Warrantless backdoor searches (FISA Section 702)

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A newly released government audit revealed details about the Federal Bureau of Investigation’s (FBI) abuse its access to foreign intelligence information collected under Section 702 of the Foreign Intelligence Surveillance Act (FISA). Section 702, which is due to expire at the end of 2023, authorizes the government to target foreigners for surveillance and acquire their internet communications with the compelled cooperation of U.S. service providers. According to the audit, highlighted in a Wired report today, FBI personnel conducted unlawful searches of Section 702 databases on numerous occasions, including searches relating to a member of Congress, a local political party, and a tip based on racial profiling.

For years, EPIC has advocated for a ban on warrantless backdoor searches, arguing that the FBI’s query and use Section 702 data in routine criminal investigations entirely unrelated to national security without a warrant—or even an individualized court order—raises Fourth Amendment concerns. Most recently, EPIC urged the Privacy and Civil Liberties Oversight Board to recommend prohibiting warrantless backdoor searches and has joined a coalition of civil liberties groups proposing broader reform to Section 702. EPIC is also committed to increasing transparency around the FBI’s Section 702 activities. In EPIC v. NSD, EPIC obtained a report containing important information about the FBI’s use of Section 702 authority.

EPIC recently published an overview of Section 702 as part of a new blog series focused on explaining Section 702 and the need to reform it.

More (including reference links):

The Supreme Court declined to hear Wikimedia v. NSA, Wikimedia’s challenge to the NSA’s mass surveillance of Internet communications under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which expires at the end of 2023. The district court and Fourth Circuit Court of Appeals both ruled that the case must be dismissed under the “state secrets privilege” because the NSA said it would have to reveal national security secrets to defend its actions in court.

Another take on the SCOTUS (non-)decision:
... With "state secrets privilege" barring litigation, that leaves upcoming congressional debates over renewal of the law authorizing the program as the only recourse for civil liberties advocates.

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I would say right around the time the three towers fell.
How do you think it got this way?

Edited to add:...and by "this way", I mean, where the gov is known to violate the Constitution and then say that it cannot be challenged on it. When did that start?
How do you think it got this way?
It's right there in the article I linked in my last post:
...As I've pointed out before, state secrets privilege has a sketchy history, evolving from bad official behavior after a 1948 plane crash that killed several civilian observers. When the observers' widows sued in United States v. Reynolds, the government argued that information about the plane was too super-secret to be revealed in court (a complete lie concealing official negligence, by the way). The Supreme Court agreed that some things are too sensitive to reveal in legal proceedings and gave officialdom a free pass to invoke the phrase "national security" as a shield against accountability. ...
It started before that.

When do you think it started then?

Invoke national security, and unpopular policies become law—or the law itself may even be suspended. One act of legal levitation was George Bush’s suspension of habeas corpus for foreigners, a move that enabled the Defense Department to lock up so-called “enemy combatants” in Guantanamo Bay without trial, indefinitely. Uttering the magic phrase can make other things disappear. Shelf upon shelf of government documents vanishes from public sight after being shrouded in security classifications. Poof!

One might think that states have always been obsessed with national security. But Americans didn’t begin using the phrase with any frequency until the 1940s, when Edward Mead Earle, a historian based at the Institute for Advanced Study in Princeton, New Jersey*, from the 1930s to the ‘50s, helped popularize the concept among policy elites and ordinary Americans alike.

Before then, many military planners and civilian leaders spoke of “national defense.” But that phrase referred to matters of war only. Unlike us, they had no concept that linked together so many disparate policy domains, from information and infrastructure to terrorism and trade. The rise of “national security” has since helped expand the power of government, defy the very idea of peacetime, and reorganize much of modern life.

Read: Is America any safer?

Cambridge historian Andrew Preston has counted sitting U.S. presidents publicly mentioning “national security” a mere four times between 1918 and 1931—an average of one utterance for each of the presidents who served during that period. It’s also fewer than the number of times I wrote “national security” in the opening paragraph of this article.

Earle didn’t coin the phrase. Nor was he alone during the so-called “world crisis” of the 1930s and ’40s in advocating for a more aggressive military and foreign policy. But he was one of the first to develop a full-fledged theory of national security, which he then sold to the country. Speaking in 1940 before a New York auditorium crowded with academics, military men, and journalists, Earle claimed the term “defense” to be “misleading.” The term implied a passive and reactive position—one of “waiting until the enemy is at one’s gates.” But this amounted to suicide in an age of totalitarianism and air power, which gave the advantage to the aggressor. “Perhaps,” Earle said to the audience, “a better word is security.”


