Tag: fisa

Court Rules Warrantless Section 702 Searches Violated the Fourth Amendment

In a long-awaited ruling in United States v. Hasbajrami, the U.S. District Court for the Eastern District of New York last night held that warrantless queries — or searches — conducted under Section 702 of the Foreign Intelligence Surveillance Act violated the Fourth Amendment. The ruling is the first of its kind, and it follows years of public revelations about how Section 702 has been used by the government to conduct warrantless surveillance of Americans, including protesters, members of Congress, and journalists.

The court’s opinion addresses numerous queries the FBI conducted of the defendant, Mr. Agron Hasbajrami, during an investigation years ago. The government initially hid its use of Section 702 in Mr. Hasbajrami’s case and others, reversing course only after the Department of Justice’s policy of wrongly concealing Section 702 surveillance in criminal cases came to light.

“This is a major constitutional ruling on one of the most abused provisions of FISA,” said Patrick Toomey, deputy director of ACLU’s National Security Project. “As the court recognized, the FBI’s rampant digital searches of Americans are an immense invasion of privacy, and trigger the bedrock protections of the Fourth Amendment. Section 702 is long overdue for reform by Congress, and this opinion shows why.”

The decision follows a groundbreaking 2019 ruling by the Second Circuit Court of Appeals, which recognized that Section 702 queries of people in the United States are searches that trigger separate Fourth Amendment scrutiny. The court of appeals sent the case back to the lower court for further constitutional analysis, culminating in yesterday’s ruling. While the new opinion holds that the FBI’s Section 702 queries violated the Fourth Amendment, the court ultimately denied the defendant’s motion to suppress the resulting evidence on separate grounds.

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The Predictable Capitulation of Tulsi Gabbard

Well, Tulsi Gabbard now says she is all for the unconstitutional law that permits the national security state to surveil Americans without obtaining legal warrants beforehand — a law Donald Trump’s nominee for director of national intelligence has previously and vigorously pledged to repeal.

As President-elect Trump’s inauguration approaches and his cabinet appointments will be confirmed or rejected in Senate hearings, Gabbard’s in-your-face betrayal of public trust ought to focus our minds very sharply and very fast. Some of these minds, I will say straightaway, have drifted far from reality since Trump began announcing his nominees. This was especially so in the case of Gabbard. 

As soon as Trump proposed Gabbard as his DNI, the shared expectation in some quarters, most of whose inhabitants I respect, was that she would — singlehandedly, I gathered from the commentaries — bring the hydra-headed monster euphemistically called “the intelligence community” under some semblance of political-civilian control. 

And now this: Professing support for Section 702 of the Foreign Intelligence Surveillance Act after opposing it for years, Gabbard seems to have shocked a lot of people. Reading this in the large, she has just told America it’s the same old imperium after all.  

Shall we join to sing “Up, Up, and Away” now that all the beautiful balloons have fallen to Earth and the world’s not a nicer place and doesn’t wear a nicer face?

Until her stunning volte-face last weekend, Gabbard had been single-mindedly steadfast in her opposition to many FISA provisions, notably but not only Section 702. A lot of people, I among them, put this among the most significant positions Gabbard, the former congresswoman, had taken on any policy question.

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Gabbard reverses course on key intel-gathering tool as nomination teeters

Former Rep. Tulsi Gabbard (Hawaii), President-elect Donald Trump’s nominee for director of national intelligence, is changing her tune on a key intelligence-gathering authority she once sought to repeal as her Senate confirmation hangs in the balance.

Gabbard’s past criticisms of Section 702 of the Foreign Intelligence Surveillance Act have emerged as a central issue in her confirmation process, leaving GOP senators — including some in leadership — increasingly skeptical about the former Democrat’s confirmation prospects.

In her first public comments since being nominated, Gabbard told us in an exclusive statement that she now supports Section 702, saying the program is “crucial” and “must be safeguarded to protect our nation while ensuring the civil liberties of Americans.”

“If confirmed as DNI, I will uphold Americans’ Fourth Amendment rights while maintaining vital national security tools like Section 702 to ensure the safety and freedom of the American people,” Gabbard said.

In private meetings, senators are questioning Gabbard about legislation she introduced in 2020 that would repeal Section 702.

However, Gabbard now appears to be walking that back, citing Fourth Amendment protections implemented since then to prevent the incidental collection of Americans’ data:

“My prior concerns about FISA were based on insufficient protections for civil liberties, particularly regarding the FBI’s misuse of warrantless search powers on American citizens. Significant FISA reforms have been enacted since my time in Congress to address these issues.”

