Americans' Privacy Under Debate in FISA Reauthorization

December 18, 2012

As the song says, “He knows when you’ve been sleeping, he knows when you’re awake….” Santa’s got nothing on the National Security Agency. Under a law set to expire at the end of the year, the NSA can scoop up Americans’ communications, whether they’ve been naughty or nice, without a warrant and with little oversight. Several senators have offered amendments that would impose modest limits on this sweeping power; these amendments deserve consideration and passage.

The 2008 law, called the FISA Amendments Act (FAA), legalized the crux of the Bush administration’s warrantless wiretapping program, authorizing expansive surveillance powers and removing many of the limits that FISA had imposed on the government. It was the gift to the executive branch that keeps on giving.

Indeed, the New York Times reported shortly after the statute passed that the NSA had engaged in “significant and systemic” overcollection of Americans’ communications — even trying to wiretap a member of Congress without a warrant. More recently, the NSA admitted that on at least one occasion, its collection of Americans’ communications violated the Constitution.

Under the statute, the government can conduct a program to monitor the emails and phone calls of Americans who are within the United States, as long as the communications involve one party who is “reasonably believed” to be overseas, and the government certifies both that a significant purpose is to gather foreign intelligence and that its purpose is not domestic surveillance. Before 2008, monitoring such communication required an order from the specialized Foreign Intelligence Surveillance Court. Under the FAA, however, the Court is limited to reviewing the program’s general procedures, and must accept the government’s certifications about the program’s purpose.

Moreover, “foreign intelligence” is broadly defined — notably, the communications need not relate to terrorism or even a criminal act. Thus, any American who communicates with a foreigner overseas risks having those communications swept up, whether intentionally or unintentionally, with no judicial review.

When Congress passed the FAA in 2008, it declared that the bill would automatically expire at the end of this year unless reauthorized. The House already approved the bill, and the Act will undoubtedly be renewed. But the largest domestic spying program in U.S. history merits some attention from the Senate before the chamber goes home for the holidays. Proposed amendments to the FAA from Senators Leahy, Merkley, Tester, Mark Udall, and Wyden should be debated and approved.

One critical amendment to the bill would require the NSA to provide some basic information about the breadth of its domestic information collection. The NSA has said that it is impossible to calculate the number of Americans whose communications have been intercepted under FISA, and then doubled down with the Orwellian claim that estimating that number would itself violate Americans’ privacy.

Two additional amendments would prohibit the government from using its surveillance authority as a pretext for examining Americans’ communications without the required warrant or court order. An enhanced ban on “reverse targeting” would prohibit the NSA from intercepting a foreigner’s communications where a significant purpose is to monitor the American side of the exchange, while Sen. Wyden would prohibit “back-door searches,” making it illegal for the NSA to search its storehouse for the emails or phone calls of a particular U.S. person.

Finally, almost every single decision of the Foreign Intelligence Surveillance Court is secret, including opinions that contain significant (and binding) interpretations of the law. Indeed, Senators Wyden and Udall have warned that the government, via a series of classified FISA Court rulings, is secretly interpreting an intelligence collection provision of the controversial Patriot Act in a way that would leave Americans “stunned” if they knew the details. A proposed amendment to the FAA would therefore compel the government to provide, where possible, a declassified version or an unclassified summary of the Court’s opinions, so that the public and the many senators and representatives without the necessary security clearances can understand how the law is being interpreted.

Combined with Sen. Leahy’s proposal to require the government to publicly release an unclassified version of its reports to Congress about the operation of the surveillance program — the only amendment actually guaranteed to get a vote — these measures would allow some measure of public oversight over a program that implicates Americans’ privacy, security, and fundamental values.

These amendments will not impair the government’s power to collect critical information about foreigners abroad — the supposed object of the statute. They simply require the government to provide some modest reporting to the American people about how it is using its surveillance powers, to respect the legal requirement of a warrant when targeting Americans, and to facilitate timely and meaningful oversight by Congress. If the Act is reauthorized without discussion and without these limitations, it is Americans who will be scrooged.