Congress has already nearly passed FISC amici reform. In 2020, as part of a proposed bill reauthorizing Section 215 of the USA PATRIOT Act, the Senate passed the Lee-Leahy Amendment by an astounding, bipartisan 77-19 vote. Though the Lee-Leahy Amendment did not become law because Congress ultimately failed to reauthorize Section 215, it provides a solid foundation for FISA Court reform.

When do you think it started then?
It started in 1933 when the gov declared an emergency and added American citizens to the list of enemies to be regulated by the Trading With the enemies Act of Oct 6th 1917, and then began operating extra-constitutionally.

Ever since then, the gov has continually expanded its extra-constitutional actions, right up to today where those who run the gov think that gov can do whatever it wants and the majority of people just accept it, Constitutional limits on power be damned. Many today even see limits on gov power as harmful.

Why do most just accept it? Because they do not know any better and have never been taught about it. All they've ever known is a gov that operates outside of its limits on power.

Every monetary and financial issue we (as a nation) have had over the past 90 years has that act in '33 as its root.
We were talking about different "it"s then. You didn't clarify what you were referring to, so I thought you were talking about the invocation of "national security" - the specific phrase.
POTUS announced a National Cybersecurity Strategy that says (bold emphasis is mine):


The United States will use all instruments of national power to disrupt and dismantle threat actors whose actions threaten our interests. These efforts may integrate diplomatic, information, military (both kinetic and cyber), financial, intelligence, and law enforcement capabilities. Our goal is to make malicious actors incapable of mounting sustained cyber-enabled campaigns that would threaten the national security or public safety of the United States.

Coordinated efforts by Federal and non-Federal entities have proven effective in frustrating the malicious cyber activity of foreign government, criminal, and other threat actors. ...

We will build upon these successes to enable more sustained and effective disruption of adversaries. Our efforts will require greater collaboration by public and private sector partners to improve intelligence sharing, execute disruption campaigns at scale, deny adversaries use of U.S.-based infrastructure, and thwart global ransomware campaigns.

What does that mean in practice?
A few months ahead of its expiration this fall, the Biden administration has announced its intention to seek renewal of Section 702 of the Foreign Intelligence Surveillance Act (FISA)—an invasive and unconstitutional law that cannot continue to exist in its current form.

On its face, Section 702 allows the government to conduct surveillance inside the United States so long as the surveillance is directed at foreigners currently located outside the United States. It also prohibits intentionally targeting Americans. Nevertheless, the NSA routinely (“incidentally”) acquires innocent Americans' communications without a probable cause warrant. In fact, FISA Court judges who approve Section 702 surveillance never learn about, let alone approve, the targets of surveillance under Section 702, and they rely entirely on certifications from the executive branch that downplay the nature of incidental surveillance of Americans. Then, rather than “minimize” the sharing and retention of Americans’ data, as Congress required, the NSA routinely shares such data with the FBI, CIA, and National Counterterrorism Center, and all agencies retain it for at least five years. Since Section 702 was last reauthorized in 2018, it has only become clearer that this provision is a rich source of warrantless government access to Americans’ phone calls, texts, and emails.

In this way, Section 702’s mass surveillance of Americans and the availability of that information to law enforcement isn’t just “incidental”—it's the primary function of the program. What should we do about a program where the byproduct of the program becomes the primary benefit to the government?

Ahead of the potential sunset of Section 702 of the Foreign Intelligence Surveillance Act (FISA) at the end of 2023, EPIC has launched a campaign to significantly reform the sweeping surveillance authority or let it sunset. The campaign page includes EPIC’s major priorities for surveillance reforms as part of any reauthorization process, as well as EPIC’s blog series on Section 702 and the need for reform. EPIC recently joined a bipartisan coalition of civil liberties groups advocating for significant reform if Congress seeks to reauthorize Section 702. ...

Campaign page:

We were talking about different "it"s then. You didn't clarify what you were referring to, so I thought you were talking about the invocation of "national security" - the specific phrase.
What I was referring to is the fact that everything in this thread is about unConstitutional Acts of our government.

The "warrantless backdoor searches" referenced in the title are clear violations of the Constitution that the gov does not want aired in a regular Article 3 Court.

It's no different than the Drug Enforcement Act that was weaseled into existence, and that they continue to prevent from being adjudicated as to its Constitutionality.
Ie: because they know it is unConstitutional and don't want their good deal gettin' screwed up by pesky Constitutional issues.

