SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 42
May 3, 2012

Secrecy News Blog: http://www.fas.org/blog/secrecy/

COUNTERINTELLIGENCE SURVEILLANCE UNDER FISA GREW IN 2011

In 2011, the US Government submitted 1,745 applications to the Foreign Intelligence Surveillance Court for authorization to conduct electronic surveillance or physical searches under the Foreign Intelligence Surveillance Act (FISA), according to a new annual report to Congress. Of these, 1,676 included requests for authority for perform electronic surveillance, the report said.

That compares to 1,579 such applications in 2010 (including 1,511 for electronic surveillance).

As is usually the case, the FIS Court did not deny any electronic surveillance applications in whole or in part last year, though it made modifications to 30 of them.

The new report says that the government filed 205 applications for business records (including "tangible things") for foreign intelligence purposes last year, compared to 96 in the previous year.

But the number of "national security letters" (a type of administrative subpoena) declined last year. In 2011, the FBI requested 16,511 national security letters pertaining to 7,201 U.S. persons, the new report said, compared to the 2010 total of 24,287 letter requests concerning 14,212 U.S. persons.

ADMIN PRESSES FOR RENEWAL OF FISA SURVEILLANCE AUTHORITY

The Obama Administration is urging Congress to renew provisions of the Foreign Intelligence Surveillance Act (FISA) Amendments Act that are set to expire at the end of this year.

"Reauthorizing this authority is the top legislative priority of the Intelligence Community," wrote Director of National Intelligence James Clapper and Attorney General Eric Holder in a February 8 letter to Congress.

One of the key provisions, they explained, would permit the electronic surveillance of entire categories of non-U.S. persons who are located abroad "without the need for a court order for each individual target."

Under this provision, "instead of issuing individual court orders, the FISC [Foreign Intelligence Surveillance Court] approves annual certifications submitted by the Attorney General and the DNI that identify categories of foreign intelligence targets."

"The provision contains a number of important protections for U.S. persons and others in the United States," according to a background paper attached to the February 8 letter, including limitations on targeting, minimization procedures to exclude information about U.S. persons, and other guidelines on acquisition.

"Failure to reauthorize [this section] would result in a loss of significant intelligence and impede the ability of the Intelligence Community to respond quickly to new threats and intelligence opportunities," the background paper stated.

Proposed legislative language to enact an extension of Title VII of the FISA Amendments Act was transmitted to Congress by the DNI in a March 26 letter.

The American Civil Liberties Union disputes the adequacy of the FISA Amendments Act's protections for U.S. persons and is challenging the constitutionality of the Act in a lawsuit that is pending before the U.S. Supreme Court. The ACLU is also asking Congress to "Fix FISA by prohibiting dragnet surveillance, mandating more transparency about the government's surveillance activities, and strengthening safeguards for privacy."

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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