Tag Archives: Foreign Intelligence Surveillance Court

Unstoppable: How the FBI Mines Personal Information

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The Federal Bureau of Investigation’s access to a controversial intelligence trove of intercepted emails, texts, and other electronic data should be curtailed following serial missteps that have damaged public and congressional trust in the surveillance tool, a White House panel of intelligence advisers has concluded. in July 2023. The recommendation and others made by the panel come as a challenge to the Biden administration, which has spent months aggressively lobbying lawmakers to preserve the spying program, which is set to expire at the end of 2023. At issue is the FBI’s access to a cache of data collected under what is known as Section 702 of the Foreign Intelligence Surveillance Act.(FISA)..Top Biden administration officials have said the program—classified details of which were revealed 10 years ago by former intelligence contractor Edward Snowden—is among the most vital national security tools in their possession, critical to preventing terrorism, thwarting cyberattacks and understanding the aims of adversaries such as China and Russia. It allows the National Security Agency to siphon streams of electronic data from U.S. technology providers such as Meta and Apple. The data, collected in intelligence repositories, can then be searched without a warrant by spy agencies including the FBI, which has a robust counterintelligence mission.

The board was critical of the FBI’s history of wrongfully plumbing American data in the Section 702 trove, which have included improper searches of George Floyd protesters and sitting lawmakers, and said reforms needed to be adopted and codified in law.

Excerpts from Dustin Volz, FBI Access to Spying Tool Should Be Restricted, Panel Advises, WSJ, July 31, 2023
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The Law of the Jungle for Personal Data: Who Benefits?

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The vast amount of Americans’ personal data available for sale has provided a rich stream of intelligence for the U.S. government but created significant threats to privacy, according to a newly released report by the U.S.’s top spy agency. Commercially available information, or CAI, has grown in such scale that it has begun to replicate the results of intrusive surveillance techniques once used on a more targeted and limited basis, the report found. “In a way that far fewer Americans seem to understand, and even fewer of them can avoid, CAI includes information on nearly everyone that is of a type and level of sensitivity that historically could have been obtained” through targeted collection methods such as wiretaps, cyber espionage or physical surveillance, the report concluded. 

In recent years, data brokers’ offerings have grown from basic address history and demographic information to include the trail of information generated by smartphone devices and apps, social-media platforms, automobiles and location trackers such as fitness watches. Such detailed information can now “cause harm to an individual’s reputation, emotional well-being, or physical safety,” said the report, which urged the intelligence community to develop better policies, procedures and safeguards around its acquisition of such information.  Virtually anyone can purchase the data, and the marketplace is loosely regulated in the U.S., which has no comprehensive national privacy law. 

Much of that data is sold to the government by vendors who claim it is “anonymized”—stripped of personal information such as names or addresses. But privacy advocates and researchers say that in the case of geolocation information on phones or cars, a name can often be inferred: Individuals typically park their cars at night and set down their phones at their homes. In the case of certain internet data, browsing behavior also can reveal personal information.

“If the government can buy its way around Fourth Amendment due-process, there will be few meaningful limits on government surveillance,” Wyden said in a statement, referring to the U.S. Constitution’s protections against “unreasonable searches and seizures.”

Excerpts from Byron Tau and Dustin Volz, U.S. Spy Agencies Buy Vast Quantities of Americans’ Personal Data, WSJ,, June 13, 2023

Fear of the Enemy Within: Unrestricted Surveillance

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The Supreme Court declined to hear a constitutional challenge to a secretive government surveillance program, dealing a setback to privacy groups including the American Civil Liberties Union ahead of a looming debate in Congress over whether to renew the law that authorizes the intelligence tool.

In a brief order issued on February 2023, the high court said it wouldn’t hear arguments challenging the legality of the National Security Agency program known as “Upstream,” in which the intelligence agency collects and monitors internet communications without obtaining search warrants. Classified details about the program were among those exposed a decade ago by former intelligence contractor Edward Snowden, who has been charged with theft of government property and violating espionage laws and lives in Russia.

The legal challenge was brought by Wikimedia, the nonprofit owner of the Wikipedia online encyclopedia. Wikimedia was represented by lawyers at the ACLU, Cooley LLP and the Knight First Amendment Institute at Columbia University. Wikimedia’s lawyers urged the high court to rein in the “state secrets privilege,” a legal doctrine that allows the government to shut down lawsuits that could jeopardize sensitive national-security information. 

“The Supreme Court’s refusal to grant our petition strikes a blow against an individual’s right to privacy and freedom of expression—two cornerstones of our society and the building blocks of Wikipedia,” said James Buatti, Wikimedia’s legal director, in a statement.

Excerpts from  Jan Wolfe  and Dustin Volz, Justices Won’t Hear Challenged to NSA Surveillance, Feb. 22, 2023

FISA Court and Transparency

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According to the Opinion of Judge F. Dennis Saylor of the FISA (Foreign Intelligence Surveillance) court, of Sept. 13, 2013 in response to a motion by the ACLU for release of certain opinions of the FISA court:

“The unauthorized disclosure in June 2013 [Edward Snowden disclosure] of a Section 215 order, and government statements in response to that disclosure, have engendered considerable public interest and debate about Section 215 of the Partiot Act. Publication of FISC opinions relating to this provision would contribute to an informed debate. Congressional amici emphasize the value public information and debate in representing their constituents and discharging their legislative responsibilities. Publication would also assure citizens of the integrity of this Court’s proceedings.

In addition, publication with only limited redactions may now be feasible, given the extent of the government’s recent public disclosures about how Section 215 is implemented. Indeed, the government advises that a declassification review process is already underway.  In view of these circumstances, and as an exercise of discretion, the Court has determinedthat it is appropriate to take steps toward publication of any Section 215 Opinions that are not subject to the ongoing FOIA litigation…”

Excerpt, See United States Foreign Intelligence Surveillance Court, In Re Orders of this Court Interpreting Section 215 of the Patriot Act, Docket No. Misc. 13-02