This really interesting article is by Elizabeth Goitein in Brennan Center for Justice:
In the past, when civil liberties advocates talked about the need for Foreign Intelligence Surveillance Act (FISA) reform, they were usually talking about one of the warrantless collection authorities. Under Section 702 of FISA, for instance, the government warrantlessly collects the communications of foreign targets, but then searches through the data to find the “incidentally” collected communications of Americans. Under Section 215 of the Patriot Act (which amended FISA’s “business records” provision), the government may warrantlessly collect some extraordinarily sensitive information about Americans, including communications metadata and geolocation data. In these and other cases, the solution pressed by civil liberties advocates has been the imposition of a warrant requirement.
Small wonder, then, that there has been less discussion of FISA Title I. Title I is the high-water mark of civil liberties protection under FISA, because it requires the government to show probable cause to the FISA Court that the target of surveillance is a foreign power or agent of a foreign power. Under the statutory definition, an American who acts as an “agent of a foreign power” is generally engaged in espionage or other illegal activity. A FISA Title I order targeting an American thus looks very much like a warrant in terms of the standard required to obtain one.
The report released by the Department of Justice’s Inspector General in December, however, suggests that Title I’s warrant requirement isn’t providing nearly the level of protection that it should. The report identified 17 significant problems—including inaccuracies, exaggerations, and omissions—in the applications the Department of Justice submitted to the FISA Court to conduct surveillance of former Trump campaign aide Carter Page. Moreover, the Inspector General found no evidence of political bias or any other special circumstances that would explain the problems. If, indeed, the Page applications were treated like any other, that would indicate that corner-cutting and application-padding are par for the course in FISA applications. (The Inspector General clearly shares this concern, and is now undertaking an investigation of Title I applications more broadly.)
Read the full story here.