FISA Court Needs Reform to Protect Americans’ Civil Liberties

The Foreign Intelligence Surveillance Court is no longer serving its constitutional function of providing a check on the executive branch’s ability to obtain Americans’ private communications, concludes a new report released today by the Brennan Center for Justice at NYU School of Law.

What Went Wrong with the FISA Court finds that dramatic shifts in technology and law have changed the role of the Foreign Intelligence SurveillanceCourt (FISA Court) since its creation in 1978 – from reviewing government applications to collect communications in specific cases, to issuing blanket approvals of sweeping data collection programs affecting millions of Americans.

These fundamental changes not only erode Americans’ civil liberties, but likely violate Article III of the U.S. Constitution, which limits courts to deciding concrete disputes between parties rather than issuing opinions on abstract questions. The FISA Court’s wholesale approval process also fails to satisfy standards set forth in the Fourth Amendment, which protect against warrantless searches and seizures.

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