WASHINGTON – A measure granting the government expansive power to intercept electronic communications in the United States without a warrant is set to expire this month, setting up a sharp debate in the Senate over how to balance privacy against national security.
The government uses the measure, contained in a law known as the FISA Amendments Act, to intercept emails and telephone calls of foreigners located overseas under a blanket approval issued once a year by a special court. But communications of U.S. citizens talking with the foreigners also are being scooped up.
The intelligence community argues that the measure is essential to protect against foreign threats and has made renewing the law its top legislative priority. The House of Representatives approved a five-year extension in September by a vote of 301 to 118. The Senate must vote by the end of the year or the authority will expire.
Opposition has surfaced among a small, bipartisan group of senators worried that Americans engaged in harmless communications with foreigners could be monitored without a warrant or other privacy protections.
Under the law, a special court whose proceedings are secret issues a yearly certification that permits the government to monitor the emails and phone calls of foreigners if the government can satisfy the court that its procedures will target people located overseas and ensure the privacy of U.S. citizens caught in the monitoring. Targeting the communications of a U.S. citizen or anyone inside the United States requires a warrant.
One of the complaints of the senators and civil liberties advocates is that the government refuses to disclose the number of U.S. citizens and residents whose communications have been collected or reviewed under the law.
“You have this potentially large pile of communications and nobody knows how many Americans are in that pile,” Sen. Ron Wyden, a member of the Senate Intelligence Committee, said in an interview.
Wyden has threatened to block a vote on reauthorization unless Senate leaders agree to a debate on changes that will add safeguards for U.S. persons.
Twelve other senators, including conservative Sen. Mike Lee, have joined Wyden in pushing to require the government to provide an estimate of how many communications involving U.S. citizens have been collected under Section 702 of the statute. The senators also want the government to obtain a court-approved warrant before deliberately searching electronic data for individual Americans.
“The government ought not (to) be able to search through that database for information about a U.S. citizen without a court order because that becomes akin to a warrantless wiretap,” Lee said.
The law was passed in 2008 as an update to the 1978 Foreign Intelligence Surveillance Act. It expanded the government’s power to conduct electronic surveillance on U.S. soil for foreign targets overseas without individual warrants.
The Obama administration, like the George W. Bush administration, has defended the program as vital to quickly gather information about terrorists and other threats.
“There is no question that we’ve gotten valuable information that has led to intelligence and national security successes,” said Robert Litt, general counsel for the Office of the Director of National Intelligence, in a press call this year. “This would really create a risk for our security if we lost this capability.” He cited “specific incidents both involving terrorist attacks and other kinds of threats where we have been able to thwart them or gain insight into them as a result of this collection activity.” However, he declined to elaborate.
Litt said estimating the number of communications by U.S. citizens collected “incidentally” under FISA cannot be done with any degree of accuracy. But he said the law is not “a tool for spying on Americans.”
Jameel Jaffer, American Civil Liberties Union deputy legal director, countered that the law provides the government with too much leeway. “It’s a law that gives the government almost unchecked power to monitor Americans’ communications,” he said in an interview. “It’s indefensible that anyone’s even thinking about reauthorizing it without asking questions about the law’s use.”
The ACLU sued the government over the law’s constitutionality. A federal judge threw out the suit, saying the plaintiffs lacked standing, but the U.S. Court of Appeals for the 2nd Circuit reinstated it. The case was argued in October before the Supreme Court, which is considering only whether the plaintiffs have standing to proceed with their challenge.
Several of the top court’s justices expressed concern that lawyers, journalists and human rights researchers may never be able to challenge the law in court.
Those contesting Congress’s 2008 amendments say they are in a Catch-22: The government says they cannot challenge the law unless they can show that their communications are under surveillance, but such information is strictly secret.
Solicitor General Donald Verrilli told the justices that it is not enough for those who want to challenge the law to speculate that they may be affected by it. “The government conduct being challenged has to either have occurred or be ‘certainly impending,’ ” Verrilli said, quoting from one of the court’s precedents.
That prompted a chorus of questions from the court’s liberals about whether anyone would ever be able to challenge the law. The targets overseas have no constitutional rights, and their U.S. lawyers are not technically the subjects of the wiretaps, they said.
However, Justice Antonin Scalia said that even if no one is in a position to challenge the law, so what? “We’ve had cases in the past where it is clear that nobody would have standing to challenge what is brought before this court,” Scalia said. “And we’ve said that that just proves that under our system of separated powers, it is none of our business.”
The procedures involved in monitoring foreign communications remain largely hidden. Officials in the communications industry said the government gives companies the email addresses, phone numbers, user names and other identifiers of foreign targets to tap.
The lists could run to dozens or hundreds of identities, said the officials, who spoke on the condition of anonymity to discuss sensitive details. The companies divert electronic copies of the communications in real time to a special FBI facility in northern Virginia. In the case of email, the government may receive virtual replicas of people’s entire in-boxes, the officials said.
The National Security Agency stores the data for translation and analysis. Automated tools help analysts find links in the communications among, say, the emails of five members of a suspected terrorist cell.
“Some sniffer is looking for similarities among their contacts,” said a former federal official, who spoke on condition of anonymity because of the topic’s sensitivity. “If all five are talking to a sixth, that sixth is going to be a person of interest.”
The law allows for the collection of communications across a broad spectrum of “foreign intelligence” topics and threats, which include nuclear proliferation, foreign diplomats and extremist groups. Critics say the wide range increases the chances that Americans who are not targets of surveillance will have their communications picked up.
Intelligence officials say a warrant requirement would be burdensome and unnecessary, given that the information has been lawfully collected. They note that they have regularly briefed Congress on the program’s operations.
Their reports to Congress have identified no cases of intentional or systematic misuse, according to a Senate Judiciary Committee review. But Wyden said the special court has already found that the government’s efforts to protect the privacy of U.S. citizens failed on at least one occasion.