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Patriot Act

see domestic terror used against activists

citizens and journalists have lost 1st amendment protections (esp since 911): war on whistleblowers

http://www.tomdispatch.com/post/175856/tomgram%3A_peter_van_buren,_rip,_the_bill_of_rights/

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an 3 25

although the vast majority of anti-Elon Musk demonstrations in the United States and other countries have been peaceful, some critics of the Tesla/SpaceX/X.com leader and Donald Trump ally are resorting to destroying Teslas or committing acts of vandalism. U.S. Attorney General Pam Bondi is describing these incidents as acts of "domestic terrorism," but some civil libertarians fear that her approach could create problems for Musk opponents who are protesting in a nonviolent way.

In a U.S. Department of Justice (DOJ) press release published on Thursday, March 20, Bondi declared, "Let this be a warning: if you join this wave of domestic terrorism against Tesla properties, the Department of Justice will put you behind bars."

The U.S. attorney general and Trump loyalist discussed federal charges against three people accused of throwing Molotov cocktails at Tesla vehicles

READ MORE: Republicans have no moral authority to decide what 'domestic terrorism' is

Wired's Caroline Haskins, in an article published on March 22, reports, "Civil liberties experts claim treating alleged attacks against Tesla cars and infrastructure as terrorist activity could give federal and local law enforcement broad authority to surveil people protesting Elon Musk’s role in the government. The terrorism designation could also allow Musk and other Tesla executives to access information authorities uncover in their investigations."

Haskins notes that Bondi's statement "comes ahead of hundreds of grassroots 'Tesla Takedown' events protesting Musk and his influence in Washington that are scheduled to take place at Tesla facilities across the U.S. this weekend. The demonstrations have multiplied since they began in mid-February, with some attracting hundreds of people each."

President Trump put Musk in charge of an advisory group called the Department of Government Efficiency (DOGE), which is helping the Trump Administration with mass layoffs of federal government workers. And many Musk critics are arguing that Musk has way too much power for someone who was never elected to office.

"Most of the protests have been peaceful, and the organizers of some of them have said that they don't endorse property damage," Haskins explains. "But they are happening amid a string of alleged arson and vandalism cases targeting Tesla dealerships and charging stations, including one in Las Vegas Tuesday morning, (March 18), as well as others in Colorado and Boston. By labeling these and other incidents involving Tesla domestic terrorism, the FBI can file broader search warrants than in other types of cases."

READ MORE:'Clear and present danger': Experts alarmed at 'insanity' of Musk getting secret war plans

Haskins continues, "Under the Patriot Act, law enforcement gets 'special authorities' while investigating terrorism, including 'single-jurisdiction search warrants' from magistrate judges that apply anywhere in the U.S. instead of a single geographic area, according to a 2023 report from the Government Accountability Office. With a court order, law enforcement can additionally get 'confidential education records' from any school or agency in the course of a terrorism investigation, the report notes."

Michael German, a former FBI special agent who is now with the Brennan Center for Justice at the New York University Law School, fears that instead of focusing on extremists who are actually committing acts of violence, a DOJ/FBI probe could end up targeting anyone peacefully expressing "anger or animosity towards Tesla or Elon Musk."

German told Wired, "We've seen a lot of abuse of FBI investigative authorities, particularly around domestic advocacy groups."

READ MORE:'Are you prepared for violence?' Angry voters confront Dems over being 'too nice' to GOP*

*Read the full Wired article at this link.

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https://www.alternet.org/2020/05/mitch-mcconnells-patriot-act-expansion-would-give-bill-barr-unprecedented-spy-powers/

no lnx

julia Conley / Common Dreams May 14, 2020

Sen. Ron Wyden was joined by privacy advocates Wednesday in forcefully condemning a new proposed amendment to the PATRIOT Act put forward by Senate Majority Leader Mitch McConnell that would greatly expand the U.S. attorney general’s surveillance powers under FISA.

McConnell’s amendment, which the Senate began debating Wednesday as lawmakers took up thereauthorization of the 2001 PATRIOT Act, would explicitly permit the FBI to collect records of Americans’ internet search and browsing histories without a warrant. It would also mandate that Attorney General William Barr, and his successors, conduct an annual review of the FBI’s submissions into the Foreign Intelligence Surveillance Act (FISA) Court.

Barr would be permitted to review for “accuracy and completeness” evidence presented to the FISA Court by the FBI regarding potential surveillance targets.

