The June leak of documents that confirmed the U.S. government is conducting broad surveillance of citizens’ phone records and international communications ruffled plenty of American feathers. In addition, it drew attention to the surveillance law and the little-known court that legalizes such spying activity.
The law in question is the Foreign Intelligence Surveillance Act (FISA), first established in 1978 to provide judicial oversight for foreign intelligence investigations that involved wiretaps. FISA prevented the government from wiretapping, carte blanche, any call deemed important to the investigation of a foreign threat. Before conducting such surveillance, authorities would need to get permission from a dedicated court, the Foreign Intelligence Surveillance Court.
In a set of FISA amendments in 2008, Congress broadened the government’s spying powers, allowing it to target foreigners without obtaining individual warrants. Although such eavesdropping is supposed to target foreign suspects outside the United States, it essentially permits the government to intercept Americans’ international phone calls, email, and internet activity if they can be tied to the suspect. Privacy groups like the Electronic Frontier Foundation, which details the surveillance law on its website, say the definition of who might be spied on is too loosely defined.
Because of national security concerns, all the FISA court’s decisions are classified. It remains unclear how many communications the National Security Agency has intercepted. When the government calls individuals or businesses to provide information under FISA, it also forbids them from discussing the request.
Some believe the FISA court has become a rubber stamp for executive spying schemes. According to a federal report, U.S. officials submitted 1,789 FISA court requests to conduct electronic surveillance in 2012, and withdrew one. Of the remaining 1,788 requests, the court rejected none. Since 1979, the court has rejected just 11 of 33,900 surveillance requests.
Not everyone takes the rubber stamp view: Michael Mukasey, a former attorney general under George W. Bush, told The Wall Street Journal the court often modifies surveillance requests submitted by the Justice Department, making it an effective check on executive power.
Many Republican and Democratic politicians believe the surveillance authority granted by FISA is important enough to national security to warrant giving up some privacy. When Congress approved a five-year extension of FISA last December, it rejected amendments that would have added some public transparency to the surveillance programs. In the 73-23 passage, just three Republicans voted in disapproval.
Lost in the excitement of two leaks revealing U.S. government surveillance was a third leak revealing its cyberwarfare ambitions. In an 18-page classified presidential directive published by The Guardian, President Obama last October outlined the “unique and unconventional” capabilities of “Offensive Cyber Effects Operations”—an official way of saying cyberattacks.
Such attacks could “advance U.S. national objectives around the world with little or no warning to the adversary or target and with potential effects ranging from subtle to severely damaging,” the directive said. It ordered administration officials to “identify potential targets of national importance” where cyberattacks would be most effective.
Although U.S. officials admit defending against intrusion from foreign computer hackers, they have remained mostly mum about offensive hacking efforts. The United States is believed to be behind a powerful computer worm that damaged Iranian nuclear facilities. —D.J.D.