Advocates for renewal of the FISA Amendments Act (FAA) often argue that the statute poses no more harm to the privacy of innocent Americans than does the Wiretap Act, also known as Title III. After all, when FBI agents are tapping a suspected drug courier’s phones, his friends or mother may also call. How is the FAA any different?
Actually, there are many important differences between Title III, the FAA and even traditional FISA intercept orders. These differences mean that FAA is far more intrusive than Title III and poses a categorically different threat to the privacy of innocent Americans.
Title III establishes a comprehensive statutory scheme, closely monitored by the federal courts, for conducting wiretap and other electronic surveillance in the federal law enforcement context. Title III warrants allow federal agents to monitor specific and identified communications facilities where there is probable cause to believe that co-conspirators in a federal offense will communicate. Minimization practices stop the agents from listening to or recording conversations that are not about the crime under investigation. After the interceptions, individuals named in the wiretap order must be notified, and the Court may order notification of other monitored parties. Title III prescribes serious legal consequences, including prison time, for failing to follow the law.
In practice, this means that the FBI agents investigating the drug conspiracy may be on the line when a suspect’s mother calls to discuss holiday plans, but they have to stop listening. They may only listen to and record conversations about the drugs.
In contrast, FAA authorizations allow the government to monitor Americans’ international communications flowing through any facility, so long as the purpose of the monitoring is to collect foreign intelligence information about a non-US individual or entity reasonably believed to be overseas.
In practice, while the precise details of FAA targeting and minimization procedures are secret, the statute authorizes the NSA to monitor any Americans’ international communications with agents of a foreign target, which could be Al Qaeda, Amnesty International or the French government, for foreign intelligence information. Conversations with a favorite aunt -- who works for Amnesty in their UK offices -- about the NGO’s strategy to affect US human rights policies could lawfully be collected and logged.
What about irrelevant communications? Under Title III, innocent Americans are only incidentally monitored, and if the conversation is not about the crime under investigation, the agents must stop listening and may not record the call. FISA minimization does not require agents to stop listening. Under FISA, minimization practices generally permit acquisition of nearly all information from a monitored facility. Kris & Wilson, National Security Investigations and Prosecutions 2d §9:4 (2012) [Author David Kris was formerly the Department of Justice’s head of national security.] Information is minimized later, and then only if it “could not be” foreign intelligence information. Further, minimization does not necessarily mean that the information is deleted. It may be stored but not indexed.
So when my aunt -- Amnesty’s employee -- starts talking about her plans to visit San Francisco for the holidays, those communications will be copied, stored, and searched at the government’s discretion. Only if those messages “could not be” foreign intelligence information will they be deleted or, alternatively, stored forever without being indexed or logged.
In sum, innocent Americans are far more likely to be monitored under the FAA than under Title III because under the FAA:
- Any number of individuals thought to be agents of a foreign entity target may be intentionally monitored as a result of a single FAA authorization, and need not be specifically identified [More Americans likely to be monitored since an undefined and evolving list of individuals are believed to be agents of approved targets];
- No wrongdoing required on the part of the target [Thus, the people talking to the target are also innocent];
- Any facility may be monitored, even if there is no connection to the target;
- FISA minimization operates on a “collect now, minimize later” model;
- FISA minimization allows the government to keep information concerning Americans until it “could not be” foreign intelligence information;
- FISA minimization doesn’t necessarily mean the information is deleted. It may remain stored, but not indexed;
- No judicial review of the justification for the surveillance;
- No notification to individuals incidentally or mistakenly monitored;
- Very difficult to impose consequences for violating the FAA, see e.g. government’s argument in Amnesty v. Clapper.
In fact, FAA has less safeguards even than traditional FISA. Traditional FISA at least required agents to: (1) identify the individuals to be monitored and get court approval; (2) specify the facilities to be surveilled and show probable cause that those facilities would be used by the target; and (3) get FISA Court approval and allow supervision of the targeting and minimization procedures to be used in each intercept, rather than merely green lighting general operational practices. Also, minimization under FAA need only be “as appropriate”, which, according to Kris and Wilson, "suggests that the government has some latitude to tailor [traditional FISA] minimization procedures to address the acquisition authorized by each of three [FAA] statutory procedures.”
As a result, the FAA poses far greater danger to the privacy of innocent Americans than does Title III because it both (1) authorizes monitoring of international communications for foreign intelligence information and (2) implements vastly different minimization procedures that ensure irrelevant communications will be collected and stored, perhaps indefinitely.