We examined how FISA arose from a historical backlash against the excessive use of foreign intelligence powers to surveil the activities of U.S. persons. We examined how two of FISA’s controversial powers, the business records power (section 215 of the USA PATRIOT Act, codified as 50 USC §1861) and the general acquisition power (section 702 of FISA, codified as 50 USC §1881a) and how their internal safeguards are. Now, we will examine what protections, if any, FISA offers to Internet users around the world whose private information is stored in U.S. servers, or whose data travels across U.S. networks. In brief, these safeguards are few and to make matters worse, FISA’s powers are interpreted secretly and generally isolated from any form of effective adversarial review. This makes it unlikely that Internet users outside the United States will even have the opportunity to take advantage of the few protections it offers. All this has led Privacy Researcher, Caspar Bowden, to go so far as to conclude that U.S. foreign intelligence powers “offer[] zero protection to foreigners’ data in U.S. Clouds.”
Secret Courts and Lack of Standing: Will FISA ever face adversarial review? No.While FISA provides a secret court, the Foreign Intelligence Surveillance Court (“FISC”), with authority to review some aspects of the government’s surveillance, this role is greatly void. FISC and the acquisition power (section 702 of FISA, codified as 50 USC §1881a) With respect to the acquisition power, FISC’s authority is limited to substantively reviewing the minimization and targeting criteria. Even in this regard, its review are never made public. meaning Internet users abroad can rely on few or no constitutional checks to mass surveillance.
Limited and Secret Congressional Oversight is Not Reassuring Nor is Congressional oversight a reassuring safeguard. While it is notable that of the few senators tasked with overseeing FISA (and, hence, of the few who have historically had knowledge of NSA activities under FISA), a number have publicly stated concerns over the immense scope and nature of the NSA’s surveillance. Senators Ron Wyden and Mark Udall have, for example, made voiced numerous public warnings in past years about the governments “secret legal interpretations” of the act. Regardless, Congressional oversight is limited because of the executive branch's strict secrecy rules, which prevent an informed public debate on FISA powers.
In this case we hold that this requires an appropriate prior warrant procedure. The Government’s unauthorized intelligence-gathering activities had included extensive surveillance of journalists, anti-war protestors, dissident groups, and even businesses and political opponents. The congressional hearings that followed, called the Church Committee, led to what was perhaps the first comprehensive public look at the activities of the National Security Agency–a clandestine intelligence entity that had been colloquially dubbed “No Such Agency” to reflect its unique ability to defy any attempt to document or oversee its activities.