The patriot act and everything else they did as a result of 9/11, is unConstitutional.
.....but the game plan has been to keep it going as long as possible in order to allow it to come to be seen as the normal way of gov conducting its business. They want us to forget that it is at the the expense of some of our Constitutionally guarenteed Rights.
.....and that's the same as what happened in '33. Ie: it was the first time that the People permanently lost some of their Rights that had been previously guarrenteed to each one of us by our Constitution.
Edited to add: the warrantless searches and other 4th Amendment violations are johnny-come-lately's in that regard.
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Internal Documents Show How Little the FBI Did to Correct Misuse of Section 702 Databases​

APRIL 25, 2023

The Federal Bureau of Investigation (FBI) has released internal documents used to guide agency personnel on how to search the massive databases of information collected under the Foreign Intelligence Surveillance Act, including communications collected without a warrant under Section 702. Despite reassurances from the intelligence community about its “culture of compliance,” these documents depict almost no substantial consideration of privacy or civil liberties. They also suggest that in the years before these guidelines were written, even amidst widespread FBI misuse of the databases to search for Americans’ communications, there were even fewer written guidelines governing their use. Above all, FBI agents can still search for and read Americans’ private communications collected under Section 702, all without a warrant or judicial oversight.


Last week, the House Judiciary Subcommittee on Crime and Federal Government Surveillance held a hearing on “Fixing FISA: How a Law Designed to Protect Americans Has Been Weaponized Against Them,” ahead of the December 2023 expiration of the Section 702 surveillance authority. The three witnesses, Michael E. Horowitz (Inspector General, U.S. Department of Justice), Sharon Bradford Franklin (Chair, U.S. Privacy and Civil Liberties Oversight Board), and Beth A. Williams (Board Member, U.S. Privacy and Civil Liberties Oversight Board) all sketched out their visions for the good, the bad, and the ugly about the invasive surveillance power.

The witnesses managed to use the hearing to sketch out a vision for what a minimally sufficient bill to reform Section 702 would look like. However, they were not nearly as skeptical as we are of the necessity of domestic law enforcement’s use of these powers–especially when the information collected under 702 could be obtained by law enforcement with a warrant through more traditional avenues.


^^^^ However, they were not nearly as skeptical as we are of the necessity of domestic law enforcement’s use of these powers–especially when the information collected under 702 could be obtained by law enforcement with a warrant through more traditional avenues.

That's because doing it the right way, the Constitutional way, takes longer and requires more effort on their part.
....and involves someone(s) who might say "no".
^^^^ “Fixing FISA: How a Law Designed to Protect Americans Has Been Weaponized Against Them,”

It's called mission creep. Anything new the gov gives itself power to do, always ends up morphing into something used against the People.

There's too many examples to even list.

The biggest is war powers. Everything else pales in comparrison.
On April 28, the Office of the Director of National Intelligence (ODNI) released its Annual Statistical Transparency Report Regarding the Intelligence Community’s Use of National Security Surveillance Authorities, which shows a steady increase in targeting under Section 702 of the Foreign Intelligence Surveillance Act (FISA)—up to nearly 250,000 in 2022—and continued noncompliance with Congressional safeguards. In response to concerns over the extent to which the Federal Bureau of Investigation (FBI) queries raw Section 702 data, as well as its inability to comply with Section 702’s minimal privacy safeguards, the FBI revised its methodology for counting queries and issued new guidance on querying. Still, under this new methodology—which only counts unique queries and therefore does not count repeat queries using the same U.S. person terms—the FBI queried Section 702 databases roughly 119,000 times. Further, according to the report, the FBI continues to flout a very narrow requirement that it obtain a court order prior to conducting certain queries, a requirement with which the FBI has never complied.


^^^ "Further, according to the report, the FBI continues to flout a very narrow requirement that it obtain a court order prior to conducting certain queries, a requirement with which the FBI has never complied."

That's because the fbi has become an anti-America organization.

If they weren't, they would willingly seek to comply with the law.
A newly released Foreign Intelligence Surveillance Court (FISC) opinion from April 2022 revealed that the Federal Bureau of Investigation (FBI) has continued to abuse its access to information collected under Section 702 of the Foreign Intelligence Surveillance Act (FISA), including by searching for racial justice protestors, activist groups, and political campaign donors. The FISC detailed the FBI’s “pattern of conducting broad, suspicionless queries” of information collected under Section 702, a sweeping warrantless foreign intelligence surveillance authority. Although the FISC ultimately approved the FBI’s revised querying guidelines, it emphasized that the FBI’s compliance issues “have proven to be persistent and widespread” and warned that further noncompliance may require other, stronger responses from the FISC.

