A key law authorizing intelligence agencies to acquire more than 250 million online exchanges annually is set to expire at the end of 2017, setting the stage for another battle between privacy and security advocates in Congress.
Section 702 of the Foreign Intelligence Surveillance Act was passed by Congress in 2008, though its full application went unknown to the public until it was exposed through documents leaked by Edward Snowden in 2013. The former intelligence contractor revealed that the CIA, FBI and NSA use the law to see exchanges between users on Facebook, Google, Yahoo and other platforms.
While there is no constitutional prohibition that would prevent intelligence agencies from spying on foreign nationals, who are the intended targets of the program, critics say it becomes a problem when those targets communicate with Americans.
“The argument is that a lawfully issued FISA order — in which Americans were not the target — already collected the data,” according to Bradley Moss, an attorney who specializes in national security. “So long as minimization procedures were properly applied, the thought process went that it was both permissible and logical to let the FBI conduct targeted searches of that already-collected data in furtherance of its law enforcement mission.”
Those procedures mandate that agencies “minimize the acquisition and retention” of data and “prohibit the dissemination” of nonpublic information. They also require that targeting be “reasonably designed” to “find and extract … foreign intelligence” or “evidence of a crime.”
However, those procedures were revised through an order by the Foreign Intelligence Surveillance Court last year, a redacted version of which was released in November. The opinion “clarified,” in part, “that a search of an FBI storage system containing raw-FISA acquired information does not constitute a ‘query’ … if the user conducting the search does not receive access to unminimized Section 702-acquired information in response to the search.”
In short, that removed the restriction that queries be designed to return evidence of a crime. Moss suggested that gives domestic law enforcement potentially unconstitutional power to spy on exchanges that the program collects.
“Prior to the 2015 revision … I viewed the FBI’s searches as constitutional,” Moss said. “Since the change, I have had serious concerns about the legality of the program. The FISC upheld the new changes, but the rationale was less than persuasive. It would behoove Congress to legislatively correct the gap in 702’s Fourth Amendment restrictions, if it concurs with the view that the new minimizations procedures are insufficient.”
Members of Congress have taken slight differences in tone, but most have been reticent to voice full-throated support for the program. The most enthusiastic expression in recent weeks may have come from Iowa Sen. Chuck Grassley, the Republican head of the Senate Judiciary Committee, during a May 10 hearing on the program.
“It’s true that human error has led to mistakes in implementing the law over the years,” Grassley said. “But it’s also significant that no internal or external review of the Section 702 program has ever found any instance of an intentional violation of the law.”
Others have been more skeptical. Writing to Director of National Intelligence James Clapper in April, a bipartisan 14-member group on the House Judiciary Committee demanded to know the specific number of Americans being surveilled.
“You have willingly shared information … about the important and actionable intelligence obtained under these surveillance programs,” wrote the coalition, which was headed by Rep. James Sensenbrenner, R-Wis., and ranking member Rep. John Conyers, D-Mich. “Now we require your assistance in [determining] that the privacy protections in place are functioning as designed.”
Clapper has said in public comments that his office is working on a method of providing that estimate, but has not provided a timeline for doing so. The answer may be critical in shaping what the law looks like after Congress votes on reauthorization.
Senate Judiciary’s ranking Democrat, Vermont Sen. Patrick Leahy, made that clear in his opening remarks at the latest hearing that the surveillance programs operated under Section 702 should respect “the other part of our security, our liberty and our constitutional values.
“Unless they align with that,” Leahy added, “it’s a false sense of security.”
