A significant provision in a contentious surveillance law is set to expire at the end of the year, and a number of lawmakers are scrambling to either re-enact the legislation permanently or find its statutory replacement.
Section 702 of the Foreign Intelligence Surveillance Act (FISA), which was created through congressional amendments to a prior bill, allows federal intelligence agencies to collect data on foreigners suspected of crimes. But due to the broad powers enumerated in the law and the inherent nature of surveillance, the electronic communications of law-abiding Americans are often scooped up as well.
Stewart Baker, the first assistant secretary for policy at the U.S. Department of Homeland Security under President George W. Bush, offered The Daily Caller News Foundation one telling example. He says imagine a hypothetical email address like “Mahmoud@gmail.com” in which it doesn’t explicitly show if Mahmoud, who may be conversing with nefarious Yemeni nationals for example, is an American or not.
Baker asserts that if the NSA knew that Mahmoud was an American, it would “usually ‘mask'” his email address with some label like “USPerson No. 1 email address.”
“Section 702 is an effective program that can’t really work if we try to exclude American’s communications,” said Baker, adding that the “‘unmasking’ provisions could be tightened up” and “they were effectively loosened as part of the sharing imperative arising from 9/11.”
Advocates of the statute, like himself, contend that it’s one of the primary ways law enforcement agents are able to nab both would-be and active terrorists.
“702 has turned out to be one of the most valuable programs that the intelligence community [IC] has for terrorism and other reasons, and I don’t hear anyone denying that,” says Baker.
Conversely, critics argue that due to loose, ambiguous language and lack of clear specifications, the provision grants the vast U.S. IC too much power, and thus leads to the inevitable violation of innocent Americans privacy through warrantless and technically illegal searches.
THE FBI REQUESTED THAT CONGRESS REQUIRE AN AGENCY BACKDOOR INTO SMARTPHONES:
Republican Sen. Rand Paul of Kentucky and Democratic Sen. Ron Wyden of Oregon, for example, recently introduced the USA RIGHTS Act to “protect the Constitutional rights of Americans” while, in their mind, stopping short of hamstringing intelligence authorities.
The bill, according to Neema Singh Guliani, the legislative counsel for the American Civil Liberties Union (ACLU), is not perfect, but “represents a significant step forward” since it refines some of the extensive liberties agencies have allegedly been taking with their surveillance practices.
Most notably, it would end the collection of communications that are not specifically sent “to and from” a spying target, as is intended by the law.
Using “legal gymnastics,” Guiliani alleges that officials within government have taken it upon themselves to collect information that is merely “about” the target, a dubious classification that opens up surveillance to a wide variety of justifications.
The NSA announced in April that it was going to stop that practice, at least temporarily, but like Guiliani, many have reservations that it will soon continue the practice, or if it even ever stopped in the first place.
“On things like that, they tend to be Boy Scouts,” Baker told The DCNF in regards to compliance of any announced policy. “The idea of saying ‘lets publicly claim to be doing one thing and then do something different’ is just not how the intelligence community tends to operate.”
Baker argues that clamoring over “about” collection is counterproductive and ill-devised since the U.S. is now missing out on important information relevant for national security during the ostensible protocol hiatus.
“Civil Libertarians of one stripe or another managed to get some restrictions put on ‘about’ collection, which turned out to be difficult to comply with and resulted in the loss of intelligence,” Baker said emphatically. “And now, they’re saying ‘Oh, what we’d now like to do since that loss has occurred, we’d like to make the loss permanent.’ It’s almost as though they first came up with hurdles, and when the agencies couldn’t get over the hurdles, they said ‘well that means instead of a hurdle we should have a 10-foot wall.'”
Privacy advocates adamantly disagree. They say there must be a way to simultaneously respect the protections promised by the Constitution, while also allowing, even fostering a robust national security infrastructure.
“The USA RIGHTS Act’s reforms are critical to protecting the civil liberties and privacy of Americans,” says Ashkhen Kazaryan, legal fellow at the nonprofit TechFreedom. She also applauds another critical reform in the law: the ending of the “backdoor search loophole.”
