‘Concerns’ raised in NSA watchdog report, but still no meaningful oversight

Parker Higgins

Advocacy Director

E. Barrett Prettyman federal courthouse

The E. Barrett Prettyman Federal Courthouse in Washington, D.C., home to the Foreign Intelligence Surveillance Court and others.

Carol Highsmith

The National Security Agency failed to follow procedural and policy requirements surrounding the use of surveillance data collected on U.S. persons, according to a new report from the group's Office of the Inspector General. The finding, issued Monday, is the result of a "special study" conducted as part of the latest semiannual report delivered to Congress.

Stop us if you’ve heard this before. The fact is, Section 702 of the Foreign Intelligence Surveillance Act creates a giant pool of surveillance data, and misuse of that data is rampant — and has been for years. Monday's evaluation finding a “number of concerns” is thrown onto a heap of similar findings around the NSA and other intelligence agencies.

And those are just the violations we know about. In the time since the Snowden leaks cast a critical eye over much of the U.S. intelligence community, the NSA and other agencies have been compelled to report more of their misuse of surveillance data, but face little accountability. Where there are opportunities to push back against this systemic noncompliance, lawmakers have not opted to act, and courts — including the notoriously secretive Foreign Intelligence Surveillance Court, which was created specifically to provide oversight to this kind of program — have not pulled on the reins.

Just last year, that court released a ruling that found the FBI was improperly querying the same cache of data, but approved of the agency’s use. The court was — you guessed it — “concerned about the apparent widespread violations” and found that compliance was even harder to ensure since the start of the coronavirus pandemic, but did not restrict the agency’s access.

And why should it? Only months before, the same court had found that the FBI and the NSA had engaged in “widespread violations” of the same law, and offered no consequences worse than the harsh words of an opinion.

And months before that, more previously classified court opinions were published showing FBI violations of the same procedures, including in at least one case in contradiction of advice from its own general counsel. The FBI’s inspector general has found concerns of its own, including a 2020 report that found errors in every application to the FISA court that it reviewed.

At what point do these “concerns” lead to actual change? Section 702 was introduced in the FISA Amendments Act of 2008, and was renewed in 2018. It’s set to expire next year. It’s clear the FISA court can’t or won’t enforce the law around this giant pool of personal data. It’s time to let it dry up.

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