“Under the McConnell amendment, Barr gets to look through the web browsing history of any American—including journalists, politicians, and political rivals—without a warrant, just by saying it is relevant to an investigation,” Wyden told the Daily Beast this week, before speaking out against the amendment on the Senate floor.

Mitch McConnell is forcing a Senate vote on his amendment to give Bill Barr warrantless access to Americans’ browsing history. I’ve heard a lot of bad ideas in my lifetime, but this is one of the worst. Tune in as I explain why: https://t.co/r53nm2HxzA

— Ron Wyden (@RonWyden) May 13, 2020

00:00

“Typical Americans may think to themselves, ‘I’ve got nothing to worry about, I’ve done nothing wrong. The government has no reason to suspect me of anything,'” said the senator. “Unfortunately, the question is not whether you did anything, the question is whether a government agent believes they have the right to look at your web searches… It is open season on anybody’s most personal information.”

“If that doesn’t give you chills I don’t know what will,” Wyden added on social media. “I’m fighting it every step of the way.”

Evan Greer, deputy director of the digital privacy group Fight for the Future, was more succinct in her rejection of McConnell’s proposal:

absolutely.

the.

fuck.

not. https://t.co/VFcRDMw2nl

— Evan Greer (@evan_greer) May 12, 2020

An amendment proposed by Wyden and Sen. Steve Daines (R-Mont.), which would have required the Justice Department to show probable cause before collecting data under the PATRIOT Act, was voted down by one vote on Wednesday. Journalist Jeremy Scahill denounced 10 Democratic senators who joined the majority of Republicans in opposing the bill, as well as Sen. Bernie Sanders (I-Vt.), who did not attend the vote.

The 10 Democrats who joined GOP in defeating amendment to stop FBI warrantless surveillance of web browser history: Carper, Casey, Feinstein, Hassan, Jones, Kaine, Manchin, Shaheen, Warner and Whitehorse. Joined 2 Republicans & a Democrat in not showing up to vote: Bernie Sanders

— jeremy scahill (@jeremyscahill) May 13, 2020

Critics raised concern that the McConnell amendment would allow the Trump administration to spy on its political opponents, with Barr giving approval of evidence used to argue in favor of beginning surveillance.

Under the proposal, the FISA Court and its amicus—an attorney appointed to challenge the government’s submissions for potential surveillance—would be limited in their ability to question the FBI’s reasoning.

McConnell would limit the involvement of an amicus only when the FBI submits an application to “targe[t] a campaign for federal office or an application that targets a United States person when the application relies for its criminal predicate on only the provisions of the Foreign Agents Registration Act.”

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Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah) proposed an amendment which would require an amicus to challenge evidence presented for targeting “a domestic religious or political organization,” a “domestic public official or political candidate,” or their staff, according to The Daily Beast.

“Adversarial process is a cornerstone of our legal system,” wrote Neema Singh Guiliani and Billy Easley of the ACLU this week. “Americans expect that when the government makes a claim in a court of law that they aren’t the only voice heard in the courtroom.”

Critics said the amendment’s provision allowing Barr—or any future attorney general—to review evidence presented to the FISA Court is likely a response to the FBI’s reasoning for conducting surveillance on President Donald Trump’s campaign aide, Carter Page.

Singh Giuliani told The Daily Beast it was “bizarre” to “create an amicus to participate when targeting political candidates, but we’re not going to provide that same oversight in cases involving religious organizations, domestic news media or everyday individuals who are facing new or significant civil rights concerns.”

“It’s hard to look at that amendment and conclude it’s intended to really address not just problems exposed by the Carter Page report but the subsequent IG audit,” she added.

The progressive group Demand Justice called McConnell’s provisions “two of the most cynical attempts to undermine surveillance reform.”

“McConnell is literally trying to take a privacy safeguard designed for the press and religious groups and instead give it only to politicians and people suspected of being foreign agents. He’s also trying to sneak warrantless surveillance of internet and search histories into an amendment that claims to prohibit it,” Sean Vitka, senior policy council for the group, told The Daily BeaST ...

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https://www.alternet.org/2020/03/with-nation-focused-on-coronavirus-rights-groups-warn-senate-against-handing-trump-terrifying-spy-powers/

no lnx

With nation focused on coronavirus, rights groups warn Senate against handing Trump ‘terrifying’ spy powers

Written by Common Dreams March 17, 2020

Ahead of a vote that could take place in the Senate as soon as Monday evening, civil liberties groups and federal lawmakers critical of mass surveillance spoke out against House-approved legislation that would reauthorize “abusive” and “dangerous” U.S. government spying powers that expired Sunday.

