An organization that specializes in issues of privacy, the Electronic Frontier Foundation, says that even the judges on America’s secret surveillance court many times don’t have enough information to understand the cases on which they are ruling.
The Foreign Intelligence Surveillance Court has been in the news in recent months because of its involvement in the original investigation of Russian influence on the 2016 presidential election.
It allowed the administration of Democrat Barack Obama to spy on the campaign of Republican candidate Donald Trump based largely on the unverified, anti-Trump “dossier” from anonymous Russian sources funded by Hillary Clinton’s campaign and the Democratic National Committee.
The court was set up specifically to rule on surveillance operations by the intelligence community.
The EFF has an ongoing Freedom of Information Act lawsuit to obtain information handled by the FISC.
A number of FISC opinions have been released to EFF but only after being heavily redacted.
“In the United States, a secret federal surveillance court approves some of the government’s most enormous, opaque spying programs. It is near-impossible for the public to learn the details about these programs, but, as it turns out, even the court has trouble, too,” EFF said in its report.
“According to new opinions obtained by EFF last month, the Foreign Intelligence Surveillance Court struggled to get full accounts of the government’s misuse of its spying powers for years. After learning about the misuse, the court also struggled to rein it in.”
The government’s “obfuscation of its activities” made it hard for the court’s members “to grasp the scope of the problems.”
EFF continued, “Although many of the newly released opinions appear to be decisions approving surveillance and searches of particular individuals, several raise questions about how well equipped judges are to protect individuals’ statutory and constitutional rights when the government is less than candid with the court.”
For example, Judge Thomas F. Hogan, who was with the court from 2009-2016 and was chief judge in 2014 to 2016, came across a case in which the government exceeded an earlier order and did surveillance it for which it was not authorized.
Then the government argued it only violated “minimization procedures,” which specify how the information can be used, “not the collection of it.”
Hogan “expressed frustration both with the government’s argument and with its lack of candor, as the court believed officials had previously acknowledged that the surveillance was unauthorized,” EFF said.
The result? The court said the surveillance was unauthorized.
“It went on to note that the government’s failure to meet FISA’s requirements also inhibited the court’s ability to do its job.
“The court was deprived of an adequate understanding of the facts known to the NSA and, even if the government were correct that acquisition [redacted] was authorized, a clear and express record of that authorization is lacking,” the report said.
The court’s current controversies revolve around the submissions by federal agencies, the FBI and DOJ of the “dossier.”
“The government has exhibited a chronic tendency to mis-describe the actual scope of NSA acquisitions in its submissions to this court,” the ruling said. “These inaccuracies have previously contributed to unauthorized electronic surveillance and other forms of statutory and constitutional deficiency.”
Another redacted document suggests that “government officials knowingly collected information about individuals that the court never approved.”
“It is at least troubling that, once the NSA and the Department of Justice had finally recognized that unauthorized surveillance was being conducted, they failed to take prompt measures to discontinue the surveillance, or even to obtain prospective authorization for the already-ongoing collection.”
In another document, EFF explains, Hogan pointed out the FBI used “ambiguous language” to do surveillance that was not authorized.
“Although the specifics of the incident are unclear, it appears as though the FISC had previously authorized surveillance of a particular target and identified certain communications providers – such as those that provide email, phone, or messaging services – in the order that would be surveilled. The FBI later informed the court that it had engaged in ‘roving electronic surveillance’ and targeted other communications providers. The court was concerned that the roving surveillance ‘may have exceeded the scope of the authorization reflected’ in the earlier order,” EFF said.
The redactions make some details unclear, but EFF said the court also was concerned about capturing the contents of communications, as well as accompanying orders that officers may search a property “without consent of the owner.”
“Obtaining these FISC opinions is extraordinarily important, both for government transparency and for understanding how the nation’s intelligence agencies have gone beyond what even the secret surveillance court has authorized,” EFF said.