FISA court–which operates in secret and provides no real oversight–gave OK for vast scope of “foreign intelligence gathering.”.
The U.S. National Security Agency was given legal authority to gather communications covering nearly the entire globe, the Washington Post has revealed.
A 2010 classified document leaked by Edward Snowden and obtained by the Post shows that the secretive Foreign Intelligence Surveillance Court, known as the FISA court, gave the NSA allowance under section 702 of the FISA Amendments Act to intercept information that “concerns foreign powers” in all countries except the four that, with the United States, make up the “Five Eyes” alliance—the UK, Canada, Australia and New Zealand.
The list of the 193 countries includes Afghanistan, Bolivia, France, Israel, Russia, and Saudi Arabia, as well as the Palestinian Authority.
In addition to the list of nearly every country, the FISA court certificate granted NSA power to gather foreign intelligence on entities including the United Nations, the the World Bank, the International Monetary Fund, the Organization of the Petroleum Exporting Countries and PetroCaribe.
The Post notes that the agency “is not necessarily targeting all the countries or organizations” but “has only been given authority to do so.”
The Post also points to another document it obtained—an affidavit by then-NSA head Keith Alexander in support of the FISA certificate—which states that
the NSA believes that foreigners who will be targeted for collection “possess, are expected to receive and/or are likely to communicate foreign intelligence information concerning these foreign powers.”
That language could allow for surveillance of academics, journalists and human rights researchers.
“These documents show both the potential scope of the government’s surveillance activities and the exceedingly modest role the court plays in overseeing them,” Jameel Jaffer, deputy legal director for the American Civil Liberties Union, told the Post.
Privacy advocates have long highlighted this lack of real oversight by the FISA court, which operates in secret and, as Jay Stanley, Senior Policy Analyst with the ACLU Speech, Privacy & Technology Project noted in a blog post last year, whose “proceedings are ex parte (that is, there is no adversarial proceeding, the court only hears from one side).” He adds:
When a court issues an order in a normal adversarial court proceeding, one side in that case always has an incentive to watch the other like a hawk, and if the court’s orders are not carried out the judge is sure to hear about it from the aggrieved party. That is even true of criminal warrants that are issued ex parte; if the police exceed the scope of a warrant, a defendant can have any resulting evidence thrown out in court. But in the netherworld of the NSA, the FISA Court appears to be sending its orders into a black hole, with no way of finding out whether they are being complied with. Except through self-reporting.
In addition, Independent journalist Marcy Wheeler writes, the Post reporting belies suggestions made by the U.S. government “since day one, that Section 702 was narrowly deployed, not available to use against all but our 4 closest spying allies.”