“If McConnell’s push through the Senate succeeds, it would renew the government’s power to warrantlessly acquire billions of data points on every person in the United States.”

—Sandra Fulton, Free Press Action

The Democrat-held House was widely criticized last week for passing the USA FREEDOM Reauthorization Act (H.R. 6172), a bipartisan compromise negotiated by leaders in the lower chamber that includes the reauthorization of Section 215 powers that Congress established under the USA PATRIOT Act in 2001, which federal agencies have used to justify the collection of Americans’ phone records.

Democratic presidential candidate Sen. Bernie Sanders (I-Vt.), a longtime critic of government spying powers, took to Twitter Monday to speak out against the new bill and note that there is opposition on both sides of the aisle:

As public concern over the ongoing coronavirus (COVID-19) pandemic continued to mount, civil liberties advocates expressed alarm that Senate Majority Leader Mitch McConnell (R-Ky.) could push through the reauthorization bill with limited scrutiny.

Sandra Fulton, government relations director for Free Press Action, wrote for Common Dreams Monday that “opposition to this legislation is gaining momentum, which is why McConnell is pushing so aggressively for a vote today while so much of the nation is focused on the coronavirus crisis.”

According to Fulton:

While the bill makes some minor reforms, they are insufficient. The USA FREEDOM Reauthorization Act fails to put in place stronger reforms favored by privacy, racial-justice, and civil-liberty advocates, most of whom support an alternative bill, the Safeguarding Americans’ Private Records Act, introduced earlier this year with bipartisan support.

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Where reforms are incorporated into the reauthorization act, they are primarily half-measures that leave huge loopholes that can be easily exploited by spying agencies. The bill includes symbolic provisions specifically tailored to address issues raised by the surveillance of [President Donald] Trump aide Carter Page, it bizarrely fails to extend those protections to everyone else living in America. And while the bill prevents the government from collecting location information without a warrant, it leaves other highly sensitive information, like internet browsing and search history, vulnerable to invasive government spying without a warrant.

Fulton argued that “it’s unthinkable to extend these spying powers to the same agencies that have so often sidestepped safeguards and ignored Americans’ fundamental privacy rights,” and urged voters to demand broader reforms and restrictions on U.S. government surveillance authority, especially given that Trump is in the White House.

“If McConnell’s push through the Senate succeeds, it would renew the government’s power to warrantlessly acquire billions of data points on every person in the United States,” she warned. “These are terrifying powers to hand to President Trump, considering his record of surveilling and abusing marginalized communities—but as we’ve seen, even some of the president’s supporters have complained that these overbroad powers were used against the Trump campaign, too.”

Digital rights group Fight for the Future encouraged voters—particularly those who may be stuck at home due to widespread school and business closures resulting from the COVID-19 outbreak—to contact their senators and encourage them to reject the “dangerous” reauthorization legislation.

The non-profit Arab American Institute highlighted some details of the legislation in a series of tweets Monday, concluding that it “does not adequately address the constitutional shortcomings of granting sweeping surveillance authorities to the federal government.” Calling for further debate and reform, the group urged the upper chamber to reject the bill.

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rhet: did we give up civil liberties in the name of "national security"? a necessary sacrifice in the war on terror?

in the name of

maybe redumbent cf god devil term, but note what BS trump has pulled in the name of national security, trade war tariffs, border wall emergency [an intensification of war on metaphor?

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‘Guantanamo on domestic soil’: The Trump administration is using an obscure provision of the Patriot Act to indefinitely detain a Palestinian manAlex Henderson

http://occupywallstreet.net/story/fusion-center-analysts-paid-surveillance-facebook-pages

At a time when the Obama Administration's defense and security policies are being more and more debated, particularly its intensive use of drone strikes, a new document illustrates the vagaries of the American antiterrorist struggle.  It's a report published this week by the progressive NGO "Center for Media and Democracy" (CMD), showing how the framework of the War on Terror put in place after the attacks of Sept. 11, 2001, gave birth to a surveillance network used against activists for Occupy Wall Street, a citizens' movement born in the United States on Sept. 17, 2011, to protest the effects of the economic crisis and denounce the defense of the interests of the rich, rebaptized the "1%," to the detriment of the other 99%.

Entitled "Dissent or Terror: How the Nation's Counter Terrorism Apparatus, In Partnership With Corporate America, Turned on Occupy Wall Street," the report analyzes documents exchanged in 2011 and 2012 by different agents in the American struggle against terrorism and obtained by journalist Beau Hoday, a CMD associate, through the Freedom of Information Act.