Inside Gabbard’s Senate meetings: Multiple senators from both parties who met with the former Hawaii lawmaker in recent days told us they emerged from those sessions unsure about Gabbard’s position on the 702 program. During these meetings, senators have pressed Gabbard on her previous public statements on the issue, as well as her votes against 702 reauthorization throughout her eight years in Congress.

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After Expanding Warrantless Surveillance The FBI Is Playing Politics With Your Privacy

A bombshell report from WIRED reveals that two days after the U.S. Congress renewed and expanded the mass-surveillance authority Section 702 of the Foreign Intelligence Surveillance Act, the deputy director of the Federal Bureau of Investigation (FBI), Paul Abbate, sent an email imploring agents to “use” Section 702 to search the communications of Americans collected under this authority “to demonstrate why tools like this are essential” to the FBI’s mission.

In other words, an agency that has repeatedly abused this exact authority—with 3.4 million warrantless searches of Americans’ communications in 2021 alone, thinks that the answer to its misuse of mass surveillance of Americans is to do more of it, not less. And it signals that the FBI believes it should do more surveillance–not because of any pressing national security threat—but because the FBI has an image problem.

The American people should feel a fiery volcano of white hot rage over this revelation. During the recent fight over Section 702’s reauthorization, we all had to listen to the FBI and the rest of the Intelligence Community downplay their huge number of Section 702 abuses (but, never fear, they were fixed by drop-down menus!). The government also trotted out every monster of the week in incorrect arguments seeking to undermine the bipartisan push for crucial reforms. Ultimately, after fighting to a draw in the House, Congress bent to the government’s will: it not only failed to reform Section 702, but gave the government authority to use Section 702 in more cases.

Now, immediately after extracting this expanded power and fighting off sensible reforms, the FBI’s leadership is urging the agency to “continue to look for ways” to make more use of this controversial authority to surveil Americans, albeit with the fig leaf that it must be “legal.” And not because of an identifiable, pressing threat to national security, but to “demonstrate” the importance of domestic law enforcement accessing the pool of data collected via mass surveillance. This is an insult to everyone who cares about accountability, civil liberties, and our ability to have a private conversation online. It also raises the question of whether the FBI is interested in keeping us safe or in merely justifying its own increased powers.

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Senate Passes FISA Reauthorization in Late-Night Vote

The Senate in the early hours of April 20 voted to reauthorize a controversial spying power that briefly lapsed after a late-night vote series.

The Reforming Intelligence and Securing America Act, which reauthorizes Section 702 of the Foreign Intelligence Surveillance Act (FISA) for two years, passed in a 60–34 vote that concluded 45 minutes after the 12 a.m. ET deadline.

The bill, passed earlier in the week by the House, will now go to President Joe Biden’s desk. He’s called the reauthorization of the program “critical,” and is expected to swiftly sign the bill into law.

The vote came after lingering disagreements over the controversial surveillance program had Senate leadership scrambling to strike a deal on the rules of debate and amendments.

Lawmakers took votes on a series of amendments that would strengthen civil liberty protections.

However, none of these—including an amendment by Sen. Dick Durbin (D-Ill.) to require a warrant to search Americans’ Section 702 data and another by Sen. Rand Paul (R-Ky.) to prohibit federal law enforcement from purchasing Americans’ data from third-party brokers—were passed by the Senate.

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How the FISA Reauthorization Bill Could Force Maintenance Workers and Custodians To Become Government Spies

Tech companies and First Amendment groups are calling attention to a provision in a domestic spying bill that they say would significantly expand the federal government’s power to snoop on Americans’ digital communications—potentially by forcing employees of private businesses to become informants.

The Information Technology Industry Council (ITI), a global trade group that represents major tech companies including Google and Microsoft, is calling for last-minute changes to the Reforming Intelligence and Securing America Act (RISAA), which could get a final vote in the Senate on Friday. The bill’s primary purpose is to extend Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows U.S. intelligence agencies to scoop up communications between Americans and individuals abroad.

But the bill also includes a provision that “vastly expands the U.S. government’s warrantless surveillance capabilities, damaging the competitiveness of U.S. technology companies large and small, and arguably imperiling the continued global free flow of data between the U.S. and its allies,” the ITI said in a statement this week.

As Reason reported in December, that provision means that nearly any business or entity with access to telecom or internet equipment could be forced to participate in the federal government’s digital spying regime. The big target, as Wired noted this week, is likely to be the owners and operators of data centers.

Under the current FISA law, Section 702 only applies to telecommunications companies and internet service providers. But the amendment included in the RISAA would expand that definition to cover “any service provider” with “access to equipment that is being or may be used to transmit or store” electronic communications.

“The practical impact of the revised definition is significant and means any company, vendor, or any of their employees who touch the physical infrastructure of the internet could now be swept under FISA’s scope and compelled to assist with FISA surveillance,” the ITI warns. “If this amendment were to become law, any electronic communications service equipment provider or others with access to that equipment, including their employees or the employees of their service providers, would be subject to compelled FISA disclosure or assistance.”

