Today's Article
A federal court once
hinted that the U.S.
government's
surveillance procedures
were 'deficient on
statutory and
constitutional grounds.'
The American Spark
Why Government Spying Is Inherently Bad

By Cliff Montgomery - Sept. 8th, 2016

Even though U.S. officials have long claimed that they utilize only a limited, minimal legal authority to collect
data on Internet communications, a secretive court authorized to oversee the activity once strongly hinted
that the government’s “minimization procedures [were] deficient on statutory and constitutional grounds,”
according to a little-known report on the matter published in April by the Congressional Research Service
(CRS).

Much of this information is already familiar to well-informed individuals, both in America and around the
globe; but it’s extremely important to remain mindful of these gross failings in government spying. The Fourth
Amendment - and thus your actual security - depends on it.


After the attacks of September 11, 2001, President George W. Bush authorized the National Security
Agency to conduct a Terrorist Surveillance Program (TSP) to ‘intercept international communications into and
out of the United States’ by ‘persons linked to al Qaeda or related terrorist organizations.’

“After the TSP activities were concluded in 2007, Congress enacted the Protect America Act (PAA, P.L. 110-
55), which established a mechanism for the acquisition, via a joint certification by the Director of National
Intelligence (DNI) and the Attorney General (AG), but without an individualized [i.e., actual] court order, of
foreign intelligence information concerning a person reasonably believed to be outside the United States.

“This temporary authority ultimately expired after approximately six months, on February 16, 2008.

“Several months later, Congress enacted the Foreign Intelligence Surveillance Act (FISA) Amendments Act
of 2008 (P.L. 110-261), which created separate procedures for targeting non - U.S. persons and U.S. persons
reasonably believed 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.

“Significant details 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 in summer 2013.

“According to a partially declassified 2011 opinion from the Foreign Intelligence Surveillance Court (FISC), the
National Security Agency (NSA) collected 250 million Internet communications per year under Section 702.

“Of these communications, 91% were acquired ‘directly from Internet Service Providers,’ using a mechanism
referred to as ‘PRISM collection.’

“The other 9% were acquired through what NSA calls ‘upstream collection,’ meaning acquisition while Internet
traffic is in transit from one unspecified location to another.

“In 2015, Congress enacted the USA FREEDOM Act (P.L. 114-23) to re-authorize and amend various
portions of FISA. While most of the amendments dealt with portions of FISA that were unrelated to Section
702, the act did include authority to continue surveillance of a non-U.S.person for 72 hours after the target is
reasonably believed to be within the United States, but only if a lapse in surveillance of the target would pose
a threat of death or serious bodily harm.

“A traditional FISA order for electronic surveillance must be obtained to continue surveillance after that
period.” [...]

FISC Opinions

“In August 2013, the Obama Administration partially declassified several opinions of the FISC regarding
collection activities under Section 702.

“The first of these opinions, dated October 3, 2011, evaluated the targeting and minimization procedures
proposed by the government to deal with new information regarding the scope of ‘upstream collection,’ in
which communications are acquired from Internet traffic that is in transit from one unspecified location to
another.

“Specifically, the government had recently discovered that its ‘upstream collection’ activities had acquired
unrelated international communications as well as wholly domestic communications due to technological
limitations.

“After being presented with this new information, the FISC found the proposed minimization procedures to be
deficient on statutory and constitutional grounds.

“With respect to the statutory requirements, the FISC noted that the government’s proposed minimization
procedures were focused ‘almost exclusively’ on information that an analyst wished to use and not on the
larger set of information that had been acquired.

“Consequently, communications that were known to be unrelated to a target, including those that were
potentially wholly domestic, could be retained for up to five years so long as the government was not seeking
to use that information.

“The court found that this had the effect of maximizing the retention of such information and [thus] was not
consistent 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.

“The FISC found that, under the facts before it, the balance required under the Fourth Amendment’s
reasonableness test did not favor the government, particularly in light of the statutory deficiencies.

“Following the 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.

“The revised minimization procedures addressed the court’s concerns by requiring the segregation of those
communications most likely to involve unrelated or wholly domestic communications; requiring special
handling and markings for those communications which could not be segregated; and reducing the retention
period of upstream collection from five years to two.

“With these modifications, the court found that the balancing test required under the Fourth Amendment
supported the conclusion that the search was constitutionally permissible.”



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