In a recently unclassified opinion issued in November 2015, Judge Thomas Hogan of the Foreign Intelligence Surveillance Court (FISC) upheld rules permitting FBI agents to search the communications of Americans that were initially collected by the NSA, without a warrant, for foreign intelligence purposes, even where the FBI is investigating a purely domestic criminal case unrelated to foreign intelligence. The decision found that the rules comply with both Section 702 of the Foreign Intelligence Surveillance Act (FISA) and the Constitution. The absence of any limits on the government’s ability to search this database of communications content stands in stark contrast to the restrictions that both the President and Congress have placed on the government’s ability to collect non-content telephony records. Moreover, the FISC’s refusal to impose any limits on the use of the 702 database seems inconsistent with the position advanced by the intelligence community’s top lawyer last week, which argues for broad government authority to collect foreign intelligence information as long as the use of that information is carefully regulated.
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