On page 36, this excerpt summarizes the heart of the investigation:  "One thing is clear: a reading of 'fusion center' and FBI records obtained by DBA/CMD shows that 'counter terrorism' personnel employed in the complex web of the nation's 'homeland security' aparatus have been all too eager to monitor -- to the point of obsession -- the OWS movement . . ." The result? Practices that are revealed, in some cases, to be abusive, even illegal, absurd, and often useless against activists exercising their right to free speech guaranteed by the First Amendent of the U.S. Constitution.

Journalist Beau Hodai studies above all the case of Arizona, where he studied how the Occupy Movement that took root in the city of Phoenix was surveiled from its inception by city police and local antiterrorism agents, working in concert in the aforementioned "Fusion Center."  A center initially created to "anticipate the terrorist threat" and "collect information about weapons of mass destruction."

ANALYSTS PAID FOR SURVEILLANCE OF FACEBOOK PAGES

He first informs us that to justify the surveillance of citizens who were not suspected of any criminal activity the forces of order relied on the vague vocabulary of the laws making up the PATRIOT Act that was passed in October 2001, allowing them to fight not only a terrorist threat but just about any kind of crime or danger, in the name of protecting "the critical infrastructures of the nation and its key resources."  For example, banks, in front of which Occupy activists planned to demonstrate.

We then see how this surveillance was carried out.  This goes from hiring a full-time analyst who explains, in an email obtained by the CMD, that one of the his daily tasks is surveillance of the social networks of Occupy activists (especially their Facebook pages); to the infiltration of an agent into the movement, passing himself off as a homeless person attending their meetings (which created suspicions among activists).  We also learn how an email sent by a Mr. So-and-So to the members of the surveillance network that began "Please leave the Occupy movement alone, it speaks for me and a large part of America . . . You shouldn't keep us from existing" gave rise to an investigation of this person.

These revelations offer an absurd image of the antiterrorist fight, which is also expensive.  The Phoenix fusion center thus received federal aid of $1 million to create two intelligence analyst jobs, and $71,000 were allocated to the person whose chief role was watching Occupy militants in Phoenix and Tucson on the social networks, as well as some "tribals," as CMD notes, referring to American Indians.

Matthew Rothschild, the editor-in-chief of  The Progressive and author of You Have No Rights: Stories of America in an Age of Repression, recalls that there is of course nothing new about political surveillance and infiltration.  "This tendency of the FBI, which was very common in the 1960s, has come back strong after Sept. 11, 2001, taking aim both at university campuses and groups like Code Pink (a women's antiwar group) . . . That Occupy was or is surveiled is not a great revelation.  On the other hand, I didn't think that the surveillance was organized to such a great extent.  And the link between the police and the private sector is astonishing!" he said.

INFORMATION PASSED ON TO THE PRIVATE SECTOR

In fact, the CMD report becomes even more surprising when it reveals that the information collected on Occupy Wall Street was sometimes passed on to private businesses.  In that chapter, we begin by learning that police officers of the city of Phoenix worked underground as security agents for a big meeting of ALEC (American Legislative Exchange Council) in one of the city's hotels in November 2011...  ALEC brings together elected officials and big business representatives whose goal is to think up and propose bills that favorable to its members, who have conservative and pro-business views.

We learn a few lines later that this same group, representing private interests, was given by the fusion center, without anyone knowing why, a directory of "potential disturbing elements" belonging to the Occupy Wall Street movement, who might demonstrate in front of the hotel.

"Neither the police nor the antiterrorist agencies were paid for that!" says Matthew Rothschild angrily.  "The CMD report shows that the counter terrorism agencies are providing private security for big business, when absolutely nothing indicates that they're being threatened," says Alex Vitale, a Brooklyn College sociologist who works on police methods and the surveillance of Occupy.  "That raises many questions, obviously... This report shows that the primary mission of these entities, these fusion centers, has drifted toward political surveillance without people knowing either how or why, and whether Congress and by extension the American people wanted that."

Because Arizona is only a single case... The CMD mentions the case of Boston in particular, where the fusion center also showed itself to be obsessed by Occupy, described here and there as an anarchist group.  A revelation that is sure to inspire investigations, one month after the attacks that have hit the city.

In the case of Boston, Alex Vitale prefers to remain cautious, for there's no evidence that Boston's antiterrorist unit failed in its mission.  "You have to watch out for short cuts... What these documents already show us is that resources that were supposed to be allocated to antiterrorism where diverted.  And it's not normal that the federal government infiltrate a movement that's done nothing illegal."  Did these efforts kill Occupy?  No, according to the sociologist, who thinks that mayors' edicts preventing activists from camping out in public places undermined the movement.

