NSA's Rules Allowing Warrantless Searches On Americans Came THE SAME DAY It Was Told Searches Violated 4th Amendment

from the legal-loopholes dept

The FISC Court didn't just "approve" minimization procedures on October 3, 2011. In fact, that was the day that it declared that part of the program violated the Fourth Amendment. So where the glossary says minimization procedures approved on that date "now allow" for querying US person data, it almost certainly means that on October 3, 2011, the FISC court ruled the querying the government had already been doing violated the Fourth Amendment, and sent it away to generate "an effective oversight process," even while approving the idea in general. And note that FISC didn't, apparently, require that ODNI/DOJ come back to the FISC to approve that new "effective oversight process."

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We already wrote about the bombshell revelation from the Guardian that the NSA changed the rules in October of 2011, so that it had permission to do warrantless searches on US persons (contrary to public claims). However, Marcy Wheeler recognized the date of that update is the very same date that the FISA court supposedly smacked down the NSA for violating the 4th Amendment with some searches.If you don't recall, about a year ago, under pressure from Senator Wyden, the US government admitted (late on a Friday evening) that, indeed, the FISA court had "on one occasion" ruled that certain activities concerning Section 702 "minimization" (i.e., trying to avoid searches on US persons) were "unreasonable under the Fourth Amendment." And yet, that very same day, the NSA announced that the rules had changed and it could do searches on US persons, following a certain (undisclosed) "oversight process." Wheeler notes that the NSA seems to have interpreted the FISA court smacking it down for spying on Americansto spy on Americans:Wheeler goes further, providing details from the discussion in the Senate Intelligence Committee during the debate over reauthorizing the FISA Amendments Act (which is where 702 comes from), in which it was strongly hinted that the FISA court had "concerns" about this very type of backdoor searching, and despite acknowledging this, no one bothered to close that backdoor. In fact, it now appears that the NSA and the Director of National Intelligence may have used all of this as a cover to argue that they are authorized to do these kinds of searches.

Filed Under: 4th amendment, faa, fisa amendments act, fisa court, fisc, nsa, nsa surveillance, searches, section 702, surveillance