To: The United States House of Representatives, The United States Senate, and President Donald Trump

Eliminate the United States Foreign Intelligence Surveillance Court (FISC)

OBJECTIVES:

1) Recognizing the necessity of a re-write of The Foreign Intelligence Surveillance Act of 1978 (FISA) including thorough constitutional review of all operable amendments, definitions and procedures tightening, closing loop-holes, establishing of multi-level oversights, etc., we currently call for the Elimination of the United States Foreign Intelligence Surveillance Court (FISC) as in violation of the US Constitution Article III, Sections 1 and 2, for creating secret law, for acting as a non-inferior Federal Court, for a history of US agencies’ non-compliant practices and for allowing actions taken with Section 702 collected data, e.g., parallel construction, in violation of the Fourth Amendment and Section 702 of the Foreign Intelligence Surveillance Act (FISA) .

2) Delete all stored Intelligence Community (IC) communication records of US persons other than those obtained by specific warrants on specifically named individuals in full compliance with the Fourth Amendment and Article III of the Constitution. There shall be no mass surveillance records maintained on any US persons nor any surveillance records of any US person other than obtained in strict compliance with the Fourth Amendment.

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BACKGROUND

The FISC and secret law

Upon learning that the FISC had been interpreting federal statutes and our Constitution in secret, Congress passed the USA FREEDOM Act of 2015, Public Law No: 114-23, Sec. 402. Declassification of decisions, orders, and opinions. Section 402 mandated that “... a declassification review of each decision, order, or opinion issued by the Foreign Intelligence Surveillance Court [FISC] or the Foreign Intelligence Surveillance Court of Review [FISCR] ... that includes a significant construction or interpretation of any provision of law, ... make publicly available to the greatest extent practicable each such decision, order, or opinion.”

Despite the above law specifically ordering “... a declassification review of each decision, order, or opinion issued ...”, DoJ attorneys have refused to disclose any of the FISC significant opinions/rulings which occurred between 911 and the date of the USA Freedom Act, their position being that the law is not retroactive. That’s a period of secret laws, interpreting federal statutes and our Constitution, spanning about fourteen years and which are relevant to a wide range of surveillance activities.

There is no place either within the spirit of our Constitution or its wording to allow any federal court to issue findings held in secret from the very citizens for whom our federal government exists to serve.

The FISC operates in violation of the Constitution’s Fourth Amendment.

Fourth Amendment (underlining added): The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

On January 17, 2014, Obama directed that “The results of any [FISC approved] query are limited to metadata within two hops of the selection term [for instance name or SIM card] being used” and February 5, 2014, the FISC approved of this limitation. One hop away would be to the next set of direct links, persons, entities, etc., directly connected to the original two people of the captured communication. The second hop would allow picking up all communications from everyone with whom the first hop communicated. Hence, this chain of expansion allows the capturing and storage of communications of vast numbers of US persons, without any warrants being issued, i.e., all violation of the Fourth Amendment. What makes this two hop rule even more destructive is that if one of the hops is to a government agency or for instance Google, then two hops is sufficient to include over a billion people with no warrants issued.

The new FISA Amendments Reauthorization Act of 2017 continues for six years the complete violation of every element of our Fourth Amendment. It does so by allowing the continuing collection of the private communications, e.g., telephone, emails, text messages, etc. of a US person when he or she communicates with a foreign target and warrantless collections of all other US persons within two hops. By this legislation the government bypasses all Fourth Amendment requirements of obtaining a warrant from a judge, including naming the US person, demonstrating to the judge probable cause that the US person has committed a crime, and specifying exactly what information is wanted and where it is to be collected.

The Parallel Construction violation of both Section 702 of the Foreign Intelligence Surveillance Act (FISA) and the Fourth Amendment.

Section 702 of the FISA allows the NSA to collect foreign intelligence from non-Ame...

Why is this important?

The FISC is in violation of multiple provisions of the US Constitution as identified, has a long history of creating secret law, for acting as a non-inferior Federal Court, for a history of US agencies’ non-compliant practices and for allowing actions taken with Section 702 collected data in violation of the Fourth Amendment and Section 702 of the Foreign Intelligence Surveillance Act (FISA)