There is a major issue within the use of the FISA-702 authority that must be immediately understood. A silo problem that is not being discussed within Congress as the potential for FISA-702 reauthorization is looming.
I’m setting aside my opinion of the entire process in order to just outline the facts as they appear. I am not in support of any of this FISA process; nor do I support the baseline premise of the NSA database capturing the private electronic communication of Americans, which I do not believe is legislatively authorized to exist.
The Office of the Director of National Intelligence (ODNI) recently released the 2023 FISC opinion on FISA-702 activity as reported by the NSA, FBI and to a lesser extent CIA and NCTC [REPORT HERE].
In this report, the Foreign Intelligence Surveillance Court (FISC) is reviewing legal compliance by the NSA and FBI in accessing the NSA database that houses the private electronic records, metadata, of every American. This is the core of the FISA-702 authorization, where 702 indicates an American citizen protected from illegal searches and seizures by the Fourth Amendment.
The NSA database contains the private electronic data (metadata) of every single American – including emails, text messages, social media posts, instant messages, direct messages, phone calls, geolocation identifiers, purchases by electronic funds, banking records and any keystroke any American person puts into any electronic device for any reason. [A big issue here is the use of Two-Factor Authentication (2FA) but that’s for a different article.]
The 2023 FISC report reviews the action of the FBI and NSA to ensure compliance with rules and restrictions in the search of this database.
The NSA and FBI report violations of the process to the FISA Court; this is somewhat of an honor system. You may have heard FBI Director Christopher Wray recently saying they have reduced the number of unauthorized searches of this database by 80%. The FBI has presumably tightened up the rules and restrictions on who and how this database can be searched.
The ODNI release only covers the compliance of the NSA and FBI (and the CIA and NCTC) to the FISA-702 rules. The CIA and NCTC are foreign mission authority only, therefore they should never even be involved in searching American citizens.