FISA Revisited
-- By
JaylenBaxter - 01 Mar 2024
" Preserving the ability to listen to the world is indeed the only priority"
Indeed, the top priority of the US national security regime is to listen to the world. Only incidentally do national security interests promote the security of this nation, rather it is a catch-all term that provides just enough vagueness to cover plainly unconstitutional acts. In April, Congress had to decide between reforms, and instead of reforming the FISA spy program, it broadened the scope of the program with worrying implications for the privacy rights of all Americans. Now it has become a race for the FBI to prove the legality of their increased power.
In response to the expansion, the FBI urged its members to ramp up inquiries into US persons to prove compliance. FBI Deputy Director Paul Abbate emailed his employees on April 20 stating:
“To continue to demonstrate why tools like this are essential to our mission, we need to use them, while also holding ourselves accountable for doing so properly and in compliance with legal requirements…I urge everyone to continue to look for ways to appropriately use US person queries to advance the mission, with the added confidence that this new pre-approval requirement will help ensure that those queries are fully compliant with the law.”
The quiet part was said brazenly out loud–The FBI intends to surveil more Americans. What is unique this time around is that the surveillance is born out of a push to prove legality rather than the pursuit of a governmental goal (i.e. foreign surveillance). The purpose is not national security, but rather ompliance because having the ability to listen to the world must be legal and preserved.
Redefining the Subject and Self-Preservation
The comfortability in which intelligence houses and/or members of Congress can deem who is “communicating” with a terrorist is akin to vague definitions of the ‘other’ similar to the Salem Witch Trials, Red Scare, and the War on Drugs. Essentially, the data collection of terrorists is so broadly defined that the new status quo automatically assumes that if a US person was searched, it was because they were communicating with terrorists. Such a sly assumption destroys any distinction between terrorist and non-terrorist. The array of individuals who can now be classified under the new Section 702 extends far beyond the black-and-white criteria of American and Non-American (where privacy rights are distributed unequally), but rather the newly defined Section 702 Distinguishes Target (Terrorist) and Non-Target. However, unlike previous iterations, intelligence houses can collect the information of both because of the vague distinction.
Congress failed to protect the American people, and in response, it chose to protect itself. In the new 702, Congress requires the FBI to notify the member of Congress if a query involves their name, which is more protection than they would afford their fellow Americans. The double standard reveals that Congress is undoubtedly aware of the harm of US persons being in a query search, but has chosen their privacy interest over everyone else.
What Comes Next?
The most obvious answer is to wait until the renewal debate of April 2026 to begin advocating for similar reforms seen in April of this year including mandated FISA-court review of queries involving US persons, narrowing the type of queries the FBI can use, prohibiting certain queries, limiting what a service provider can offer to the government, etc.
Congress was evenly split in votes when adding the amendment to require warrants when the FBI searches the information of a US person, thus it will most likely be adopted upon reconsideration in April 2026. However, the real reform begins with abolishing the FISA court itself. No court should be designed outside of ethics, regulation, and public accountability, but the FISA court does and continues to do so. We must remember that among the mass of unwarranted surveillance, it is the FISA court that holds the FBI accountable with annual reports, however, their only backstop against corruption is self-regulation. No law, rule, or procedure is allowed to exist in the shadows, and neither should FISC. Undoubtedly, this would be a difficult amendment to pass as it would require the FISA system to be reworked entirely but it would not be impossible.
Instead of the FISA court, two additional federal courts should be created. The first, acting as a first stop for the government, would be similar to FISA Courts in purpose but would be a public court. This court would be used only for the express purpose of obtaining warrants when an FBI query involves a US person. The US person would need to be identified for due process purposes and the US person should have ample opportunity to defend themself against the unwarranted search, proving that it would be a violation. Though it would be a heavy burden on the defendant and highly factual, it would still provide transparency into who the FBI has targeted and why it involves the information of a US person. The second court would act as an appellate court to the first, in which an individual or the government would appeal the first court’s decision. Here, I believe is where the court can begin to classify information or use classified information in their proceedings and shield the opinion from the public.
All the while, congress held a “FISA Fest” and clinked glasses and mingled on the Wednesday after the renewal of Section 702.
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