It remains to be explained how the fusion centers came to concentrate to this extent on Occupy Wall Street. "Is it the choice of leaders at the local level, the reaction of teams that are bored and who start to surveil easy targets?  Or is it a decision coming from the Dept. of Justice in Washington, and that informed the fusion centers' actions?" asks Alex Vitale.

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NDAA hedges http://www.alternet.org/news-amp-politics/were-post-constitutional-era?akid=11791.1076705.SFOSNT&rd=1&src=newsletter990845&t=17

http://www**.sourcewatch.**org/index.php?title=Patriot_Act_I

The USA Patriot Act (USAPA) PUBLIC LAW 107-56 (H.R. 3162) was passed by Congress on October 25, 2001 and signed into law by President George W. Bush on October 26, 2001. The popular title is acronym for the Uniting and Strengthening [of] America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act.

 Hurriedly passed in the wake of 9/11, the Act was intended to "deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes." The Act has been widely criticized as violative of Americans' privacy and civil liberties. Many of the Patriot Act's provisions were to sunset approximately four years after its passage, but after a fight between the House and Senate, the Act was renewed with few changes in March, 2006 in the PATRIOT Improvement and Reauthorization Act of 2005. Most recently, in February 2010, President Barack Obama signed a one-year extension of the act's three provisions that were set to expire.

Compare to:

Also see:

Contents

2010 Extension

Although the Patriot Act was once again set to expire in February 2010, President Obama signed a new one-year sunset of three provisions. [1] The three powers that will remain in place and unchanged for the period of March 2010 through February 2011, include: (1) "John Doe" roving wiretaps that allow surveillance multiple phones under the Foreign Intelligence Surveillance Act (FISA);(2) secret orders that allow for the seizure of "any tangible thing" held by a third party without probable cause under FISA and issued by the FISA court; (3) the so-called "lone wolf" provisionwhich allows FISA searches to target non-U.S. persons suspected of preparing for terrorist acts without showing any link to a suspected foreign terrorist group.[1] As part of a bipartisan agreement on a short-term straight extension of these provisions, Senate leadership removed changes and modest improvements to these provisions that had been adopted by the Senate Judiciary Committee, including new reporting requirements, based on the difficulty of passing them on the Senate floor without substantial hostile amendments following the special election in Massachusetts and the thwarted Christmas Day airline plot. [1]

Just before the bill passed on the House floor, Rep. Dennis Kucinich (D-Ohio) mused that "we've come to love our fears more than we love our freedoms."

The ACLU has posted a "scorecard" noting how each representative voted on the Patriot Act reauthorization.

The following are links to SourceWatch articles and external articles related to Patriot Act abuses.

Contents [hide]

Related SourceWatch articles

External articles

Archives

2002

2003

2004

2005

2007

Categories:

wiki

The Foreign Intelligence Surveillance Act of 1978 ("FISA" Pub.L. 95–511, 92 Stat. 1783, 50 U.S.C. ch. 36) is a United States federal law which prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" suspected of espionage or terrorism).[1] The Act created the Foreign Intelligence Surveillance Court (FISC) to oversee requests for surveillance warrants by federal law enforcement and intelligence agencies. It has been repeatedly amended since the September 11 attacks.

Wikisource has original text related to this article:

Foreign Intelligence Surveillance Act of 1978

Wikisource has original text related to this article:

Protect America Act of 2007

Wikisource has original text related to this article:

FISA Amendments Act of 2008

Contents

  [hide] 

History

The Foreign Intelligence Surveillance Act (FISA) was introduced on May 18, 1977, by Senator Ted Kennedy and was signed into law by President Carter in 1978. The bill was cosponsored by nine Senators: Birch Bayh, James O. Eastland, Jake Garn, Walter Huddleston, Daniel Inouye, Charles Mathias, John L. McClellan, Gaylord Nelson, and Strom Thurmond.

The FISA resulted from extensive investigations by Senate Committees into the legality of domestic intelligence activities. These investigations were led separately by Sam Ervinand Frank Church in 1978 as a response to President Richard Nixon’s usage of federal resources to spy on political and activist groups.[2] The act was created to provide judicial and congressional oversight of the government's covert surveillance activities of foreign entities and individuals in the United States, while maintaining the secrecy needed to protect national security.

