NSA Phone Records: A Look At the Courts That Let the Feds Tap Our Phones

So, Verizon phone calls aren’t safe anymore either. It’s frustrating. We are all upset. These surfacing domestic-spying allegations are getting repetitive and exhausting quickly.

But why do, or why can, they even occur? The United States Foreign Intelligence Surveillance Court is a good place to start.

Enacted October 25, 1978 as part of the Foreign Intelligence Surveillance Act of that same year, the FISC oversees requests for surveillance warrants against suspected foreign intelligence agents inside the U.S. by federal law-enforcement agencies (primarily the FBI). In this currently unfolding controversy, the FISC granted a warrant to the FBI on April 25, giving the government unlimited authority to obtain data from Verizon for a specified three-month period ending on July 19. This authority extended into numbers, location, call duration, and uniqueness of conversation — that is to say, a pretty clear breach of the privacy to which we feel entitled on our personal phones. But, maybe, in times of need, this breach is acceptable, or at least understandable.

The problem is, however, that this warrant-granting has become habitual. FISA courts almost never reject a request from the government. According to a May article in The Guardian, since the court’s inception it has rejected a total of zero government applications — zero — in its first 24 years of existence, while approving many thousands. And in its total 34-year history, from 1978 through 2012, the FISA court has rejected a grand total of 11 government applications, while approving more than 20,000.

Still, this wasn't enough for some people. The Bush administration decided in 2001 that it would evade "inefficient" and "cumbersome" government rules requiring it to obtain a warrant through the FISA court, and instead started to directly intercept calls and emails of citizens under what is now labeled the FISA Amendments Act of 2008. Although there was clearly no legality to what the Bush administration was doing prior to this act’s birth, politicians had effectively decided to do away with any rationale for the FISA courts. By making the courts irrelevant, D.C. officials gave away almost all incentive for the special courts to actually be effective and hold egregiously overbearing government actions accountable. The logic for the newly powerless FISA courts must have gone, "If they don’t care about you, why should you care about yourself?" 

To question the integrity of these recent government targeting and spying allegations, warranted or unwarranted, is to examine the root of the problem. The FISA Amendments Act was designed to dissolve four years after its passage — Obama voted to pass this bill in 2008, mind you — and it's now in discussion for renewal. FISA courts must also be reevaluated for being indiscriminate in their approval of warrants. It’s from these two sources that our problems emerge, and it’s only with change of these two sources that our problems can wane.