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Don’t Lose Track: Here’s What’s Going On with the NSA

An independent oversight board called the NSA’s bulk collection program illegal. Then, last month, they gave the NSA a pass on warrantless collection of Americans’ calls and e-mails. Why the hands-off approach this time around?

July 8, 2014

Crossposted from Boston Review.

In January, the Privacy and Civil Liberties Oversight Board issued a report on the National Security Agency’s (NSA) bulk collection of Americans’ telephone records. The independent committee, established by Congress to review counterterrorism policies for civil liberties concerns, pulled no punches in its criticism of bulk collection. The majority held that the practice violates the Patriot Act, raises constitutional questions, and provides little counterterrorism benefit. The report’s first recommendation: shut down the program.

The report that the Board issued last week on the NSA’s activities under Section 702 of the FISA Amendments Act appears written by a different group altogether. The Board saw nothing illegal about a program allowing warrantless collection of Americans’ international calls and e-mails, as long as the government certifies that a significant purpose of the surveillance is acquiring “foreign intelligence” and its interest lies in the foreigner on the other end of the conversation. The Board deemed the “core” of the program constitutional, and addressed concerns with other aspects of the program through recommendations for procedural tweaks.

Warrant or No Warrant—That Is the Question

It is odd, to say the least, that the Board expressed less concern over warrantless surveillance of communications than bulk collection of metadata. The Supreme Court has recognized for decades that the content of our communications is protected under the Fourth Amendment. By contrast, in a ruling that is admittedly outdated, the Court held that phone metadata has no such protection.  

The newest report sees nothing illegal about warrantless collection of Americans’ international calls and e-mails.

The Board nonetheless endorsed warrantless surveillance of phone calls and e-mails, noting that some lower courts have carved out a “foreign intelligence surveillance exception” to the warrant requirement. Other than the secret FISA Court, however, all of these courts have been careful to limit the scope of this exception to cases in which the surveillance target is a foreign power or its agent. They also have insisted that acquiring foreign intelligence must be the primary purpose of collection, not just a significant purpose. Section 702 dispenses with these limits.

The Board claimed, puzzlingly, that it “takes no position here on the existence or scope of [the foreign intelligence] exception.” But the case law is clear: warrantless surveillance is an unreasonable search under the Fourth Amendment unless it falls within one of the narrow exceptions to the warrant requirement. If the foreign intelligence exception does not exist or if Section 702 surveillance exceeds its scope, the Board’s conclusion that the program is “reasonable under the Fourth Amendment” is simply wrong.

No Reforms Limiting Collection and Searches

While condoning warrantless surveillance, the report acknowledges that some aspects of the program “outside of [its] fundamental core” tread close to the constitutional line. The concerns the Board cites – such as the vast scope of “incidental” collection of Americans’ communications, and the use of foreign intelligence surveillance authorities to develop evidence for ordinary domestic criminal prosecutions – are anything but peripheral.

The Board’s recommended solutions, on the other hand, are mostly small-bore, focusing on better recordkeeping and more extensive reporting to Congress and the FISA Court. (The recommendations on public reporting are hedged with the caveat that information should be released “to the extent consistent with national security.”) These proposals are useful, as far as they go. The problem is that they do not go very far.

Most strikingly, the recommendations do not including closing the so-called “back-door search loophole.” In order to obtain communications between Americans and foreigners without a warrant, the government must certify that its interest lies in the foreigner, not the American. “Back door searches” occur when agencies, having foresworn any desire to target Americans, comb through the collected e-mails and phone calls using Americans’ phone numbers and e-mail accounts as search terms.

Back-door searches are a shameful end-run around the Fourth Amendment. Three weeks ago, the House of Representatives voted overwhelmingly to require the government to show probable cause and obtain a warrant before searching Section 702 data for information about Americans. Despite their mandate to safeguard Americans’ civil liberties, not a single member of the Board backed this common-sense approach.  

The Board also rejected proposals by privacy advocates to limit the sprawling reach of the Section 702 program. The statute’s broad definition of “foreign intelligence,” along with its failure to limit surveillance to foreign powers or their agents, enables the targeting of ordinary private citizens in whom our government has no legitimate interest. Narrowing the scope of permissible foreign targets would protect the privacy rights of innocent foreigners and the Americans with whom they communicate. Yet the Board offered no proposal to refine the targeting criteria.

What Changed?

Why the hands-off approach this time around? It is possible that the Board was swayed by its assessment of Section 702’s usefulness. Even here, though, the report seems oddly passive. After citing two specific cases in which Section 702 helped thwart a planned attack, the Board acknowledges that in both instances, “one might ask whether the government could have monitored the communications of the overseas extremists without Section 702, using the traditional FISA process.” The Board’s answer is to observe that traditional FISA limits the number of feasible targets and increases the delay before surveillance begins. But the Board conspicuously fails to address whether these limitations would have hindered efforts in the two cited cases – or any other actual cases made known to the Board.

The Board also saw little potential for abuse. It considered Section 702 “a relatively poor vehicle to repress domestic dissent” because it disallows “comprehensive monitoring of any U.S. person.” Yet surveillance need not be comprehensive to be abused. Because Section 702 sweeps so broadly, the collected communications contain a trove of information about Americans’ political and religious beliefs and behaviors. If a government official were inclined to harass activists or members of a particular ideological minority, the program could be used, at a minimum, to identify targets.

Finally, the Board put significant weight on the fact that Congress enacted Section 702 after public debate, and the executive branch has adhered to its terms. This distinguishes Section 702 surveillance from bulk collection, a secret program that matched up poorly, if at all, with the terms of the statute that supposedly authorized it.

Threats to our civil liberties, however, do not come from the executive branch alone. Starting with the Alien and Sedition Acts in 1798, Congress has frequently reacted to perceived crises with measures that were later understood to go too far. For this reason, the Privacy and Civil Liberties Oversight Board’s jurisdiction extends to legislation as well as executive action. Ironically, in view of the House vote to close the “back door search” loophole, it may be Congress itself that provides the impetus to correct course this time.