Friday, June 21, 2013

Myths about FISA, Creating Unfounded Support for It

While pondering why it is that Americans aren’t MORE upset about the recent revelations concerning the National Security Agency (NSA) and their use of the Foreign Intelligence Surveillance ACT (FISA), I have noticed that many people are mistaken on the basic facts. To address this, I’ve identified some common myths.  

Myth 1: The Foreign Intelligence Surveillance Court (FISC) cannot secretly collect data from American citizens without a warrant. This myth comes from sources like the Office of the Director of National Intelligence; in a written statement, the office claims “the statement that a single analyst can eavesdrop on domestic communications without proper legal authorization is incorrect (”  The language is a bit cagey. The concern is not whether an analyst can “eavesdrop.” The concern is that intelligence agencies can compile vast amounts of electronic data without probable cause. And phrases like “proper legal authorization” should immediately alert the reader that he or she is being scammed.    


1.       “Telecoms give intelligence agencies access to facilities and data ‘offshore’ so that they don't have to go through a judge to get permission (” 

2.       If a call is being made between a foreign citizen and an American, information about the American can be retained and used for intelligence-gathering purposes (

3.       The Department of Homeland Security is currently lobbying to have access to the same data that is available to NSA (

Myth 2: Information “inadvertently” obtained about American citizens CANNOT be used to prosecute the American for crimes unrelated to terrorism. One source of this myth is President George W. Bush, who firmly declared that American rights are safeguarded under FISA ( Of course, in the same statement, he alludes to the fact that Americans who happen to be overseas are fair game for electronic surveillance. 
Do as you are told.


1.       A FISA court can hand over evidence on Americans for criminal prosecution, provided that the government claims to have other means of pursuing prosecution that do not involve domestic law enforcement agencies (

Myth 3: FISA has been around for over 30 years. Making all this fuss now is just silly. OK, I haven’t seen this myth promulgated by anyone other than pedants who write comments to liberal news blogs. But it’s irritated me so much that I have to mention it. 


1.       Although FISA legislation was first signed by Jimmy Carter in 1978, several seemingly minor but terribly significant changes have been made to the legislation. Before 2001, an investigator had to certify to a FISC judge that the purpose for electronic data gathering was to collect foreign intelligence. After 2001, an investigator only needs to certify that one of the purposes of the electronic data gathering is related to collecting foreign intelligence (
2.       A “wall” separating foreign intelligence activities and domestic law enforcement did exist, but ended in 2002 (refer to Myth #2). 

Myth 4: President Obama has been honest about his intentions to “reign in” the NSA. This one comes from President Obama himself. I assume that there are some partisan democrats out there who might be convinced by it. 


1.       In 2009, President Obama declared that he would “meaningfully curtail” the McCarthy Era “State Secrets” provision which allows the Executive to fend off legal challenges to the arrest and detention of American and foreign citizens ( In 2013, President Obama continues to make use of the State Secrets provision ( Notably, the State Secrets provision was invoked by President Obama when a whistleblower revealed that all calls in one AT&T location were being filtered through a room full of NSA hardware. 

2.       Evidently willing to insult the intelligence of Americans, President Obama refers to current NSA spying practices as “transparent” ( According to the Cambridge English Business Dictionary, transparency is "a situation in which business and financial activities are done in an open way without secrets, so that people can trust that they are fair and honest" ( And according to the McMillan Dictionary, transparency is, “an honest way of doing things that allows other people to know exactly what you are doing (”

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