Warrantless domestic wiretapping program

Main article: NSA warrantless surveillance controversy

The Act came into public prominence in December 2005 following publication by The New York Times of an article[3] that described a program of warrantless domestic wiretappingordered by the Bush administration and carried out by the National Security Agency since 2002; a subsequent Bloomberg article[4] suggested that this may have already begun by June 2000.

Provisions

The subchapters of FISA provide for:

Electronic surveillance

Generally, the statute permits electronic surveillance in two different scenarios.

Without a court order

The President may authorize, through the Attorney General, electronic surveillance without a court order for the period of one year, provided that it is only to acquire foreign intelligence information,[5] that it is solely directed at communications or property controlled exclusively by foreign powers,[6] that there is no substantial likelihood that it will acquire the contents of any communication to which a United States person is a party, and that it be conducted only in accordance with defined minimization procedures.[7]

The code defines "foreign intelligence information" to mean information necessary to protect the United States against actual or potential grave attack, sabotage or international terrorism.[5]

"Foreign powers" means a foreign government, any faction of a foreign nation not substantially composed of U.S. persons, and any entity directed or controlled by a foreign government.[8] The definition also includes groups engaged in international terrorism and foreign political organizations.[9] The sections of FISA authorizing electronic surveillance and physical searches without a court order specifically exclude their application to groups engaged in international terrorism.[10]

A "U.S. person" includes citizens, lawfully admitted permanent resident aliens, and corporations incorporated in the United States.

"Minimization procedures" limit the collection of information concerning United States persons by protecting their identities and requiring a court order to retain the communications for longer than 72 hours. The communications can be retained without court order if there is evidence of a crime. Identification of a US person, known as "unmasking", may also be authorized if an agency believes it is necessary in order to understand the intelligence or believes that the person was committing a crime.[11]

The Attorney General is required to make a certification of these conditions under seal to the Foreign Intelligence Surveillance Court,[12] and report on their compliance to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence.[13]

Since 50 U.S.C. § 1802(a)(1)(A) of this Act specifically limits warrantless surveillance to foreign powers as defined by 50 U.S.C. §1801(a) (1),(2), (3) and omits the definitions contained in 50 U.S.C. §1801(a) (4),(5),(6) the act does not authorize the use of warrantless surveillance on: groups engaged in international terrorism or activities in preparation thereof; foreign-based political organizations, not substantially composed of United States persons; or entities that are directed and controlled by a foreign government or governments.[14] Under the FISA act, anyone who engages in electronic surveillance except as authorized by statute is subject to both criminal penalties[15] and civil liabilities.[16]

Under 50 U.S.C. § 1811, the President may also authorize warrantless surveillance at the beginning of a war. Specifically, he may authorize such surveillance "for a period not to exceed fifteen calendar days following a declaration of war by the Congress".[17]

With a court order

Alternatively, the government may seek a court order permitting the surveillance using the FISA court.[18] Approval of a FISA application requires the court find probable cause that the target of the surveillance be a "foreign power" or an "agent of a foreign power", and that the places at which surveillance is requested is used or will be used by that foreign power or its agent.[2][19] In addition, the court must find that the proposed surveillance meet certain "minimization requirements" for information pertaining to U.S. persons.[20] Depending on the type of surveillance, approved orders or extensions of orders may be active for 90 days, 120 days, or a year.[21]

FISA court

Main article: United States Foreign Intelligence Surveillance Court

The Act created the Foreign Intelligence Surveillance Court (FISC) and enabled it to oversee requests for surveillance warrants by federal law enforcement and intelligence agencies (primarily the Federal Bureau of Investigation and the National Security Agency) against suspected foreign intelligence agents inside the U.S. The court is located within the E. Barrett Prettyman United States Courthouse in Washington, D.C. The court is staffed by eleven judges appointed by the Chief Justice of the United States to serve seven-year terms.

Proceedings before the FISA court are ex parte and non-adversarial. The court hears evidence presented solely by the Department of Justice. There is no provision for a release of information regarding such hearings, or for the record of information actually collected.

Main article: United States Foreign Intelligence Surveillance Court of Review

Denials of FISA applications by the FISC may be appealed to the Foreign Intelligence Surveillance Court of Review. The Court of Review is a three judge panel. Since its creation, the court has come into session twice: in 2002 and 2008.

FISC meets in secret, and approves or denies requests for search warrants. Only the number of warrants applied for, issued and denied, is reported. In 1980 (the first full year after its inception), it approved 322 warrants.[22] This number has steadily grown to 2,224 warrants in 2006.[23] In the period 1979–2006, a total of 22,990 applications for warrants were made to the Court of which 22,985 were approved (sometimes with modifications; or with the splitting up, or combining together, of warrants for legal purposes), and only 5 were definitively rejected.[24]

Physical searches

In addition to electronic surveillance, FISA permits the "physical search" of the "premises, information, material, or property used exclusively by" a foreign power. The requirements and procedures are nearly identical to those for electronic surveillance.