IC officials query its databases built under Section 702 and parse through the communications of Americans with foreign targets, which essentially means they wrongfully use “foreign intelligence for domestic investigations,” says Kazaryan.
Other analysts agree.
“The USA RIGHTS Act offers government surveillance reform that Americans need and constitutionally should have,” says Michelle Richardson, deputy director of the Freedom, Security and Technology project for the Center for Democracy & Technology (CDT), another tech and privacy-focused nonprofit. “Most importantly, it would close the backdoor loophole in Section 702 that allows the government to search the mass troves of data collected through the program for the private communications of Americans without obtaining a warrant. The law was clearly never intended for this egregious use, and the USA RIGHTS Act finally makes that clear.”
Baker, who also served as general counsel for the NSA in the ’90s, says that concerns about misapplication of the surveillance program, or misuse once personal data is obtained, have been around since the 1970s, but don’t account for the current internal makeup and conduct of the various intelligence agencies.
“We built a whole set of institutions where almost all of the professional rewards are for finding problems in the intelligence community,” Baker explains, before listing off a number of examples. “There’s a general counsel at the National Security Agency who thinks his job is to ride herd on improper uses of the capabilities of the department; they created a technical compliance arm to make sure that their technology actually implemented the policies that they were announcing; there’s an inspector general who’s there to look for abuses; there’s a chief privacy and civil liberties officer who’s job is to investigate reports of abuses. That’s just inside the agency.”
There’s also external oversight entities, like the respective bipartisan, bicameral intelligence committees in Congress, the Department of Justice, which issue subpoenas if it thinks there’s a violation of civil liberties, and a court specifically dedicated to FISA, says Baker.
“I am sure they see it as their job to ask hard questions and demand answers on the record, and then to insist that those answers on the record be checked by somebody at the Justice Department,” he continued, specifically referring to the FISA court called the Foreign Intelligence Surveillance Court (FISC). “Overall, that’s a lot of people.”
Even some proponents of reforms agree that along with of all the checks and balances between various institutions, the agencies themselves try to comply as much as possible to avoid the messiness that can ensue following a review.
“The NSA is maybe the most risk-averse group in the world — maybe second to the CIA,” Arthur Rizer, national security and justice policy director for the think tank R Street institute told TheDCNF. “It is important that we do not start the conversation by demagoguing the professionals in the intelligence community.”
Rizer, who has extensive military and intelligence experience, says he never saw anyone “twiddling their fingers together thinking of ways to violate the rights of the citizenry. These people dedicate their profession to upholding the law.”
He says the question should not be specifically centered around NSA’s conduct, but rather what the law should be.
“I strongly support a warrant requirement for criminal investigations — national security does not trump the 4th Amendment of our Constitution,” says Rizer, before adding that requiring a warrant for “pure national security investigations” is different and a difficult question to answer. He says that perhaps if “national security” was more narrowly defined, then surveillance could be limited to only what is the most necessary.
“Congress needs to make itself great again,” Rizer continued. “The real question is NOT how horrible the NSA is for exerting the law to the best of their ability.”
Not everyone is so trusting of the IC’s surveillance practices, since the majority of these governing bodies operate in secrecy relative to the outside world.
The NSA and other intelligence agencies are the gatekeepers of the information behind their own activities, so the public often just has to take their word that they are not violating people’s rights.
Senior U.S. District Judge Reggie B. Walton, who served on the FISC from 2007 until 2014, wrote in an opinion in 2013 that his court authorized a vast collection program based on a flawed premise depicted by the NSA.
“This misperception by the FISC existed from the inception of its authorized collection in May 2006, buttressed by repeated inaccurate statements made in the government’s submissions,” he wrote. Procedures dealing with privacy “have been so frequently and systemically violated that it can fairly be said that this critical element of the overall [phone records] regime has never fully functioned effectively.”
