The thrust of possible future surveillance reform was outlined during a Senate hearing focused on the expiration of a law permitting the NSA’s most controversial activities.
Although Section 702 of the Foreign Intelligence Surveillance Act (FISA) Amendments Act is still valid until the end of 2017, the Senate Judiciary Committee on Tuesday got off to an early start weighing its renewal. It was the body’s first public hearing on reauthorizing the statute since 2013, when former NSA contractor Edward Snowden exposed how US spies use it for mass foreign and domestic espionage.
Reformers took aim at PRISM and Upstream collection, which both rely on Section 702. Under the pretenses of foreign spying, the programs collect hundreds of millions of digital communications by siphoning off information straight off the fiber cables that transmit internet traffic around the world, and by relying on cooperation with internet and tech companies.
Americans who interact with individuals abroad may also find their communications collected. Rather than being destroyed, those domestic contacts are stored in a database that is shared with other federal law enforcement agencies.
The Chairman of the Privacy and Civil Liberties Oversight Board (PCLOB), David Medine, testified, noting that government databases “inevitably contain deeply personal communications by, from, and concerning US persons.”
“Many of these communications have nothing to do with terrorism or crime, he added. “Rather, they can include family photographs, love letters, personal financial matters, discussions of physical and mental health, and political and religious exchanges.”
Under current law, investigators do not need to obtain a warrant before querying this database in future investigations–something privacy advocates have called a backdoor search loophole. In some cases, agents have reportedly been trained to conduct “parallel construction” of evidence to hide any tips they gleaned without a probable cause warrant.
Elizabeth Goitein with the Brennan Center for Justice told the panel that allowing backdoor searches “creates a massive end run around the Fourth Amendment’s warrant requirement.” She added that the government “collecting information without a warrant with the intent of mining it for use in ordinary criminal cases against Americans” should not be tolerated.
Supporters of Section 702, however, objected to “backdoor search” charges, claiming that the communications had been lawfully acquired using FISA-court approved “minimization procedures.”
Rachel Brand, also a member of the PCLOB, claimed that searching information already held by the government is less invasive than seeking out new information with the intent of obtaining a warrant.
Defenders of the intelligence agencies invoked recent terrorist attacks in Paris and San Bernardino to justify reauthorization.
“These attacks underscore that one of the core responsibilities of our government is to ensure that those who protect us every day, including the Intelligence Community, have the tools to keep us safe,” Sen. Chuck Grassley (R-Iowa), the committee’s chairman said.
Sen. John Cornyn (R-Texas) went as far as mischaracterizing what the law actually allows for in order to downplay privacy concerns. He claimed that “the only American citizens who will be impacted by this process without a court order will be those who are communicating with a known terrorist overseas.”
PCLOB Chair Medine promptly corrected the Senator, reminding the panel about the scope of the program.
“This program does not just target terrorists,” he stated. “This program targets anyone with foreign intelligence value. It could be a completely innocent businessman or anyone else out of the country who has that information,” Medine added.
He also called on Congress to require the government to provide information on the number of Americans who’ve had their information incidentally processed into Section 702 databases.
“In order to have an informed democratic debate about the scope of this program, it is important for citizens and members of Congress to know how many US persons are implicated,” he urged.
The government has been resisting such disclosure, claiming it would be too burdensome, and could actually lead to privacy violations since agents would be reviewing domestic records that may have gone unreviewed and eventually deleted after five years.
Sen. Patrick Leahy (D-Vt.), however, said that such transparency is “long overdue” and said it will be “critical” as the committee considers reauthorization in the future.
