Foreign Intelligence Surveillance Act Section 102: Modified for the War on Terror

AMERICAN MILITARY UNIVERSITY FOREIGN INTELLIGENCE SURVEILLANCE ACT SECTION 102 MODIFIED FOR THE WAR ON TERROR Intelligence 305: Law & Ethics in Intelligence Midterm Assignment Professor: Dina Gallo Student: Jim Garrett Due: 1 December 2013 Section 102 of the Foreign Intelligence Surveillance Act defines on what grounds electronic surveillance can be conducted in order to counter the collections of foreign intelligence services and non­state actors in the United States and abroad. FISA was once designed to collect on foreign intelligence services and their spies. During the Cold War era when it was created the intended targets were “Reds”. The FISA was designed to allow the IC to target foreign embassy personnel, suspected intelligence officers, suspected traitors, members of foreign sponsored political parties such as the Communist Workers Unions. While the wording and definition of terrorist appears in Section 101 of the document terrorism was not the significant threat of that era. September 11, 2001 changed that. Section 102 is no longer the document created in 1978. Like all governments and state security organs national tragedies such as September 11, 2001 allowed them to prey upon people’s fears and pass laws broadening the power of the Intelligence Community. Rather than face their own failures as intelligence professionals and their unwillingness to share information the Intelligence Community laid the blame on the powers they did not have. In the end they were able to collect information on almost any target, anywhere. Now they have all the collections they could ask for, yet not the people to analyze the flow of information. 1 Since the 1978 version of this document came out the document has been rewritten. Whereas once the document had strong intent to protect the privacy of American citizens over time the authorization expanded into catch­all type phrases that basically allows the government limited time to collect on anyone. However, the expansion still fails to authorize programs such as PRISM where the government conducts mass domestic intelligence collections. Example: The underwear bomber was flagged as a person of interest by an IC group working in Yemen. However, the warning was lost in the massive flow of information (Priest and Arkin 2010) 1 Section 102 authorizes the government to target the communications between foreign powers. The rights of American citizens are supposed to be protected under Section 102(B). Section 102(B) prevents collections on any communications in which a US person is involved unless that person is an agent of a foreign power. The USA PATRIOT Act, arguing that criminal activities fed terrorist activities abolished the FISA’s requirement that such collections can only be done on persons acting in the interests of foreign powers (Edgar 2003). However, FISA section 102 now maintains that collections cannot be authorized on persons whose “suspicious activities” are protected by the first amendment. Section 102 also covers the Attorney General’s ability to order a communications common carrier to supply “information, facilities, or technical assistance” the government requires conducting electronic surveillance. However, recent whistleblowers such as Edward Snowden have claimed that data­mining programs such as PRISM collect information on U.S. citizens. The telecommunications carrier Verizon was found to provide the government with logs of conversations between people within the United States and other countries as well as completely within the United States (Savage and Baker 2013). Section 102 states that information incidentally collected on US citizens must meet minimization requirements to protect that person’s privacy. The collecting agency is supposed to “obscure the identity of persons collected” in surveillance programs (Rosenbach 2009). However, a report showing Homeland Security’s continued violation of Americans’ civil rights does not inspire confidence that the IC is protecting information collected from the conversations of average Americans (Rollins 2008). The Terrorist Surveillance Act of 2006 (TSA 2006) modified Section 102’s authorization requirements further. The president could authorize the IC to conduct electronic surveillance of suspected terrorists in the United States (Dawson 2006) . A former requirement had been that a warrant must be obtained within 72 hours. TSA 2006 only requires that a warrant be obtained within 45 days. It does however establish a subcommittee of the Senate Select Intelligence Committee to oversee the program. This act, written by Senate DeWine, Graham, and Hagel was designed to institute more checks and balances to this system according to their statements, as they believed other post 9­11 legislation was taking away from the checks and balances in the FISA law (Dawson 2006). However, there are many loop holes. The president is supposed to only be able to order surveillance for 45 days and acquire a warrant as soon as able. However, when the president cannot present evidence a warrant is necessary they only have to request the Attorney General sign a letter saying they believe that the surveillance is necessary. The Protect America Act of 2007 removed Section 102’s requirement that a warrant be obtained for surveillance of targets outside of the United States. This also allowed an avenue to spy on the communications of US persons. All US communications that passed through non­US locations were also legally able to be collected. The bill also allowed wide­span wiretapping of communications between US citizens and foreigners (Risen and Lichtblau 2009). The Act also abolished the need to judge the character of the person being targeted for collections. However, the procedures to minimize the impact on US persons inadvertently collected with no ties to foreign powers or terrorism still remain in place under FISA. In all Section 102 of the Foreign Intelligence Surveillance Act is nearly unrecognizable from the original document. Whereas once it was designed for the government to stop foreign intelligence service officers and spies it is now an umbrella system to catch anyone. Despite maintaining that it uses minimization procedures to reduce the impact on the rights of US persons the IC now conducts a wide ranging intelligence collection system, attempting to stop another terrorist attack. Ethically the amendments to FISA are crime against the privacy of the American people. 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