A report released this week from the Justice Department showed that a secret federal court approved all 1,856 requests last year to physically search and/or electronically surveil people in the United States for “foreign intelligence purposes.”
Established under the Nixon administration, the Foreign Intelligence Surveillance Court gets its authority under the Foreign Intelligence Surveillance Act (FISA) of 1978, which Congress reauthorized for another five years last year — days before it would have expired.
Under FISA, the government is allowed to electronically eavesdrop on Americans phone calls and emails without a probable-cause warrant. Instead all that’s needed is one party to believe that an American citizen is communicating with someone outside the U.S.
While the extension of the legislation was presented to the American public as a way for the U.S. government to target terrorist groups like al-Qaeda, David Kris, a former top anti-terrorism attorney at the Justice Department, says the act gives the government too much power.
Kris said the language of 2012’s FISA Amendments Act gives the government “nearly-carte-blanche spying powers.” In the 2012 edition of “National Security Investigations and Prosecutions,” Kris explained how this works:
“For example, an authorization targeting ‘al Qaeda’ — which is a non-U.S. person located abroad — could allow the government to wiretap any telephone that it believes will yield information from or about al Qaeda, either because the telephone is registered to a person whom the government believes is affiliated with al Qaeda, or because the government believes that the person communicates with others who are affiliated with al Qaeda, regardless of the location of the telephone.”
The report was released to Senate Majority Leader Harry Reid (D-Nev.) and details the caseload of the Foreign Intelligence Surveillance Court, whose decisions are not public.
Of the 1,856 applications, 1,789 included requests for authority to conduct electronic surveillance in addition to a physical search. One of those requests was later withdrawn by the government.
Based on the figures in the report, there was a 5 percent increase in the number of surveillance requests in 2012 as compared to 2011 — but it wasn’t because more cases were denied in 2011. No request was denied either year, meaning requests to electronically surveil U.S. residents increased 5 percent last year.
The name of the person or group under surveillance doesn’t have to be identified, nor does the name of the facility where a person is under surveillance. The government doesn’t have to wait for the court to issue its approval either, as the government can legally begin surveillance a week before a request is even made.
Even if the court were to reject an application for surveillance, the law states that surveillance can continue during the appeals process.
Does the government have too much power?
The American Civil Liberties Union (ACLU), journalists and human rights groups have all tried to sue over this issue, but have been told they have no legal standing because they have no evidence they are being targeted by FISA.
The Supreme Court opted not to hear a challenge to the law in February about the FISA Amendments Act, but the courts have looked at a similar surveillance law.
In the same report, the Justice Department said the number of government-issued National Security Letters (NSLs) decreased from 16,511 in 2011 to 15,229 in 2012. The letters are written demands from the FBI to companies such as internet service providers, credit companies and financial institutions, asking for confidential records such as subscriber information, phone numbers, email addresses, websites visited and more.
Since the FISA Amendments Act allows the government to surveil a person without getting permission first, the drop in National Security Letters may be due to the FBI making more requests in the shadows created by that legislation.
The decline may also be due to the fact that the letters were declared unconstitutional in March, since they impede on free speech rights. The Obama administration was given 90 days to appeal the decision made by U.S. District Judge Susan Illston, to the Ninth Circuit Court of Appeals.