But the FISC and its officials aren’t always so forthright or critical of the processes.
“The court never approves individual targets,” said Guliani. “Once a year the government goes to the FISA court [FISC] and they say ‘here are my procedures for how I am going to target somebody, here are my procedures for how I am going to minimize data, for how I am going to treat the data consistent with the law’ … There isn’t kind of independent decision maker that you would have in a normal criminal case where the government’s going to a judge, making a probably cause finding, and then the judge signs off on that target.”
This baffles Bruce Fein, a constitutional lawyer, who’s had many high-stakes clients including the father of infamous ex-NSA contractor Edward Snowden.
“You’re having the fox guard the chicken coop here. We’re relying on an intelligence community notorious for lying all of the time; who wanted to keep the program secret forever; who’s director lied to Sen. Wyden saying they weren’t collecting data on millions of Americans,” says Fein. “They’re the ones who are going to come forth and say ‘oh yeah we did wrong?’ I mean that’s a joke.”
Fein said such a system is more analogous to other foreign governments that are often chided for their lack of freedoms and due process.
“That sounds like the oversight you get in the KGB, or the FSB or the Chinese,” Rein continued. “The whole purpose of separation of powers is because we recognize without some check, without some institution that has a different agenda, these things are going to be swept right under the rug.”
And despite outspoken criticisms, the IC often gets backing from certain members of Congress. Guliani says, like in recent years, there have been several fear-mongering appeals.
“This is the worst possible time to be tying our hands behind our back,” Republican Sen. Mitch McConnell of Kentucky warned in 2014 before a vote on a bill limiting the government’s surveillance powers.
“If ISIS had lobbyists in Washington, they would have spent millions to support the anti-Intelligence law that was just passed,” claimed Sen. Marco Rubio, after the USA Freedom Act moved through Congress.
Guiliani notes that despite the objections to that eventually-passed bill, “our intelligence capabilities weren’t kneecapped.”
“We didn’t disastrously fail to connect the dots,” she wrote in a blog post. “In fact, it turned out that bringing our intelligence authorities more in line with the Fourth Amendment did not make us less safe. Arguably, it has enhanced security by helping to focus our resources on real threats,” rather than dealing with an inundation of an indiscriminate amount of requests.
She urges that lawmakers and the public don’t fall for this line of purported reasoning for the ongoing policy debates surrounding this issue, which are now starting to heat up as the expiration or “sunsetting” date of Section 702 gets closer.
Fein predicts that surely the same fear-arousal attempts will transpire once again, likely in a report from The New York Times or The Washington Post citing intelligence officials who say a foiled terrorist plot was only detected because of the law.
Baker maintains that his arguments, which are anchored in years of first-hand intelligence experience, provides a legitimate purview into what the IC deals with. But, on the other hand, he does admit to have some concerns of Section 702, specifically that of the “unmasking” of key public officials, a term referring to when a U.S. person’s identity is supposed to be concealed, but is ultimately revealed.
Former national security adviser Michael Flynn’s ties to Russian proxies were discovered through 702 surveillance mechanisms, after what some say was a deliberate act from Obama administration officials during the lame-duck or transitional period.
“There was demonstrated abuse there for a political purpose; that’s pretty shocking,” Baker added. “It should never have happened. Finding ways to make that harder and to make it easier to find the leakers is probably a good idea, but I do tend to take the old-fashioned view that you need to find the intentional abuse, and then find ways to prevent it.”
After Flynn’s unmasking, multiple GOP officials raised skepticism over Section 702, specifically that such a loose interpretation, or careless implementation, of the law could lead to more publicizing of sensitive information. President Donald Trump levied numerous accusations against intelligence agencies, including the FBI and the CIA, for essentially trying to sabotage his presidency through leaks of classified information.
Both seemed like signs that Republicans would support the privacy side of the debate, rather than the national security camp, a general deviation from party ideals.
