What Exactly Is A FISA Court and What Does It Do?

If there is a silver lining to the President of the United States acting like a child online, it is the fact that he has increased the public’s awareness about Government mass surveillance. While Donald Trump may have Tweeted out “fake news” when he said he was “wiretapped” by President Obama on the campaign trail, he did bring up an important issue that is certainly worthy of more conversation.

It is a general fact that, dating back to the Patriot Act of 2001, the United States Government has illegally and unconstitutionally spied on American citizens for decades. In fact, you may or may not remember that in the Fall of 2015 Congress had to revoke spy privileges granted to the NSA after evidence came to light revealing how the agency had collected phone records on over 300 million Americans. If you are unaware, the population of the United States is estimated to be just over 330 million. This means that there is a 92% chance any person living in this country has been “wiretapped” by the United States Government, including Donald Trump.

The important thing to remember is that despite his wealth and fame, Donald Trump was a private citizen at the time all of this was occurring – no different from anyone else. As someone whom has been writing about this issue for for years I am completely perplexed why so many Americans are suddenly outraged that Trump was spied on, but no one seems to care that they were also personally spied upon.  I know Trump’s supporters are passionate and everything, it just doesn’t make any sense to me.

Regardless, in all of the news coverage surrounding his infamous Tweet, you might have heard about how all of this spying activity is being traced back to something known as a FISA court, a court used by various Government agencies to spy on foreign citizens in the name of “National Security.

Ironically though, while the majority of targets which come through the court are foreign citizens living outside US borders, considering that every Federal Agency has the authority to track people to the 5th degree, many American citizens “incidentally” get caught up in the surveillance net as these investigations play themselves out – this includes US citizens and even active US politicians.

What is a FISA Court?

The US Foreign Surveillance Intelligence Court (FISC or the FISA Court) was established by Congress in 1978 with the intent of “entertaining applications submitted by the United States Government for approval of electronic surveillance, physical search, and other investigative actions for foreign intelligence purposes.

Memo’s released by Reuters reveal that in 2014 the FBI and NSA were granted 100% of all warrant request brought in front of the court and in 2015 alone, the court was presented with 1,457 “surveillance requests” and did not deny a single application. If you think this may be an anomaly, you are mistaken. Since the FISA court was first established in 1978, only 11 applications out of 33,942 have been denied – a historical approval rate of 99.96%.

34,000 requests might not seem like a high number, but tracking to the 5th degree literally encompasses 100’s of millions of people. 5th degree means that based off a single warrant for one person, the US Government can spy on and collect the records of every person who has had contact with that person – that is the 1st degree. Then the US Government can spy on and collect the records of all the people who have had contact with any of those people, that is the 2nd degree. Then they can spy on and collect the records of any person who has had contact with any of those people, that is the 3rd degree – so on and so forth through the 5th degree.

As you can see, the approval of just one warrant is actually a de facto warrant for hundreds of thousands of people – the vast majority of which having nothing whatsoever to do with the original target of that warrant. This explains how members of Congress and even Donald Trump’s personal data have eventually shown up in surveillance records tied to this court.

How Is A Target Identified By This Court?

According to the Office of the Director of National Intelligence, a “target is defined as the individual person, group, entity comprised of multiple individuals, or foreign power that uses the selector, such as a telephone number or email address.”  To be fair, the US Intelligence Community claims that they limit their targets to a “person, group, or entity reasonably believed to be located outside the United States and who possesses, or who is likely to communicate or receive, foreign intelligence information.

However, as many of these targets are “unintentionally acquired” as a result of the NSA’s PRISM Program and by tracking people to the 5th degree, there is no true definition or guideline in existence for what an “official” target really is. Moreover, considering that national intelligence records are often classified, no one can even say for certain the number of people who wind up targeted by these investigations or how much information the different agencies collect on them.

The Irony of Being A “Foreign” Court

As previously mentioned the “F” in FISA stands for “Foreign,” but it is not just foreign citizens that come before this court. FISA Courts are also tasked with processing National Security Letters for various agencies, many of which identify domestic targets inside the United States.

A National Security Letter (NSL) is a “request for information form a third party that is issued by the FBI or by other government agencies with authority to conduct national security investigations” into specific individuals. These letters grant Government agencies the authority to collect “subscriber information; toll billing records; internet service provider (ISP) login records; electronic communication transaction records; financial records; money transfers; credit records, and other consumer identifying information” on any persons indicated by the letter – either foreign or domestic.

Even though the FISA court was once primarily tasked with with processing warrant request on foreign citizens, the court now ends up processing more National Security Letters than anything else. For example, as referenced by the memos from Reuters linked above, the FBI asked for 48,642 NSL’s in 2015 alone. Unsurprisingly, the court granted 100% of them.

 It just so happens that 9,418 of these requests targeted American citizens or recent immigrants to the country.  In addition to this, the FBI also requested partial NSL’s to collect “subscriber information” on 3,746 other US citizens.

None of this is to mention all the other requests made to the court by various Intelligence agencies, which is strictly classified.

What Else Have We Learned About This Court Since 2013?

President Obama once pledged to “have the most transparent Administration in US history” and in the eyes of many journalists, one of his greatest successes was the passing of the USA Freedom Act in 2013.

The US Freedom Act requires all Federal agencies, including the CIA and NSA, to release “certain business records, conduct electronic surveillance, use pen registers and trap and trace devices, and use other forms of information” directly gathered as a result of “foreign intelligence, counter-terrorism, and criminal” investigations. Such as those covered by the US FISA Court.

Last year, in compliance with the US Freedom Act on May 2nd 2016, the U.S. Intelligence Community released their annual transparency report. While the report covers a wide array of information that I advice everyone to browse through, for the purposes of this article the report exposed how the US FISA Court has literally doubled the number of surveillance requests upon American citizens  since the Act was first passed in 2013 – a disturbing trend.

These figures should also to be taken with a grain of salt, these are just the statistics that the federal government is willing to release. All the targets listed in the transparency report are likely individuals whom were investigated and were found to pose little to no threat to the country, or people who are no longer under investigation.

I point this out because one of the US Governments most expansive/comprehensive spying programs is known as the NSA PRISM Program. If you are unfamiliar with PRISM, the number of people spied upon, either directly or indirectly, is shielded by “national security.” Meaning that the exact number of individuals involved and the scope of the material collected is strictly classified – Congress doesn’t even know this information.

This means the number of targets collected inside the US and out is far higher than the Transparency Report will ever indicate.

Why Should You Be Concerned About This Court?

What should be frightening to you is the sheer volume of warrants granted by the court, comparable to the number of days the court actually operates. We are talking about tens of thousands of surveillance requests brought in front of the court in a calendar year, with a historical approval rating of 99.96%. Do you really think this court reads thousands of pages of information every day or actually investigates/questions why every individual person needs investigating in the first place?

The answer is no, the court just assumes all the information brought in front of it is trustworthy – because it was brought to them by other Government Agencies. After-all, if you work for the US Government you must automatically be a trustworthy and morally upstanding person – right?

The fact of the matter is that there is no over-site or accountability in this process and the court blindly signs thousands of surveillance requests every day, never questioning what they are actually signing in the first place. This process has been going on since 1978 and it is just unfortunate that it took a piece of fake news Tweeted out by the President for people to actually start caring about any of this.



Categories: Politics

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