Privacy Concerns Raised During Senate Hearing on FISA's Section 702 Surveillance Programs
Supporters of a federal law that authorizes the CIA, the FBI and the NSA to spy on the electronic communications of foreigners located outside the U.S. even when they communicate with Americans told Senate Judiciary Committee members Tuesday at an oversight hearing that the 2008 law has helped identify terrorist plots and needs to be reauthorized before it sunsets at the end of 2017. But privacy advocate Elizabeth Goitein said Section 702 of the Foreign Intelligence Surveillance Act (FISA) Amendments Act in its current form isn't safeguarding the privacy of Americans who may get swept up in the surveillance and may become subject to search without a warrant.
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These questions and concerns about Section 702's impact on civil liberties are why Senate Judiciary Chairman Chuck Grassley, R-Iowa, said he was holding a hearing on the law even though it doesn't have to be reauthorized until the end of next year. "I’d like to begin the conversation about it well in advance," he said. The hearing included two members of the Privacy and Civil Liberties Oversight Board -- outgoing PCLOB Chairman David Medine and Rachel Brand -- former head of the National Counterterrorism Center and cybersecurity executive Matthew Olsen, and Kenneth Wainstein, former DOJ official and homeland security adviser to President George W. Bush.
While Brand, Olsen and Wainstein support Section 702 reauthorization as it is, Medine said several changes are needed. One is to find out the estimated number of Americans whose information has been swept into the program that is designed to focus on foreign targets. Several privacy groups and House lawmakers in recent months pressed Director of National Intelligence James Clapper about this figure and Clapper indicated movement on getting it (see 1604220050).
Ranking member Pat Leahy, D-Vt., said some people have argued that "we shouldn’t worry" because minimization procedures in Section 702 limit the use and retention of information and that they ensure deletion of Americans' collected data. "Is that enough?" Leahy asked Medine. While such minimization procedures require deletion of "innocent Americans' information" when it doesn't have any foreign intelligence value, Medine said PCLOB has found "that, in fact, information is never deleted and sits in the databases for five years or sometimes longer... And so the minimization doesn’t really address the privacy concerns of incidentally collected communications again where there’s been no warrant at all in the process. And when the government shifts its attention from the non-U.S. person to the American’s communications, there should be court approval in that exchange."
If the FISA Amendments Act isn't reauthorized, Olsen and Wainstein said it would result in slower, more burdensome investigations of potential targets. Wainstein, who now is an attorney for Cadwalader, Wickersham, called the statute a "critical remedy" to address the problem that arose with the changing technology until it was enacted in 2008. "If we were to go back to that point, we’d be back in the same situation where we have way too many surveillances that are critical to carry out and not enough manpower to do individualized orders for each of them," he said.
Before the law, Olsen, now IronNet Cybersecurity's president-consulting, said counterterrorism and other federal law enforcement officials had "a very hard time keeping up with the number of terrorist targets that we were trying to track who were not U.S. persons and who were located overseas. We were seeking individualized warrants." He said the system was "overwhelmed" because they were trying to get probable cause warrants for individuals who weren't entitled to that level of Fourth Amendment protection, but the FISA Amendments Act changed that while still being consistent with the Constitution. He also cited a PCLOB classified review that said Section 702 was the "initial catalyst that identified previously unknown terrorist operatives or plots" in 30 cases.
But Goitein, co-director-liberty and national security program at the Brennan Center for Justice at New York University School of Law, raised several concerns, including one in which the statute allows the government to do "back-door searches" on Americans with information it collects. She said the law forbids the government from "reverse targeting," which is the practice whereby an agency targets a foreigner overseas when it really intends to target a specific person in the U.S. Before doing any Section 702 surveillance, the government must certify that it doesn't intend to target specific Americans, she said.
"So this is a bait-and-switch that undermines the spirit if not the letter of the reverse targeting prohibition," Goitein said. "And, more important, it undermines the purpose of that prohibition, which is to ensure that Section 702 doesn’t become an end run around the Fourth Amendment warrant requirement and around the … FISA’s individual warrant order requirement when an American is a target."