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New bill would declassify FISA court’s surveillance decisions

The court that runs PRISM isn't allowed to reveal how it operates, but a new bill could change that.


Aja Romano

Internet Culture

Posted on Jun 20, 2013   Updated on Jun 1, 2021, 1:00 pm CDT

A new Congressional bill introduced in the wake of the National Security Agency scandal would declassify the court rulings that have allowed PRISM and other far-reaching surveillance programs to operate without public knowledge or accountability.

The bipartisan bill, sponsored by Adam Schiff (D-Calif.) and Todd Rokita (R-Ind.), targets the FISC, the court that signs off surveillance requests under the Foreign Intelligence Surveillance Act (FISA). The act allows government agencies to monitor international communications—including email—without warrants. 

The FISC is a secret court that quietly monitors the NSA’s general procedures without stepping into examine each of the NSA’s directives. But if this new bill is successful, its opinions won’t be locked away and kept classified in the future.

Just last week, as new revelations about the scope of the NSA’s power and surveillance methods mounted, the FISA court agreed to disclose an earlier FISA opinion that “aspects of the NSA’s surveillance under Section 702 of the FISA Amendments Act [are] unconstitutional.” That same day, another group of bipartisan politicians, this time in the Senate, introduced legislation to declassify FISA opinions.

Today’s bill, a companion to the one introduced in the Senate, would direct the FISC to disclose its reasons and methods for gathering billions of phone records from Americans.  

“In order to have an informed public debate on the merits of these programs, it is important for the American people to know how such programs have been authorized, their limits and their scope,” Schiff told the Guardian

The bill is the latest in a coterie of legislative attempts to curb the authority of the NSA in the wake of public revelations from former CIA assistant Edward Snowden about the scope of the NSA’s power. Most of the bills would require the NSA to demonstrate conclusive links to foreign security threats before each attempt at information-gathering—no such probable cause is currently required. 

While NSA defenders claim that no American information is targeted in its surveillance-gathering efforts, FISA itself has expanded to allow American intel to be gathered along with foreign intel. As ACLU Legal Director Jameel Jaffer explained to the Guardian:

The principal purpose of the 2008 law [The FISA Amendments Act] was to make it possible for the government to collect Americans’ international communications – and to collect those communications without reference to whether any party to those communications was doing anything illegal. And a lot of the government’s advocacy is meant to obscure this fact, but it’s a crucial one: The government doesn’t need to ‘target’ Americans in order to collect huge volumes of their communications.”

Even as the legislative branch of the government attempts to make the FISA court more transparent, the intelligence end is in lockdown mode: Currently, the FBI is investigating whether the Guardian‘s recent FISA leaks came directly from Snowden or from independent security breaches targeting the court’s data banks. 

If the latter is the case, then regardless of the number of laws currently winging their way through Congress, it may be a long time yet before the government actually relinquishes its control over the real source of FISA’s power: its secrecy.

Photo via malakhkelevra/Flickr

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*First Published: Jun 20, 2013, 5:25 pm CDT