Yeah, so what?![]()
The FISA Court’s 702 Opinions, Part I: A History of Non-Compliance Repeats Itself
A look at the newly released FISA Court opinions and what they reveal about the FBI's non-compliance with its legal requirements.www.justsecurity.org
In 2016, the FISA Court learned that the NSA had been violating the rules established in 2012. Because those rules were designed to remedy a Fourth Amendment violation occurring since the start of the program, the NSA’s non-compliance meant that its upstream collection activities had been operating unconstitutionally for eight years. Moreover, the government did not report this issue for several months after discovering it. Unable to bring itself into compliance, the NSA made the only decision it could: In the spring of 2017, it abandoned “abouts” collection, which was at the root of the problem.
The Court’s October 2018 Ruling
In March 2018, the government submitted its annual certifications and procedures to the FISA Court for its approval. In a decision dated October 18, 2018, and released last week, the FISA Court held that the FBI’s minimization procedures violated both the statute and the Fourth Amendment. The Court’s opinion addresses three main practices by the FBI: downstream collection of certain communications; the FBI’s failure to record USP queries; and the FBI’s improper use of USP queries.
Downstream collection and “abouts” communications. Although this section of the opinion is highly redacted, it appears that the government is engaged in a new form of downstream collection that raised a flag for the FISA Court. The Court solicited amici’s advice about whether the statutory preconditions for resuming “abouts” collection apply to downstream collection, and whether certain activities in the government’s 2018 certifications involve the acquisition of “abouts” communications. Amici argued that the answer to both questions was yes; the government’s answer was no in both cases. The Court split the baby, holding that the statutory requirements apply to any kind of “abouts” collection, but that no such collection would occur under the government’s certifications.
For years prior to the 2012 review, they screwed up, and afterwards...measures they took to correct it, did not work, but it was finally corrected by dropping what they were doing.... sucks it went on for so long.
But that is a systematic problem, not one created for Trump?