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NSA's illegal surveillance of Americans



http://www.nationalreview.com/article/447973/nsa-illegal-surveillance-americans-obama-administration-abuse-fisa-court-response

[partial quote follows]
The NSA intentionally and routinely intercepted communications of American citizens in violation of the Constitution. During the Obama years, the National Security Agency intentionally and routinely intercepted and reviewed communications of American citizens in violation of the Constitution and of court-ordered guidelines implemented pursuant to federal law. The unlawful surveillance appears to have been a massive abuse of the governmentâ??s foreign-intelligence-collection authority, carried out for the purpose of monitoring the communications of Americans in the United States. While aware that it was going on for an extensive period of time, the administration failed to disclose its unlawful surveillance of Americans until late October 2016, when the administration was winding down and the NSA needed to meet a court deadline in order to renew various surveillance authorities under the Foreign Intelligence Surveillance Act (FISA). The administrationâ??s stonewalling about the scope of the violation induced an exasperated Foreign Intelligence Surveillance Court to accuse the NSA of â??an institutional lack of candorâ?? in connection with what the court described as â??a very serious Fourth Amendment issue.â?? (The court is the federal tribunal created in 1978 by FISA; it is often referred to as a â??secret courtâ?? because proceedings before it are classified and ex parte â?? meaning only the Justice Department appears before the court.) The FISA-court opinion is now public, available here. The unlawful surveillance was first exposed in a report at Circa by John Solomon and Sara Carter, who have also gotten access to internal, classified reports. The story was also covered extensively Wednesday evening by James Rosen and Bret Baier on Fox Newsâ??s Special Report. According to the internal reports reviewed by Solomon and Carter, the illegal surveillance may involve more than 5 percent of NSA searches of databases derived from what is called â??upstreamâ?? collection of Internet communications. As the FISA court explains, upstream collection refers to the interception of communications â??as they transit the facilities of an Internet backbone carrier.â?? These are the data routes between computer networks. The routes are hosted by government, academic, commercial, and similar high-capacity network centers, and they facilitate the global, international exchange of Internet traffic. Upstream collection from the Internetâ??s â??backbone,â?? which accounts for about 9 percent of the NSAâ??s collection haul (a massive amount of communications), is distinguished from interception of communications from more familiar Internet service providers. Upstream collection is a vital tool for gathering intelligence against foreign threats to the United States. It is, of course, on foreign intelligence targets â?? non-U.S. persons situated outside the U.S. â?? that the NSA and CIA are supposed to focus. Foreign agents operating inside the U.S. are mainly the purview of the FBI, which conducts surveillance of their communications through warrants from the FISA court â?? individualized warrants based on probable cause that a specific person is acting as an agent of a foreign power. The NSA conducts vacuum intelligence-collection under a different section of FISA â?? section 702. It is inevitable that these section 702 surveillance authorities will incidentally intercept the communications of Americans inside the United States if those Americans are communicating with the foreign target. This does not raise serious Fourth Amendment concerns; after all, non-targeted Americans are intercepted all the time in traditional criminal wiretaps because they call, or are called by, the target. But FISA surveillance is more controversial than criminal surveillance because the government does not have to show probable cause of a crime â?? and when the targets are foreigners outside the U.S., the government does not have to make any showing; it may target if it has a legitimate foreign-intelligence purpose, which is really not much of a hurdle at all. So, as noted in coverage of the Obama administrationâ??s monitoring of Trump-campaign officials, FISA section 702 provides some privacy protection for Americans: The FISA court orders â??minimizationâ?? procedures, which require any incidentally intercepted Americanâ??s identity to be â??masked.â?? That is, the NSA must sanitize the raw data by concealing the identity of the American. Only the â??maskedâ?? version of the communication is provided to other U.S. intelligence agencies for purposes of generating reports and analyses. As I have previously explained, however, this system relies on the good faith of government officials in respecting privacy: There are gaping loopholes that permit American identities to be unmasked if, for example, the NSA or some other intelligence official decides doing so is necessary to understand the intelligence value of the communication. While that kind of incidental collection raises the concerns of privacy advocates, it is a small problem compared to upstream collection, the technology of which poses profound Fourth Amendment challenges.

Read more at: http://www.nationalreview.com/article/447973/nsa-illegal-surveillance-americans-obama-administration-abuse-fisa-court-response




 
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