrests of any actual terrorists capable of carrying out a bombing? Or is it just a tool for collecting a lot of essentially useless information on citizens and foreigners who are completely innocent? These are critical questions because the violation of the Constitution is serious business and can only be justified, if at all, if a visible and demonstrable threat is being addressed and an enormous net gain in security is achieved. I see no evidence of that, which suggests that an astonishingly expensive program is being retained as a political gesture in an election year because officials want to burnish their national security credentials, not because the program has any value.