Paul is known for being a congressional stalwart on civil liberties and privacy, so his suggested reforms come as no surprise. But many Republicans, like Sen. Tom Cotton of Arkansas, are not changing their opinions due to hits to the Trump administration, even doubling down by calling for a permanent reauthorization of the surveillance statute.
Cotton, along with the support of 13 other Republican senators including John McCain of Arizona, Marco Rubio of Florida and Richard Burr of North Carolina, introduced legislation in June that would permanently reauthorize and cement Section 702 (as well as the entirety of Title VII) of FISA. Inklings from multiple sources show that the IC is likely to support Cotton’s bill, which is still in consideration.
The House Judiciary Committee officially proposed their own version of the legislation Wednesday that would renew the statute for six years. The bill, known as the USA Liberty Act, would mandate the FBI to acquire a warrant before reviewing any communications that arise through the perusal of criminality.
And the U.S. Senate Select Committee on Intelligence (SSCI) also introduced their own bill, but in secrecy — a move that pro-reform advocates says frustrates them and reeks of toothless, perhaps counterproductive, legislation.
Guiliani points out that so many other hearings centered around FISA and Section 702, like the proceedings for the USA Freedom Act, were conducted publicly, so why wasn’t this one?
Wyden sent a letter to his colleagues Burr, who chairs the SSCI, and Democratic Sen. Mark Warner, the ranking member of the committee, imploring them to hold an open mark-up of their prospective legislation, which passed in secrecy.
“I warned against marking up this legislation behind cloosed doors, where no one has to make public arguments for depriving Americans of their rights,” Wyden said Thursday. “When Americans see what comes out of that process, they’ll see why I was so concerned.”
Versions of their proposal, though, leaked. While it cannot be completely confirmed that the legislation is authentic (although many are understandably treating it as such), Guiliani said it doesn’t not even come close to the proper, needed reforms, and may actually do more damage. Simply put, it appears designed to reauthorize Section 702 through 2025 without many (or any) substantive changes.
Paul just wants the chance to be able to formally discuss the merits of both sides’ legislative proposals in the coming weeks and months.
“Our hope is that we’ll actually get a vote out on this [his co-sponsored bill]. The disappointing thing is that something so important as surveillance and surveillance of Americans by their own government may well not get a debate or a vote because typically what happens to things like this is, we wait until the deadline and they’re stuck on spending bills,” Paul told a handful of reporters during a media briefing. “Sen. Wyden and I are working very hard so that we get votes on these reform ideas. I’ll do whatever it takes to stop them from moving forward without a significant debate on what happens with American data and information.”
After being asked if he would be willing to filibuster any last-ditch efforts to reauthorize Section 702 without thorough discourse, a favorite tactic of his, especially during debates over policy related to the IC, Paul didn’t rule it out.
Like many others, Paul also expressed his deep apprehensiveness over Flynn’s outing, calling the leak to the media “one of the most egregious things that’s happened in the last year.” Such a situation is microcosmic for Paul, who believes that is just one example of the many potential abuses that could and likely does occur.
“The power to spy, the power to surveil, the power to listen in on conversations, is such enormous power that there has to be check and balances,” said Paul, while explaining how as technology expands so too does the spying.
Paul and Wyden’s bill has supporters from every point of the linear political spectrum. Democratic Sens. Bernie Sanders (Vt.), Elizabeth Warren (Mass.), and Al Franken (Minn) have cosponsored the bill, as has Republican Sens. Mike Lee (Utah) and Steve Daines of Montana.
There is also a companion bill in the House with Republican Reps. Justin Amash of Michigan and Thomas Massie of Kentucky and Democratic Rep. Ted Lieu of California signing on.
And the legislative battle that is heating up isn’t just centered around two main pieces of legislation in the Senate, as there is also another bill in the House called the USA Freedom Act, which was introduced earlier in the month.
While it’s not clear what will happen when the dust ultimately settles, it is becoming gradually more obvious as the expiration date of Section 702 nears that one of the policy debates of the last year, perhaps decade, is underway and intensifying.
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