They've (fbi) have been doing it for so long, that they don't want to do their job without taking the short cuts that fisa courts allow.

Which is why they (fisa courts and patriot act) shouldn't been created in the first place. They are an abomination to the Constitution.

The answer to 9/11 wasn't to create new ways for the gov to do things unConstitutionally. (un-patriot act) What should have been done was to kick the foreigners out and only allow in a number of them the fed.gov has the ability to keep up with. The only reason those guys could do what they did, was because they let in huge numbers of people, to the point that many of them fell through the cracks.

Federal Judge Makes History in Holding That Border Searches of Cell Phones Require a Warrant​

MAY 30, 2023

With United States v. Smith (S.D.N.Y. May 11, 2023), a district court judge in New York made history by being the first court to rule that a warrant is required for a cell phone search at the border, “absent exigent circumstances” (although other district courts have wanted to do so).

EFF is thrilled about this decision, given that we have been advocating for a warrant for border searches of electronic devices in the courts and Congress for nearly a decade. If the case is appealed to the Second Circuit, we urge the appellate court to affirm this landmark decision.



The Foreign Intelligence Surveillance Court Has Made a Mockery of the Constitutional Right to Privacy​

JUNE 1, 2023

The latest evidence that Section 702 of the Foreign Surveillance Intelligence Act (FISA) must be ended or drastically reformed came last month in the form of a newly unsealed order from the Foreign Intelligence Surveillance Court (FISC) detailing massive violations of Americans’ privacy by the FBI.

The FISC order is replete with problems. It describes the government’s repeated, widespread violations—over a seven-year period—of procedures for searching its databases of internet communications involving Americans, all without a warrant. These searches included especially sensitive people and groups, including donors to a political campaign. And it shows the FISC giving the FBI all-but-endless do-overs, each time proclaiming that the executive branch has made “promising” steps toward compliance with procedures that are largely left up to government attorneys to design.

Perhaps most shocking, however, is the court’s analysis of how the Fourth Amendment should apply to the FBI’s “backdoor searches” of Americans’ communications. These searches occur when the FBI queries Section 702 data that was ostensibly collected for foreign intelligence purposes without a warrant but includes a person on U.S. soil in the communication.

More here:

From the link:

ANALYSIS US Senators have told intelligence agency officials that they are unlikely to renew authorization to use Section 702 of the US Foreign Intelligence Surveillance Act (FISA) without setting stricter limits on how and when government snoops can wield its powers.

A key point of contention between the lawmakers and intelligence agencies is that the surveillance powers conferred by the Act – which are supposed to be used against foreign targets who pose a threat to the United States – are also used to allow warrantless snooping on US citizens' communications.

During a Senate Judiciary Committee hearing on Tuesday, representatives from the CIA, NSA, FBI and Justice Department repeatedly told lawmakers that Section 702 is a critical national security tool.

Sounds good. Let's see the talk put into action.
Sounds good. Let's see the talk put into action.
Odds are that anything done about it will end up being so watered down as to be virtually meaningless. Too many of those in dc support the use of such unConstitutional powers.

They see Constitutional limitations on their power as a hinderance, and something to be creatively overcome.
...and a truly astounding number of the People do too. We're fortunate that any semblance of what the Founders intended has even latest this long.

It's a fact that if all powers that should have been ruled as being unConstitutional (when measured against the original intent of the DOI and Constitution) were removed from the govs playbook, 95% of the people who work for the government would have nothing to do.

Deja Vu: The FBI Proves Again it Can’t be Trusted with Section 702​

JULY 27, 2023

We all deserve privacy in our communications, and part of that is trusting that the government will only access them within the limits of the law. But at this point, it’s crystal clear that the FBI doesn’t believe that either our rights nor the limitations that Congress has placed upon the bureau matter when it comes to the vast amount of information about us collected under FISA Section 702.

The latest exhibit in this is in yet another newly declassified opinion of the Foreign Intelligence Surveillance Court (FISC). This opinion further reiterates what we already know, that the Federal Bureau of Investigation simply cannot be trusted with conducting foreign intelligence queries on American persons. Regardless of the rules, or consistent FISC disapprovals, the FBI continues to act in a way that shows no regard for privacy and civil liberties.

