Myth vs. Fact on FISA collection
Rebutting Myths About Intelligence Collection Programs Under FISA
Myth #1: NSA is spying on the communications of innocent Americans by listening to their phone calls and reading their emails.
- Unless they obtain a court order based upon probable cause, U.S. intelligence agencies (including the NSA) CANNOT target U.S. persons or persons located inside the United States to obtain the content of their phone calls or emails.
- As the DNI confirmed in his statements on Thursday, the leaks this past week are about two different intelligence programs, neither of which is focused on collecting the content of the communications of Americans:
- Phone Call Metadata – Under this FISA court-authorized program, nobody is listening to your telephone calls. Instead, so-called “metadata” is collected, which consists of information that would appear on a customer's phone bill, such as the numbers dialed, as well as the date, time, and duration of the calls. This program does NOT acquire the content of anyone's phone calls.
- The program is authorized under the PATRIOT Act’s "business records" provision.
- The program works to identify terrorist leads and thwart plots inside the U.S. In order to target a U.S. person or any person inside the United States in order to listen to their phone conversations, the government would have to obtain a court order based upon probable cause.
- Internet Communications – This FISA program does NOT target U.S. persons or anyone located inside the United States to obtain the content of their emails or internet communications. This program is authorized under Section 702 of FISA, which was established by the FISA Amendments Act of 2008 and reauthorized by Congress at the end of 2012. This program operates under the supervision of the FISA Court.
- Both programs have been briefed extensively to members of Congress.
- Both programs operate pursuant to court orders issued by one of the 11 Federal judges on the Foreign Intelligence Surveillance Court.
- Both programs are overseen by lawyers and compliance auditors within the Executive Branch, including officials from the Department of Justice, the Office of the Director of National Intelligence, as well as the offices of various independent Inspectors General.
- Both programs operate pursuant to extensive “minimization” procedures, specifically approved by the FISA Court, that limit the acquisition, retention, and dissemination of information about U.S. persons.
- Both programs have produced vital intelligence that has helped to protect Americans from terrorist attack and other threats to national security.
Myth #2: Members of Congress were unaware of these programs.
- Members have had years to review these programs and raise concerns.
- The House and Senate Intelligence Committees have been briefed on an ongoing basis since the beginning of both collections.
- In addition, briefings were conducted for all House members and HPSCI staff were made available to discuss the classified details of each program before Congress reauthorized each authority in 2009, 2011 (for the Business Records authorities) and in 2012 (for the section 702 authorities).
Myth #3: NSA is stealing data from tech companies without their knowledge.
- All U.S. companies involved in these programs receive court orders that describe the information to be provided to the government and compel compliance.
Myth #4: This is just a continuation of the warrantless wiretapping program under the Bush Administration.
- Unlike the Bush Administration’s Terrorist Surveillance Program, these two programs operate within the confines of FISA. As a result, both programs are reviewed by Federal judges who are members of the Foreign Intelligence Surveillance Court.
- In addition, information regarding these classified programs has been made available to all members of Congress and Congress has acted repeatedly, with full awareness of these programs, to reauthorize both provisions of law.
Myth #5: These programs are illegal and violate the 4th Amendment.
- Both programs are legal because they operate pursuant to provisions of law that have been enacted by Congress and reauthorized on multiple occasions. The programs have been reviewed and approved by Federal judges who are members of the FISA Court.
Regarding the Phone Call Metadata:
- The Supreme Court has repeatedly held that there is no constitutionally protected privacy interest in information contained in telephone call records. Most notably, in Smith v. Maryland (1979), the Supreme Court held that because customers know they must disclose the numbers they dial to the telephone company to complete their calls, they cannot, therefore, claim "any general expectation that the numbers they dial will remain secret.” Thus, there is no legitimate expectation of privacy for these phone records and they can be obtained without a warrant.
- While telephone call records are often obtained by the government with a normal subpoena, the PATRIOT Act’s "business records" provision provides the additional protection of review by a Federal judge.
- The telephone call records provided to the government pursuant to the PATRIOT Act’s "business records" provision is the same information stored by the telephone company for its own business purposes.
Myth #6: NSA is using the "Phone Call Metadata" program to do extensive data mining on Americans' phone records.
- The court only allows the metadata to be accessed in limited circumstances where there is a reasonable suspicion, based on specific facts, that the basis for the query is associated with a foreign terrorist organization.
- The law also requires the adoption of specific minimization procedures to limit and control the use of information concerning United States Persons.
- The data is not permitted to be accessed by the court to mine the metadata on Americans’ phone records.
Myth #7: The FISA court is a rubber stamp for the Executive Branch.
- FISC judges are all practicing presidentially appointed and Senate confirmed Article III federal judges that also carry their usual Article III caseloads. These judges serve for a term on the FISA court. These judges are empowered to deny or modify the requested orders.
- Just as with criminal courts, the Executive Branch has the ability to withdraw applications for an order if it believes they will not get a favorable ruling based on hearings before the court prior to the court’s final ruling.