In short, even someone like a custodian could be legally compelled to assist in the federal government’s spying efforts.

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Supercharged Spying Provision Buried In “Terrifying” FISA 702 Reauthorization

On Monday, the House finalized procedural business on a bill to reauthorize the nation’s warrantless surveillance powers under the Foreign Intelligence Surveillance Act (FISA), which Sen. Ron Wyden (D-OR) called “one of the most dramatic and terrifying expansions of government surveillance authority in history.”

“I will do everything in my power to stop it from passing in the Senate,” said Wyden in a Friday post to X.

Wyden is right…

In a Sunday night thread on X from Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, breaks down why this is so ‘terrifying.’

“Buried in the Section 702 reauthorization bill (RISAA) passed by the House on Friday is the biggest expansion of domestic surveillance since the Patriot Act. Senator Wyden calls this power “terrifying,” and he’s right,” the thread begins.

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Fentanyl Fear Factor: White House Leverages Drug Scare to Push for Controversial Surveillance Powers

In a recent public appeal, the Biden administration has urged the reauthorization Section 702 of the Foreign Intelligence Surveillance Act (FISA) before it expires on April 19. Bill Burns, the CIA Director, issued a statement, alleging the significant role of the FISA powers in fighting threats against national security, especially the illicit trafficking of fentanyl into the United States.

Burns highlighted the gravity of the fentanyl threat, saying, “The threat to the US posed by fentanyl and other synthetic opioids is real. Section 702 is an essential tool in CIA’s mission to protect the American people from a range of threats, including illicit fentanyl trafficking. Without this vital program, CIA simply would not be able to defend our country as effectively in as many dangerous corners of the world.”

Echoing the CIA Director’s stance, the White House has also underlined the importance of the reauthorization bill in ensuring national security. National Security Communications Advisor John Kirby further stressed the significance of bipartisan support for this endeavor. He stated, “Obviously we strongly support the bipartisan effort to get 702 reauthorized. It is vital to our ability to defend ourselves, defend … the American people, and we very much want to see it move forward — get extended and move forward.”

It’s worth noting that Section 702 of FISA authorizes US government officials to collect electronic communications without needing a warrant. This provision has been a point of contention, with privacy advocates arguing that it infringes on personal freedom.

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NSA “Just Days Away From Taking Over The Internet” Warns Ed Snowden

The United States National Security Agency (NSA) is only days away from “taking over the internet” with a massive expansion of its surveillance powers, according to NSA whistleblower Edward Snowden.

In an April 16 post to X, Snowden drew attention to a thread originally posted by Elizabeth Goitein — the co-director of the Liberty and National Security Program at the Brennan Center for Justice — that warned of a new bill that could see the U.S. government surveillance powers amplified to new levels.

Source: Edward Snowden

The bill in question reforms and extends a part of the Foreign Intelligence Surveillance Act (FISA) known as Section 702.

Currently, the NSA can force internet service providers such as Google and Verizon to hand over sensitive data concerning NSA targets.

However, Goitein claims that through an “innocuous change” to the definition of “electronic communications surveillance provider” in the FISA 702 bill, the U.S. government could go far beyond its current scope and force nearly every company and individual that provides any internet-related service to assist with NSA surveillance.

“That sweeps in an enormous range of U.S. businesses that provide wifi to their customers and therefore have access to equipment on which communications transit. Barber shops, laundromats, fitness centers, hardware stores, dentist’s offices.”

Additionally, the people forced to hand over data would be unable to discuss the information provided due to hefty gag order penalties and conditions outlined in the bill, added Goitein.

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House Votes To Extend Warrantless Spying Powers

US lawmakers have passed a bill reauthorizing the Foreign Intelligence Surveillance Act (FISA), a law which allows the government to surveil American citizens without a warrant. A small group of Republicans previously blocked the vote, but allowed it to proceed following a minor amendment to the law.

The two-year extension passed the House on Friday in a bipartisan vote of 273-147, with 126 Republicans and 147 Democrats supporting the bill, which will now proceed to the Senate. Though lawmakers also debated an amendment that would have forced federal agencies to obtain warrants before spying on Americans, it failed in a tie vote.

“This is how the Constitution dies… This is a sad day for America,” Republican Rep. Thomas Massie said after the amendment went “down in flames.” He noted that House Speaker Mike Johnson provided the tie-breaking vote to kill the warrant requirement.

Though Johnson was once a vocal critic of FISA’s Section 702 – which handed US intelligence agencies sweeping powers to spy on Americans in the wake of the 9/11 attacks – he quickly reversed course after his promotion to House speaker.

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