Read the rest:


the Federal Bureau of Investigation simply cannot be trusted with conducting foreign intelligence queries on American persons. Regardless of the rules, or consistent FISC disapprovals, the FBI continues to act in a way that shows no regard for privacy and civil liberties.​

Read the rest:

They proved that 7 years ago when they willfully lied to the fisc to illegally go after Trump for fabricated allegations of him "colluding" with Putin. Half the nation ate it up and cheered on thei fbi's witch hunt using the same process you are now pointing out as being wrong.
This one is a bit different.

How the Government Weaponizes Surveillance to Silence Its Critics​

Ever since Martin Luther King Jr. delivered his groundbreaking “I Have a Dream” speech during the March on Washington for Jobs and Freedom on Aug. 28, 1963, the Deep State has been hard at work turning King’s dream into a living nightmare.

The end result of the government’s efforts over the past 60 years is a country where nothing ever really changes, and everyone lives in fear.

Race wars are still being stoked by both the Right and the Left; the military-industrial complex is still waging profit-driven wars at taxpayer expense; the oligarchy is still calling the shots in the seats of government power; and the government is still weaponizing surveillance in order to muzzle anti-government sentiment, harass activists, and terrorize Americans into compliance.

This last point is particularly disturbing.

Starting in the 1950s, the government relied on COINTELPRO, its domestic intelligence program, to neutralize domestic political dissidents. Those targeted by the FBI under COINTELPRO for its intimidation, surveillance and smear campaigns included: Martin Luther King Jr., Malcom X, the Black Panther Party, John Lennon, Billie Holiday, Emma Goldman, Aretha Franklin, Charlie Chaplin, Ernest Hemingway, Felix Frankfurter, and hundreds more.

Read the rest:

Ten years after Edward Snowden sparked a debate over domestic (and international) spying by the U.S. government and its allies, arguments continue and so does the snooping. This year, one key component of the surveillance state—Section 702 of the Foreign Intelligence Surveillance Act—is up for congressional reauthorization. Now, the executive branch's own civil liberties watchdog says that, while Section 702 plays an important role, it's also dangerous to our freedom and needs reform.
The Privacy and Civil Liberties Oversight Board (PCLOB), established in 2007 in an effort to limit the excesses of the burgeoning post-9/11domestic intelligence apparatus, ...

"The Board finds that Section 702 poses significant privacy and civil liberties risks, most notably from U.S. person queries and batch queries" in which multiple query terms are run as part of a single action, according to the PCLOB's Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act, published September 28 and following up on a 2014 report on the same topic. "Significant privacy and civil liberties risks also include the scope of permissible targeting, NSA's new approach to upstream collection, a new sensitive collection technique that presented novel and significant legal issues approved by the FISC in 2022, how data is initially ingested into government repositories, incidental collection, and inadvertent collection."

The report points out that the definition of "foreign intelligence information" is very broad and that 246,073 non-U.S. persons were targeted for surveillance in 2022, up 276 percent from 2013. While Section 702 surveillance isn't "bulk" surveillance of the sort that hoovers up mass quantities of information, it "lacks individualized and particularized judicial review of targeting decisions" with the result that "targeting can be overbroad or unjustified."


EPIC is supporting the new bill:

Nov 7

A bipartisan group of lawmakers rolled out legislation Tuesday that includes a warrant requirement for certain information collected under a foreign surveillance authority, as it remains unclear how Speaker Mike Johnson will handle the controversial program’s end-of-year expiration date.

The legislation is the first major proposal unveiled for reauthorization of Section 702 of the Foreign Intelligence Surveillance Act, which allows the U.S. government to collect the digital communications of foreigners who are located outside the country.

But the law also allows U.S. authorities to search through the foreign surveillance data for information on Americans, without a warrant, using information such as an email address.


From the link:


Later this year, the NSA and FBI's legal wellspring for mass digital surveillance, Section 702, will expire if Congress does nothing for eight more weeks. Saving it is the U.S. intelligence community's highest legislative priority. Christine Abizaid, director of the National Counterterrorism Center, recently invoked the Oct. 7 Hamas massacres to urge Congress to "preserve [counterterrorism] fundamentals"—i.e., 702—"to ensure constant vigilance." Now, everyone who has been a sane voice in the fight to preserve privacy since 9/11 sees that as a unique opportunity.

Earlier this week, an unlikely figure, Sen. Ron Wyden (D-Ore.), introduced a measure that would save Section 702. That surprised me. Both times 702 has come up for reauthorization, in 2012 and 2018, Wyden voted against it. He voted no on the bill to create Section 702 in the first place. (So, by the way, did Joe Biden.)

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