Intelligence officials have quietly released a court document that gives Americans a rare glimpse into the government’s vast surveillance apparatus.
The document reveals concerning details about how federal agencies can search through Americans’ private communications with minimal oversight.
And Tulsi Gabbard’s office just published a September 2024 Foreign Intelligence Surveillance Court (FISC) opinion that shows just how much latitude intelligence agencies still have under Section 702.
Secret court reviews surveillance powers behind closed doors
The Foreign Intelligence Surveillance Court’s September ruling addresses Section 702 of the Foreign Intelligence Surveillance Act (FISA), which was reauthorized in April 2024 under the “Reforming Intelligence and Securing America Act” (RISAA).
This secretive court operates with no adversarial process – no one represents the privacy interests of Americans when these decisions are made.
According to the released document, the Justice Department’s National Security Division filed amended Section 702 certifications and revised targeting, minimization, and querying procedures for the NSA, FBI, CIA, and NCTC on July 19, 2024.
While the court found that “the amended certifications contain all the required elements and that the revised targeting, minimization, and querying procedures are consistent with applicable statutory requirements and the Fourth Amendment,” history suggests we should question whether these requirements truly protect Americans’ privacy.
FBI can still access Americans’ communications with questionable safeguards
The court document addressed the FBI’s procedures for “evidence-of-crime-only” queries – searches of foreign intelligence data solely to find evidence of criminal activity not related to national security.
The court determined that RISAA’s prohibition on FBI conducting evidence-of-crime-only queries applies only to information acquired under certifications submitted in 2024 and thereafter – creating a concerning loophole for data collected before this year.
This means the FBI can continue searching through years of Americans’ private communications collected before 2024 without the new safeguards Congress intended.
The FBI’s procedures state that queries must be “reasonably likely to retrieve foreign intelligence information,” supported by a “specific factual basis” and “reasonably tailored… without unnecessarily retrieving other information.” But these vague standards leave troubling room for interpretation.
While the procedures claim that queries “solely designed to find and extract evidence of criminal activity” are banned, the exceptions – to “assist in mitigating or eliminating a threat to life” or for discovery in litigation – could potentially be interpreted broadly.
NSA’s “travel vetting” raises Constitutional questions
The court also examined the NSA’s “travel vetting” procedures – a program that should raise serious questions about privacy and freedom of movement.
Under these procedures, the NSA can retain foreign communications of U.S. persons for five years after certification expiration, or longer if needed for intelligence purposes or if they contain encrypted data requiring cryptanalysis.
The document states that non-public U.S. person information may be shared in circumstances including if “the identity is essential to understanding intelligence” or it indicates “agent-of-foreign-power activity, crime, threat, or cyber-risk” – broad categories that could potentially sweep in innocent Americans.
While the court held that “NSA’s revised travel vetting procedures complied with FISA and the Fourth Amendment,” the standards for this conclusion remain heavily redacted, leaving Americans in the dark about how their privacy is being evaluated.
Your data could be sitting in government databases for years
The released documents reveal concerning policies about how long agencies can keep Americans’ private communications.
The FBI’s minimization procedures allow unreviewed data to be kept for “five years from the expiration date of the certification,” unless an Assistant Director finds “significant foreign intelligence information” warranting extension – a subjective standard with little external oversight.
Similarly, the NSA’s minimization procedures state personnel will “destroy information of or concerning a United States person at the earliest practicable point… such information… may be retained no longer than five years… in any event.” But what constitutes the “earliest practicable point” is left to the agency’s discretion.
Even more concerning, the NSA procedures permit retention of encrypted communications for indefinite periods: “NSA may also retain unminimized section 702-acquired information that reasonably appears to be encrypted… for any period… during which the encrypted information is subject to… cryptanalysis or deciphering.” With the rise of encrypted messaging apps, this exception could swallow the rule.
Oversight mechanisms look impressive on paper
The court opinion noted that RISAA’s requirement that the Department of Justice audit every single U.S. person query conducted by the FBI has contributed to improved compliance with privacy protections.
While the FISC stated that “FBI seems to be continuing to improve its implementation of the querying standard,” the word “seems” suggests the court itself isn’t entirely convinced of the agency’s performance.
According to the NSA’s procedures, the agency commits to “conduct oversight… including the targeting, minimization, and querying procedures… and make any necessary reports, including those relating to incidents of noncompliance, to the NSA Inspector General and NSA Office of General Counsel.” But this internal oversight lacks true independence.
The FBI’s procedures require that the “FBI Director shall promptly notify appropriate congressional leadership of any query… reasonably believed to be the name… of a member of Congress, and shall also notify the member.” This protection for lawmakers raises the question: why don’t ordinary Americans deserve the same notification?
Will Trump’s team rein in surveillance powers?
President Trump’s intelligence leadership team, with John Ratcliffe serving as CIA Director and Tulsi Gabbard as Director of National Intelligence, now faces the challenge of implementing these surveillance authorities.
Both officials bring significant experience to their roles overseeing America’s intelligence operations, including implementation of FISA authorities.
Ratcliffe previously served as Director of National Intelligence in the first Trump administration from May 2020 to January 2021, giving him valuable experience with these complex surveillance authorities.
According to the ODNI document, intelligence agencies provide classified versions of FISC opinions to the Privacy and Civil Liberties Oversight Board (PCLOB) and appropriate Congressional committees, but these oversight bodies have limited power to restrict questionable surveillance practices.
The American people deserve intelligence agencies that respect Constitutional rights while protecting national security. The question remains whether the new administration will prioritize meaningful reform.
