FISA Court Rolls Over, Plays Dead – excerpt from Forbes article

A newly declassified opinion shows FISA court “oversight” in the face of egregious, unconstitutional and potentially criminal government misconduct means nothing.

Last week, thanks to the Electronic Frontier Foundation’s excellent FOIA work, we got the gift of a newly declassified 2011 FISA court opinion. The opinion finds that the government misled the FISA court for over three years about the details of its illegal and unconstitutional surveillance programs.  These lies hid from the court the fact that every year, the NSA is collecting at least 56,000 emails – and possibly many more — between innocent Americans who have no foreign connections and are suspected of no crimes.  That’s bad, but the worst part of it is, when the government’s lies were finally exposed the FISA court demanded …  that NSA analysts read our private messages right away, so they can be used or deleted more quickly. In other words, the government got not a slap on the wrist, but a pat on the back. President Obama and his intelligence officials keep telling us that we shouldn’t worry about NSA mass surveillance because the FISA Court is there to keep the NSA honest. Well, not so much.

Some background:

The NSA has been collecting the contents of Americans’ communications with people overseas since before the FISA Amendments Act of 2008 (FAA). The FAA legalized the practice and brought it under FISA court supervision. Under the FAA, the NSA is allowed to “target” foreigners reasonably believed to be outside the U.S. for foreign intelligence purposes.  “Targets” are the people or entities from, to or about which, the NSA seeks information. But the NSA’s surveillance isn’t limited to messages to or from “targets”. The NSA may also look at messages of people who are communicating about a target, so long as one of the communicants is reasonably believed to be outside the U.S. The only messages the FAA says are categorically off-limits are those which the NSA knows in advance to be purely domestic – i.e., between only Americans.

Since 2008, the FISA court was under the impression – courtesy of the NSA’s assurances in numerous submissions to the court – that the agency’s surveillance system pulled one message at a time out of the ocean of data flowing over fiber optic cables, and that the procedures the NSA used to select messages for collection were quite accurate in both capturing only relevant messages and in avoiding the forbidden purely domestic communications.

Turns out, that’s all wrong. NSA’s systems don’t always pull single messages; rather, they regularly capture what the agency, with characteristic opacity, refers to as “Internet transactions.”  An “Internet transaction” may be comprised of a single message –  an “SCT”, in NSA-speak.  But Internet transactions often contain multiple messages – the agency refers to this bundle of messages as an “MCT”. If only one message in an MCT is responsive to the NSA’s targeting terms, the NSA devices nonetheless pull the entire package of messages into the NSA databases. Further, MCTs can contain messages that have nothing to do with foreigners or foreign intelligence.  NSA’s internal auditing, done at the FISA judge version of gunpoint, puts the number of improperly collected wholly domestic American messages at approximately 56,000 a year.

To read the full article go to: http://www.forbes.com/sites/jennifergranick/2013/08/28/fisa-court-rolls-over-plays-dead/

To read Granick’s previous Forbes article “My Dinner with NSA Director Keith Alexander,” go to http://www.forbes.com/sites/jennifergranick/2013/08/22/my-dinner-with-general-alexander/