Posted by Guest on March 15, 2017 in Blog
By Samantha Leathly
The Foreign Intelligence Surveillance Act (FISA) was born in the tense political climate which followed revelations of President Richard Nixon’s alarming surveillance operations against his critics.
FISA has since been extensively amended, and is now markedly different in character. On March 1, 2017, the House Judiciary Committee held a hearing on what is perhaps the most controversial FISA amendment: Section 702. Section 702 expires in December 2017, and Congress is facing a choice to either reauthorize it, or to reform its provisions. First passed in 2008 and reauthorized in 2012, Section 702 gives the government broad discretion to gather intelligence by targeting non-US persons “reasonably believed” to be outside the United States. In contrast to the original FISA act, the intelligence community is no longer required to obtain specific court orders to target a foreign individual located overseas under Section 702; instead, the court merely approves the methods used. Though the Nixon-era FISA was intended to protect Americans from warrantless surveillance, leaks have shown that American citizens’ communications are routinely acquired ‘incidentally’. What’s more, the FBI can access this incidentally collected data through queries known as “backdoor searches”, and may use the data in prosecutions.
Fears about Section 702 center around one point: that the warrantless acquisition and retention of Americans’ communications, through ‘upstream’ collection and the PRISM program, appears to violate the Fourth Amendment. (In other words, that surveillance is conducted on U.S. citizens without a warrant). This topic dominated the House Judiciary Committee’s March 1hearing.
Two congressional witnesses - Elizabeth Goitein, Co-Director of the Liberty and National Security Program at the Brennan Center, and Adam Klein, Senior fellow at the Center for New American Security - sought estimates on the number of Americans whose communications are ‘incidentally’ collected. This information is currently classified, though Congress has requested the estimate several times. In some ways, the absence of an estimate magnifies the controversy surrounding Section 702: questions from representatives Ted Leu (D, CA-33), Ted Poe (R, TX-2), Jim Jordan (R, OH-4), and Raul Labrador (R, ID-1), which focused on the ways in which U.S. citizens’ private emails and other electronic and telephone communication may be acquired by the NSA, were lent additional weight by the fact that the number of Americans targeted is unclear.
When asked about potential Fourth Amendment violations, the third witness, April Doss (partner at Saul Ewing LLP and former counsel at the National Security Agency) suggested that the oversight required to estimate the number of U.S. citizens incidentally surveilled would incur an even greater civil liberties violation than the one already alleged. The assertion that we cannot identify potentially unconstitutional privacy breaches because such identification would breach citizens’ privacy is troublingly circular. Ultimately, Doss advocated for renewal of Section 702 without any modification.
Doss was not alone in her call to reauthorize. However, Goitein and Klein called for increased transparency to clarify the Fourth Amendment question, stricter oversight by the Privacy and Civil Liberties Oversight board, and an examination into the use of queries by the FBI and other domestic law enforcement. Witness Jeff Kosseff, an assistant professor with the US Naval Academy’s Cyber Science Department, acknowledged that estimates of the number of Americans affected by incidental collection would be helpful in future study of Section 702 programs, but ultimately advocated for reauthorization of Section 702.
Each witness in the hearing recognized that the NSA’s capabilities under Section 702 are formidable. Yet there was a sharp division of opinion among them regarding how to manage these capabilities. Many in the intelligence community argue that the NSA’s Section 702 surveillance programs must be maintained or even expanded, as these programs lend the United States an intelligence gathering edge against foreign adversaries. Others, such as witnesses Goitein and Klein, see serious potential for surveillance overreach and privacy violations in Section 702 programs, and stringently call for reform. The public appears similarly divided.
Though each witness at the March 1 hearing provided insightful testimony, it must be noted that much of Section 702’s substantive review will take place in classified hearings. Therefore, much of the information and debate surrounding Section 702 reauthorization will not be accessible to the public. However, it is my hope that while the unclassified hearings cannot answer all questions regarding Section 702’s effects, the hearings may aid the public in pondering the numerous complex, tough questions surrounding FISA (and surveillance more generally) that we face as we embark upon year one of the Trump administration.
Samantha Leathly is a Spring 2017 Intern at the Arab American Institute.