FISA & NDAA: A Tyrannical Power Couple

With Section 702 of the FISA scheduled to sunset by the end of 2023, congress scrambled to marry it up with the NDAA, which is terrifying.

December 18, 2023

By: Bobby Casey, Managing Director GWP

FISAOnce again, the US congress proves there is nothing more permanent than a “temporary government program”. Here we are, over twenty-two years after 9/11, and a lot of incriminating revelations about the police and surveillance state later, and still “national security” hangs delicately in the balance.

The Alphabet Bois have been weaponized against the American people for quite some time. People are angry and the general trust in the US government is at an all time abysmal low. Yet, the NDAA and Section 702 of the FISA passes.

FISA, or the Foreign Intelligence Surveillance Act, in theory is supposed to be directed toward people outside the US. That’s not at all how it shakes out in practice. Edward Snowden revealed that much. But there are far more recent studies and revelations than that.

The Wall Street Journal reported last year that millions of searches by the FBI under the guise of FISA 702 were conducted. To be fair, there’s a lot of duplication in that number. These aren’t unique individuals, but rather multiple broad searches that could sweep the same person up repeatedly

The FBI conducted approximately 3.39 million searches that included terms, also called identifiers, linked to a presumed U.S. person from Dec. 1, 2020, to Nov. 30, 2021, according to the report. The number of searches for the previous 12-month period was about 1.3 million.

This was the first time any intelligence agency of the US reported anything, however discrepant, since the enactment of the FISA.

To be fair, there’s a lot of duplication in that number. These aren’t unique individuals, but rather multiple broad searches that could sweep the same person up repeatedly. Still, no one knows the unduplicated number, and that it’s happening at all still is disconcerting.

Some congressional lawmakers have asked the FBI to disclose how often it taps into that data to look at U.S. information, arguing that doing so amounts to a backdoor search on Americans that dispenses with requirements to obtain a warrant.

The Electronic Privacy Information Center defines backdoor surveillance like this:

A warrantless backdoor search is a search of Americans’ communications “incidentally” collected under Section 702. Traditionally, the Fourth Amendment protects Americans against unreasonable and warrantless searches by domestic law enforcement agencies. Section 702 creates a loophole in the Fourth Amendment that allows the government, most notably the FBI, to keep the communications of Americans “incidentally” collected under Section 702 and search these communications without a warrant approved by a judge—even though these communications did not come from the targets of Section 702 surveillance.

Intelligence agencies are yet to seek a warrant or approval from the FISA courts since the enactment of Section 702. In fact, to the contrary, they’ve found it easier to ask for forgiveness than permission as they often just get a slap on the wrist and go right back to it.

Section 702 was enacted back in 2008 which gave the US government the authority to conduct warrantless surveillance of suspected foreign nationals. About three years later, Obama enacted NDAA, the National Defense Authorization Act, which allowed the US government to indefinitely detain someone without charges or a trial.

Reuters called out the violations around the 2016 and 2020 elections:

The [FISA] court ruling found the FBI violated rules around the use of the database, created under Section 702 of the FISA Act with its searches.

Specifically, the court found that searches as part of probes into crimes between 2016 and 2020 violated the rules because there was “no reasonable basis to expect they would return foreign intelligence or evidence of crime”, although the FBI believed this was “reasonably likely,” the decision said.

Defense One builds on this citing an even greater breadth of violations:

The agency has warrantlessly searched its databases to find communications of American protestors, racial justice activists, individuals suspected of involvement in the January 6 Capitol breach, 19,000 donors to a congressional campaign, and even members of Congress.

So when warrantless searches and indefinite detention give each other a special hug, what you get is nothing short of pure evil. Why do I keep bringing up the NDAA? What does that have to do with FISA Section 702?

Indeed. Section 702 will sunset this year on December 31st. Congress is up against the holidays, so they slipped an extension of Section 702 in the NDAA bill. The extension wasn’t actually necessary though, because of a provision within FISA that says: Section 702 surveillance can continue while an existing FISA Court authorization remains in effect—and the FISA Court has authorized Section 702 surveillance until April 11, 2024.

While the bill might sunset, the actual surveillance continues through April with or without the extension. So what gives with the extension? Defense One continues:

The biggest problem with the NDAA rider is not that it is unnecessary, but instead that it is a stealth longer-term extension that is dangerous for reform efforts. Although Section 702 supporters claim that the NDAA rider is only a four-month extension of the surveillance law, in practice, it will function as a 16-month extension—pushing this debate off until 2025. That’s because the government is very likely to seek a new annual authorization from the FISA Court in April, giving it another year to conduct surveillance under the same obscure provision in FISA.

This has nothing to do with national security and everything to do with preserving the surveillance and police state. They don’t want reforms to Section 702 because that would essentially make the bill “toothless”. The question is: who were they trying to bite with that bill then?

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