Congress

FISA Section 702: Is warrantless surveillance national security or a hit to privacy?

House Judiciary Committee Chairman Bob Goodlatte, R-Va., shown in a file photo, said at a hearing Wednesday that Section 702 of the Foreign Intelligence Surveillance Act is “an important safeguard” before conceding that its opponents, many of them Democrats, fear it will infringe on the privacy of Americans whose communications may be inadvertently swept up during information collection on foreign targets.
House Judiciary Committee Chairman Bob Goodlatte, R-Va., shown in a file photo, said at a hearing Wednesday that Section 702 of the Foreign Intelligence Surveillance Act is “an important safeguard” before conceding that its opponents, many of them Democrats, fear it will infringe on the privacy of Americans whose communications may be inadvertently swept up during information collection on foreign targets. AP

Section 702 of the Foreign Intelligence Surveillance Act might be necessary to protect U.S. National Security or it might infringe on the privacy rights of Americans – it just depends on who you ask.

The debate over what works and what doesn’t within the section, which grants the Director of National Intelligence and Attorney General ability to authorize warrantless surveillance of non-US citizens located abroad, was the subject Wednesday at a House Judiciary Committee hearing.

Rep. Bob Goodlatte, the Republican chairman of the House Judiciary Committee, opened the meeting with a conciliatory tone. He began by claiming the section is “an important safeguard” before conceding that its opponents, many of them Democrats, fear it will infringe on the privacy of Americans whose communications may be inadvertently swept up during information collection on foreign targets.

“We must ensure that our protection doesn’t come at the expense of cherished liberty,” Goodlatte said. “Strong and effective national security tools like Section 702 and civil liberties can and must coexist.”

The controversial section, codified into law in 2008 and renewed for five years in 2012, is set to expire Dec. 31. That deadline prompted lawmakers to host a hearing – the first part classified, the second unclassified – with national security experts, government officials and others experts lending their opinion on the provision.

Rep. Ted Lieu, a Democrat from California’s 33rd Congressional District, asked the panel how Section 702 is constitutional under the Fourth Amendment if it leads to the inadvertent collection of the communications of Americans that can be used later by the FBI for any crime.

Jeffrey Kosseff, assistant professor in the United States Naval Academy’s cyber science department, said only the collection of data, and not subsequent search of already-collected data, is a Fourth Amendment issue.

“The database can be later queried for information,” he said. “The issue is whether the initial collection and entire program is lawful.”

Elizabeth Goitein, co-director of the Liberty and National Security Program at the New York University School of Law, maintained her skepticism about the constitutionality of the law.

Both the FISA court and the federal government, Goitein said, have interpreted that Section 702 grants the right to collect information “to, from or about the target.” That “about,” she said, opens up the communications of many Americans to data collection if they mention a key term or person the National Security Agency and Office of the Director of National Intelligence is monitoring.

To solve this issue, Goitein, who said 250 million internet communications were swept up under Section 702 in 2011, said the government should seek “much stricter minimization procedures” to avoid sweeping up the information of American citizens.

One way to do that, she said, is to use an IP address as a proxy to determine whether information collected is from an American citizen or a foreign national.

Another way to maintain the surveillance powers of Section 702 while strengthening American trust in the system would be to require an annual review of how it operates, said Adam Klein, a senior fellow at the bipartisan Center for a New American Security think tank.

“Once a year, the director of national intelligence and the attorney general must submit to the (FISA court) a joint certification specifying how the program will be administered and what safeguards apply,” he said.

Rep. Raúl Labrador, an Idaho Republican, tied the issue to the leaking of former National Security Advisor Michael Flynn’s communications with Russia that eventually lost him his job. He said Flynn’s ouster “had a chilling effect on me because I thought my political opponents could use my own personal information against me in the future.”

“Your communications could be acquired under Section 702,” Goitein responded, “and that is something that should concern you.”

Section 702 gained notoriety after Edward Snowden leaked information about the existence of the PRISM Program, an NSA program that gathers data through U.S. internet companies. The program is a method of information collection run under Section 702.

Under current law, the attorney general and director of national intelligence submit a request to the FISA court, asking to gather data from non-U.S. citizens under certain “targeting and minimization procedures” – monitoring non-U.S. citizens potentially harboring weapons of mass destruction, for example.

If the request is approved, the NSA can gather information on any non-U.S. citizen who falls under those parameters for up to a year period. Before the section became law, the two had to seek approval from the FISA court for the data collection of each individual non-U.S. citizen.

It still remains to be seen what would take the place of Section 702 after it expires – and whether privacy concerns would be answered.

In his statements before the panel, Rep. John Conyers of Michigan, the ranking Democrat in the committee, reminded his colleagues that the future of the law, while still uncertain, must eventually be reauthorized or replaced.

“As the sunset of this authority draws near,” Conyers said, “the manner in which one collects, maintains and disseminates this information is only lawful if Congress says it is.”

Josh Magness: 202-383-6172, @josh_mag

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