FISA Section 702 Might Sunset in 2023

The FBI might lose FISA Section 702 this year due to their unscrupulous abuse of it, negligence of protocols, and blatant constitutional violations.

May 1, 2023

B​y: Bobby Casey, Managing Director GWP

FISA 702 T​he government often touts itself as the one entity tirelessly looking out for the safety of all Americans. That’s what the police do. That’s what the military does. That’s what all the federal Alphabet Bois do.

But to keep everyone sold on this notion, or to remain relevant, they have to keep us in a state of uncertainty, fear, and suspicion that danger is just around the corner.

Couple that with broadening the bandwidth of what is considered a felony or “classified”, and you have a breeding ground for tyranny. For one thing, you have crooked politicians committing or allowing felonies and then hiding them behind their classification.

But even worse, if you keep making everything classified and you keep making everything a felony, you need to grow your teams to enforce all that.

And that’s what we are seeing. A few weeks ago when I wrote “Your Privacy for Their Secrets” it was pretty clear how individuals’ civil liberties get punished each time we find out about bad actors in government. We also saw how some 21 year old could get security clearance for what was apparently very sensitive information on Ukraine.

W​e are meant to prioritize the privacy of government over our own, and we are meant to protect government privacy with our own. Read that as many times as it takes for it to sink in.

A decade after the Edward Snowden revelations on US Intelligence Community spying on Americans unconstitutionally, the needles has not moved much in the way of improvement.

On April 27, House lawmakers heard from a panel of three individuals representing the Office of Inspector General, who oversee the FISA (Foreign Intelligence Surveillance Act). If you recall, this allows intelligence agencies to conduct surveillance on foreigners suspected of spying for a foreign power or belonging to a terrorist group.

A​ll three panelists confirmed that over 10,000 federal employees could have access to data revealed under FISA authority. That’s probably because of the FBIs abuse of FISA Section 702:

A court-ordered report released in May 2022 revealed that the FBI had made more than 3.3 million queries of Americans under FISA authority. This, in turn, prompted a crisis of confidence in the FBI’s respect for civil liberties among members of both parties.

W​hen audited, the FBI have consistently failed in their use of FISA. They have not followed the protocols in place, they have not provided the necessary due diligence, and/or often the information is not corroborated within the same case.

Rep. Andy Biggs (R-Ariz.) said in that hearing:

“FISA section 702 explicitly states that it may only be used to target non-U.S. persons located abroad for the purpose of obtaining foreign intelligence information. But it’s clear that the government has used communications acquired through this program to conduct backdoor searches of Americans’ communications.”

Although safeguards are in place to ensure that Americans’ civil liberties are being respected, Justice [Department Inspector General Michael] Horowitz and other panelists made clear that the IC has repeatedly failed to comply with these safeguards.

T​his is all happening under section 702 of the FISA which is set to expire by the end of the year. Wired Magazine goes into further detail regarding the FBI’s secondary use of data obtained under FISA authority (i.e. crimes in the US).

Elizabeth Goitein, senior director of the Brennan Center for Justice’s national security program at New York University School of Law, says that while troubling, the misuse was entirely predictable. “When the government is allowed to access Americans’ private communications without a warrant, that opens the door to surveillance based on race, religion, politics, or other impermissible factors,” she says.

That’s exactly what’s happened. American lawmakers, people of a certain political persuasion, and people of certain ethnicities have indeed been targeted.

Some violations include:

  • the FBI’s minimization procedures, “as they have been implemented,” were consistent with neither the FISA requirements nor the Fourth Amendment itself.

  • the FBI had conducted 40 queries without proper authorization related to a range of activities, from organized crime and health care fraud to public corruption and bribery.

  • an intelligence analyst had conducted “batch queries” of FISA-acquired information at the FBI’s request, using the personal information of “multiple current and former United States government officials, journalists, and political commentators.” While the analyst attempted to remove the US information, in some cases, it said, they “inadvertently failed” to do so.

T​he US “intelligence” community will be fighting with every fiber of their being to keep Section 702 and prevent its sunset at the end of this year.

The fact that they’ve demonstrated that they can’t even follow the basic safeguards currently in place suggests that more of them will be nothing more than theater.

The direction this all is taking is grim.

  • The private citizen is guilty until proven innocent, and has no right to know what’s happening with their tax dollars or within tax supported institutions.

  • The federal police state can continue to expand in the name of safety, and to suggest otherwise is unto itself criminal.

  • Our sensitive information and 4th amendment protected rights are disposable for the purposes of preserving these institutions and their invasive work.

I​f someone exposes government criminality by invading their privacy, that’s a felony. If the government exposes individual criminality by violating our 4th Amendment rights, what is that?

T​his is the expansion of secrecy in government and punishment in the rest of society.

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