In a declassified ruling, a federal judge of the Foreign Intelligence Surveillance Court (FISC) ruled that the FBI's search of Americans' emails without a warrant during criminal investigations is not contradictory to the Constitution or the FISA Amendments Act.
The November opinion, declassified by the Office of the Director of National Intelligence, affirms the use of backdoor searches by federal agencies, referencing a 2008 amendment to the FISA Amendments Act that facilitated the U.S. government's warrantless surveillance program.
FISC's Judge Thomas Hogan, a former chief judge of the court tasked with overseeing U.S. intelligence agencies, cited Section 702 of the FISA Amendments Act that allows the government to keep information obtained as part of the surveillance program if the information is “evidence of a crime.”
Hogan dismissed an argument made by Amy Jeffress, the court-appointed public advocate tasked with defending privacy rights. Jeffress, a former aide to Attorney General Eric Holder at the Department of Justice, argued that the FBI's search of these emails reaches “far beyond the purpose” of the FISA Amendments Act, which relates to gathering “foreign intelligence information.”
In his November 2015 opinion, Judge Hogan said this “would be a strained reading” of Section 702 of the FISA Amendments Act.
Legislative attempts to reform FISA's Section 702 have proved unfruitful. The most recent initiative, a 2014 bill sponsored by Rep. Zoe Lofgren (D-Calif.) and Rep. Thomas Massie (R-Ky.) was struck down by Congressional leaders in December 2014 as part of the Omnibus spending bill. It would have prevented intelligence agencies from using data that was incidentally collected from American citizens. An earlier initiative to reform FISA's Section 702 was introduced in the Senate in 2013.
The declassified November 2015 ruling also criticized the National Security Agency for violating rules that require the intelligence agency to destroy surveillance data after established periods of time.
“Perhaps more disappointing than the NSA's failure to purge this information for more than four years, was the Government's failure to convey to the Court explicitly during that time that the NSA was continuing to retain this information,” he wrote in the redacted ruling.
The Office of the Director of National Intelligence responded to the judge's concerns in a public statement that admitted “prior representations could have been clearer.” The agency wrote on its post on Tumblr, “The issue was addressed and the Government will continue to ensure that its representations are clear and fully describe its activities in implementing its Section 702 authorities.”
On Tuesday, The Electronic Frontier Foundation (EFF) filed a Freedom of Information (FOIA) lawsuit against the Justice Department to gain information about FISC orders requiring companies like Apple or Google provide technical assistance in surveillance operations.
“If the government is obtaining FISC orders to force a company to build backdoors or decrypt their users' communications, the public has a right to know about those secret demands to compromise people's phones and computers,” said Nate Cardozo, EFF Senior Staff Attorney, in a release. “The government should not be able to conscript private companies into weakening the security of these devices, particularly via secret court orders.”