Remedies for violations

Both the subchapters covering physical searches and electronic surveillance provide for criminal and civil liability for violations of FISA.

Criminal sanctions follows violations of electronic surveillance by intentionally engaging in electronic surveillance under the color of law or through disclosing information known to have been obtained through unauthorized surveillance. The penalties for either act are fines up to US$10,000, up to five years in jail, or both.[15]

In addition, the statute creates a cause of action for private individuals whose communications were unlawfully monitored. The statute permits actual damages of not less than $1,000 or $100 per day. In addition, that statute authorizes punitive damages and an award of attorney's fees.[16] Similar liability is found under the subchapter pertaining to physical searches. In both cases, the statute creates an affirmative defense for law enforcement personnel acting within their official duties and pursuant to a valid court order. Presumably, such a defense is not available to those operating exclusively under presidential authorization.

Lone wolf amendment

In 2004, FISA was amended to include a "lone wolf" provision. 50 U.S.C. § 1801(b)(1)(C). A "lone wolf" is a non-U.S. person who engages in or prepares for international terrorism. The provision amended the definition of "foreign power" to permit the FISA courts to issue surveillance and physical search orders without having to find a connection between the "lone wolf" and a foreign government or terrorist group. However, "if the court authorizes such a surveillance or physical search using this new definition of 'agent of a foreign power', the FISC judge has to find, in pertinent part, that, based upon the information provided by the applicant for the order, the target had engaged in or was engaging in international terrorism or activities in preparation therefor".[25]

Constitutionality

12/15

http://www.huffingtonpost.com/the-center-for-constitutional-rights/surveillance-after-the-us_b_8827952.html

Shayana Kadidal, Senior Managing Attorney at the Center for Constitutional Rights

It has been two and a half years since Edward Snowden’s disclosures revealed the massive scope of our government’s bulk surveillance of global telecommunications. The first document to be published from Snowden’s trove showed that the secretive Foreign Intelligence Surveillance Court had ordered Verizon to turn over logs of all calls made to and from its customers.

Of the many bulk surveillance programs Snowden brought to light, this “phone records” program has continued to attract the most attention, in part because its features — surveillance of everyone in a well-defined set of American customers, under an identified statutory authority (section 215 of the PATRIOT Act) — were tailor-made to be challenged in court.

Two such challenges were successful and provoked, after years of vigorous debate, a piece of reform legislation: this summer’s USA Freedom Act, which shut down the phone records program two and half weeks ago. Anyone who watched this week’s Republican presidential debate could be excused for thinking that significant changes to post-9/11 electronic surveillance practices have taken place thanks to the work of Congress.

But has anything really changed as a result of the court challenges and the changes in the law? I would argue that we have very little reason for comfort: that the NSA probably still collects bulk “metadata,” like our phone records, that the government clearly still has access to such records even if it sits in the hands of private telecommunications companies, that bulk collection of the contents of our telecommunications is more or less unaffected, and that the main impact of the USA Freedom Act actually may have been to forestall review by the Supreme Court that might have given us more protection.

Let me step back to explain some basics. First, the law treats surveillance of the content of your communications (what you say on a phone call, what you write in an email) differently from data about the “when/where/to whom” of those communications. Simplifying wildly, the former generally requires a court order (a warrant) within the United States, though if there are links abroad, a law passed with Senator Obama’s vote, the 2008 FISA Amendments Act, allows the Foreign Intelligence Surveillance Court to rubber stamp its collection in bulk. Surveillance under section 702 of the 2008 Act (the basis for the program called PRISM in Snowden’s documents) is not significantly curtailed by the recent USA Freedom Act.

But what about the metadata surveillance? In some ways, metadata is more useful to the government than content because content generally requires labor-intensive human analysis to become meaningful to the intelligence agencies. In contrast, the records of who you talk to and when you talked to them can be very revealing when analyzed by computer — like the social graph functions on Facebook, it can easily provide a complete map of all your personal associations and interests. Mass metadata gathering is less susceptible to the needle-in-a-haystack problem than mass content gathering, because it is so readily machine-analyzable.

