Posted by on June 17, 2013 in Blog

By Isaac Levey
AAI Summer Legal Fellow

The recent revelations about the National Security Agency's (NSA) collection of Americans’ phone records and the PRISM program, which monitors Internet activity, have focused renewed attention on the conflict between privacy and security, and how easily the government can monitor our communications. Since the Constitution itself may not offer much protection against surveillance like this, meaningful controls must come from Congress. Surveillance is currently governed by the Foreign Intelligence Surveillance Act of 1978 (FISA), with critical amendments added by the USA Patriot Act of 2001 and the FISA Amendments Act of 2008. FISA requires that surveillance applications be made to the Foreign Intelligence Surveillance Court (FISC or FISA court), a top-secret court that issues orders authorizing surveillance and requiring telecommunications companies to turn over information.

Three congressional proposals to limit surveillance authority are worth discussing. All of them focus on 50 U.S.C. § 1861, the so-called “business records” provision of FISA that was added by the Patriot Act. It allows the government to inspect all records that are “relevant” to any investigation into “foreign intelligence information,” or to preventing terrorism or foreign intelligence collection. At the very least, we know that earlier this year the FISC read this section to cover all Verizon’s phone records of every call made in the United States.

Conyers-Amash

The most ambitious proposal is a bipartisan bill from Reps. John Conyers (D-Mich.), the Ranking Member of the House Judiciary Committee, and Arab American Chairman of the House Liberty Caucus Justin Amash (R-Mich.). The proposal, known by the acronym LIBERT-E Act, would significantly curtail the reach of section 1861, requiring that the requested records be not only relevant but “material” to antiterrorism investigations, and mandating that the government only focus on specific individuals targeted in antiterrorism investigations. The government couldn’t simply argue that the information would be generally helpful; it would need to present “specific and articulable facts” – language taken from Supreme Court decisions on police searches – that connected the information sought to terrorism investigations. It would also make it easier for telecommunications companies to challenge orders to turn over information.

The LIBERT-E Act would greatly increase oversight and transparency. It would require comprehensive reports from the Justice Department, both to Congress and the public, of the surveillance that has taken place under both sections 1861 and 1881a, a provision added in 2008 which allows virtually unlimited surveillance of non-U.S. persons outside the country without a court order. Both the Attorney General’s applications and the FISC’s interpretation of the law would generally be made public (although some classified information would be redacted). All Members of Congress would receive these reports; currently the reports are only shown to Members of the Intelligence Committees. And finally, the Act would require DOJ’s Inspector General to assess how surveillance under sections 1861 and 1881a has infringed on Americans’ privacy by estimating how many Americans have had their phone calls listened to or e-mails read under these provisions. These reports would then be made public.

Udall-Wyden

A more modest proposal comes from Sens. Mark Udall (D-Colo.) and Ron Wyden (D-Or.), both of whom sit on the Senate Intelligence Committee and have long expressed concerns over the scope of Section 1861. The Wyden-Udall proposal simply requires that an application for records under section 1861 specifically relate in some way to an individual suspected of working with a “foreign power” (which includes terrorist organizations). This would solve the most troubling aspect of the Verizon phone surveillance by preventing large-scale data-mining to look for patterns. It would require that the government only target individuals actually suspected of some connection to terrorism or foreign intelligence.

Sanders

Finally, Sen. Bernie Sanders (I-Vt.) has introduced a bill similar to the LIBERT-E Act, which narrows the scope of the surveillance authorized by section 1861. Sanders’ bill would require that any records collected relate to an antiterrorism investigation being conducted by the FBI, and, similar to the other two proposals, would require more specific evidence connecting the information sought to intelligence-gathering or antiterrorism. It would also eliminate a current provision (section 1861(b)(2)(A)(iii)) which specifically allows the targeting of an individual who is “in contact with, or known to” a suspected agent of a foreign power. In other words, the target himself must be suspected of wrongdoing, not just associated with someone who is.

Sanders’ proposal would also increase transparency and oversight. DOJ would be required to report all applications under section 1861 to Congress, as well as all opinions of the FISC granting or denying those applications. Where applications have been granted, DOJ would have to provide an analysis of how effectively the surveillance protected the U.S. from terrorism. This information would also be made available to the public with classified information redacted.

Congress Should Focus on Specificity and Transparency

The entire purpose of the FISA regime is to prevent so-called ‘dragnet surveillance’ or data-mining, and to require the government to focus its surveillance on specific individuals it suspects of wrongdoing. Indeed, the main reason the Framers of our Constitution adopted the Fourth Amendment – which prohibits the government from conducting “unreasonable searches and seizures” – was to prevent the use of “general warrants.” These were search warrants issued by the British Crown that allowed a sweeping search of someone’s house, looking for any and all evidence that the person had committed a crime. Our Constitution specifically prohibits searches like these: warrants must “particularly describ[e] the place to be searched, and the persons or things to be seized.” It is true that the Supreme Court has held that the Fourth Amendment does not apply to phone records, because individuals have no “reasonable expectation of privacy” in the phone numbers they dial. But there is no point in having a FISA court to review government surveillance at all if it’s simply going to issue general warrants allowing the government to collect “all call detail records . . . for communications, (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.”

For these reasons, the most pressing issue is the breadth of 50 U.S.C. § 1861, so it’s refreshing to see Congress address it. The Udall-Wyden proposal is perhaps the most reasonable on this score, because the LIBERT-E Act and the Sanders proposal would significantly cut down the government’s ability to conduct surveillance. Udall-Wyden would simply require demonstrating some specific connection between the surveillance sought and an antiterrorism investigation, which I believe strikes the right balance and is true to FISA’s original intention.

I am troubled, however, by Udall-Wyden’s omission of any change regarding transparency. Whatever our opinions on the permissible scope of government surveillance, all serious policymakers should agree that Americans have a right to know what the government thinks it is legally allowed to do, and what arguments are accepted or rejected by the courts. It is vital that the government’s legal theories, and the FISC’s opinions, be published with far more regularity than they are now. Obviously, classified information must be redacted from these arguments and opinions, but the regular federal courts issue opinions dealing with sensitive information quite frequently. The U.S. Court of Appeals for the District of Columbia Circuit, for example, hears cases brought by detainees at Guantánamo Bay who sue to be released. It consistently issues opinions explaining its legal reasoning without revealing classified information, and I am fully confident the FISC can as well.

We will track these proposals closely. Hopefully, the outrage over what appears to be an epidemic of warrantless surveillance will push Congress to pass language reinvigorating the FISA regime, and above all, pushing discussions of these crucial issues into the public eye. A functioning democracy requires no less.

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