FISA Court Upholds NSA Phone Snooping Tactics

Ellen Nakashima
(Image: cfp.org)

The NSA's sweeping (no pun intended) ability and evident willingness to aggressively data mine domestic phone conversations was upheld by a FISA judge this week. The Washington Post's Ellen Nakashima reported this story in today's online editions of the newspaper.

The FISA (Foreign Intelligence Surveillance Act) court is an American judicial anomaly. Its secret proceedings feature a plaintiff and no defendant. A government attorney makes a case, and a FISA jurist determines its suitability under the judge's interpretation of current federal statutes. The court straddles the line between a rubber stamp for NSA activities and a light touch of "judicial oversight."

Former US Attorney General
Alberto Gonzalez

One consequence of Edward Snowden's revelations was sharply increased doubt regarding the efficacy of the FISA court. The NSA seemed like an organization that could simply make up the rules of the game, and not inform anyone about them. The right to privacy? That notion seemed as "quaint" as George W. Bush's former attorney general Alberto Gonzalez once considered the Geneva Convention's protocols.

The recent FISA ruling the Post cites expands this alarming erosion of privacy rights. As Nakashima notes:

The gathering of "all call detail records" from phone companies is justified as long as the government can show that it is relevant to an authorized investigation into known -- and, significantly -- unknown terrorists who may be in the United States, the Aug. 29 opinion states.

Moreover, the government need only show that there are "reasonable grounds to believe" the records will be relevant to the investigation, a lower burden than required in ordinary criminal investigations. That is justified because the goal is to prevent a terrorist attack, not solve a crime that has already taken place, the court said, affirming the government's position.