The phone records orders issued by the Foreign Intelligence Surveillance Court were purportedly authorized by Section 215 of the PATRIOT Act. The successful legal challenges to the program (brought by the ACLU and a right wing libertarian group, in different federal courts) proved that the program was an abuse of those powers. The political debate generated by the disclosures and the lawsuits led to the USA Freedom Act in June 2015, and the Freedom Act’s reforms included ending the bulk phone records gathering on November 29.

But, as even advocates of the Freedom Act note, there are many other ways in which the government could be sweeping in the same records. In part, that is because metadata isn’t protected by the warrant requirement the same way the content of your phone calls is. In 1978 the Supreme Court decided that the list of phone numbers you dial is something you’ve voluntarily turned over to a third party (the phone company) for their use, and thus deserves less legal protection than the actual content of what you say during the calls. Even at the time, that was recognized as an untenable distinction, but it’s not been repudiated by the Supreme Court in the 37 years since, and this “third party doctrine” now permits the government (at least according to the Justice Department) to subpoena almost anything: not just phone records but banking transaction records, where and when you use your credit cards, your web surfing habits, and on and on - pretty much anything shared with a corporate service provider.

So, even without Section 215 of the Patriot Act, and even without overly broad Foreign Intelligence Surveillance Court orders interpreting it to allow the phone records program, the government can grab these records from the phone companies or your bank or Google or any “third party” private company with just a subpoena (as Ted Cruz correctly pointed out to Marco Rubio in this week’s debate). Those subpoenas, especially when in the form of “National Security Letters,” will often be nearly impossible to challenge in court (even with the active cooperation of the telecom companies), and by eliminating the best-understood authority for such collection (the Section 215 orders leaked by Snowden), the USA Freedom Act may actually make it less likely that the Supreme Court, which has shown recent signs of skepticism about the “third party” doctrine, will actually get a crack at overturning the doctrine anytime soon.

So after two years of pretty active debate, we are where we started: the NSA collects or has ready access to everything — content and metadata — under legal authorities that seem to shift every two years or so. This legal game of whack-a-mole is made even more impossible to win by the courts: if the program is challenged by people (even lawyers) who merely fear being surveilled under it, without absolute proof that they are targets, the courts will dismiss their claims for lack of formal legal standing (See CCR v. Obama). In the rare instances where there is such proof (for example, due to accidental government disclosure), the courts will bar the evidence under the State Secrets doctrine. And in the rare cases when surveillance is used against a criminal defendant, the government seems to either create a false reconstruction of where the information came from, or simply interprets its disclosure obligations so narrowly that they cease to exist - meaning the defendants never know about the surveillance in order to be able to challenge it.

So despite the fact that some of the Republican debaters were up in arms about it, the USA Freedom Act actually has produced only very marginal gains for privacy: the call records program as we knew it has ended (though the government may be doing the same thing by different legal means), some subpoena recipients will be able to challenge gag orders stopping them from disclosing and publicly challenging them, and a public advocate of sorts has been created to make privacy arguments in the otherwise totally-secret Foreign Intelligence Surveillance Court. We shouldn’t underestimate the symbolic value of Congress passing the first law actually cutting back the scope of surveillance since the post-Watergate era. But the current state of affairs is mostly depressing, especially in light of the floodlight on these issues gifted to us by Snowden.

Luckily, the most important battle in the surveillance wars was won years ago without anywhere near as much public scrutiny: the debate over whether to restrict encryption technology, lost by the Clinton administration in the late 1990s. For all its technical prowess, until the NSA can change the laws of physics, it won’t be able to defeat simple encryption programs that are available for free all over the web. Even as cautious a figure as Snowden says as much: “encryption works. Properly implemented strong crypto systems are one of the few things that you can rely on.” Though email’s metadata is inherently vulnerable, a free Chrome/Firefox browser extension called Mailvelope can encrypt the body of your gmails to other users; a simple program called OTR (Off The Record) can do even better for google chat, and an iPhone/Android app called Signalallows for encrypted voice calls and messaging thru your phone to any of your contacts who’ve also installed it. These programs are all free and easy to install and use, and even if you don’t worry about your own communications being the object of government interest, by using them you ensure that the mere fact of encryption won’t make it easy for NSA to flag messages of activists and privacy hawks, and send a stronger message to the NSA than the passage of the Freedom Act ever could. The lesson of the last two years, and indeed of the 14 years since 9/11, is clear: stop waiting for the courts and Congress to save you, and instead, start engaging in self-help by using encryption.

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good overview:

https://www.aclu.org/other/surveillance-under-usapatriot-act

technical?

https://cyber.harvard.edu/privacy/Introduction%20to%20Module%20V.htm

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