October 13, 2017
The Future of FISA
The FISA Amendments Act of 2008, and its subsequent 5-year extension in 2012, is set to expire on December 31, 2017. This little understood, yet highly controversial, law has received substantial press coverage during the last year, but little attention has been given to its pending expiration. Congress must decide by the end of the year to reauthorize, amend, or let the program expire. The 2008 act’s termination promises to provide substantive debate from national security and privacy advocates on both sides of the political spectrum and it remains to been seen if the political will exist to extend the program in its current form.
The Foreign Intelligence Surveillance Act of 1978 (FISA) was passed to standardize the process of covert data collection for suspected agents of foreign powers while they operate in the United States. In response to President Nixon’s use of FBI wiretaps against political opponents, Congress sought to apply congressional and judicial oversight to data collection procedures, while simultaneously giving the intelligence community the secrecy needed to protect national security interest. They had to balance the confidentiality required to monitor foreign agents discretely with designing safeguards that protected the due process guaranteed by the Fourth Amendment. Through FISA, Congress established the FISA Court to act as an intendent arbitrator to oversee warrant request.
The FISA Court is made up of 11 rotating justices, appointed by the Chief Justice of the U.S. Supreme Court, that meet secretly to evaluate requests from the Department of Justice (DOJ) for FISA warrants. These warrants allow for covert wiretaps and data surveillance on people reasonably suspected to be acting as agents of foreign powers in the United States. The burden of proof is higher for citizens than non-citizens, as a FISA warrant can only be approved for an American if the DOJ can provide probable cause that they “knowingly engaged in clandestine intelligence gathering activities for a foreign power which activities constitute a violation of U.S. criminal statutes.”
As communication technologies became more advanced and harder to monitor, it became increasingly difficult to assess if both sides of a phone call were originating in the United States. This led to a legal dilemma – calls made inside the country were subject to the Fourth Amendment and FISA’s jurisdiction, while calls made overseas were subject to neither. If just one side of a phone call occurred abroad, a FISA warrant did not allow U.S. authorities to monitor the call. After the September 11 attacks, Congress also recognized the need to hasten its overseas data collection programs to gauge terrorist threats and thwart imminent attacks. As cell phone use became widespread, officials could no longer guarantee data collection could be obtained both quickly and legally. This led Congress to amend FISA, expanding its authority by passing the FISA Amendments Act of 2008, which controversially added Section 702 of Title VII.
Section 702 of the FISA Amendments allows the FISA Courts to approve annual requests for warrantless surveillance of foreign individuals if they are believed to be outside of the United States. To receive yearly FISA Court certification, the Attorney General and the Director of National Intelligence must jointly submit a request to the court that set standards for what types of communications can be collected. Because the Fourth Amendment does not apply to foreign nationals outside of the United States, once the FISA Court approves the request, the intelligence community does not need to seek individual warrants for those monitored. Any surveillance of Americans abroad still requires a FISA warrant, even if the government believes they are acting as an agent of a foreign power. To further protect Americans, if communications from an American are accidently collected while monitoring foreign suspects, a practice known as incidental collection, their name is redacted or “masked” from the record. However, if a NSA analyst believes that the data collected from the American contains evidence of a crime, they can turn the data over to U.S. law enforcement to be used as evidence in criminal prosecutions.
Critics of the Section 702 say that this practice creates a legal loophole allowing law enforcement agencies to use warrantless surveillance, without judicial oversight, to prosecute Americans and this denies them proper due process. It is not known how many Americans have had their data collected incidentally since the FISA Amendments passed in 2008. In 2014, the Washington Post reported that 90 percent of all communications leaked to them by former NSA analyst, Edward Snowden, belonged to someone other than the original target of surveillance and, shockingly, over 50 percent of all communications they received belonged to American citizens. While most of the Americans in the leaked communications were masked, this relatively small sample of data collections suggested that the NSA surveillance program was significantly larger than previously conceived and incidental collection frequently occurred.
On the other side of the argument, the FISA Amendments have supporters. In June, Sen. Tom Cotton submitted a bill that would reauthorize the program indefinitely without any changes. Attorney General Sessions and the Director of National Intelligence Coats wrote a letter to Congress in September urging them to “promptly reauthorize (Section 702), in clean and permanent form.” Despite strong support from the Trump Administration and Sen. Cotton, not all Republicans are enthusiastic about Section 702 reauthorization. The Freedom Caucus, a coalition of libertarian-leaning Republicans, released a joint statement in June opposing reauthorization without substantial changes made to protect Americans from unwarranted data collection.
702 often acts as a lightning rod to criticism, because most data that proves its effectiveness is classified due to national security concerns. Advocates note that the few reports publicly available tend to showcase its success at intelligence gathering and terror prevention. The Privacy and Civil Liberties Oversight Board, an independent and bipartisan group that oversees Executive Branch actions taken to prevent terrorism, published a report in 2014 that concludes that over 25 percent of all NSA terrorism-related reports contain information gathered directly using Section 702’s authority. The report claims that the program makes a vital contribution to preventing terrorism and sanctions its extension. While much of the research that contributed to this recommendation remains classified, in 2013 NSA Director Keith Alexander testified before Congress that over 50 terror plots had been disrupted, in part by using data obtained by Section 702. Alexander said that 10 of these attacks would have occurred in the United States.
In early October, the House Judiciary Committee unveiled the USA Liberty Act, which reauthorizes the FISA Amendments for six years with reform to increase transparentcy and prevent government abuse. This bill amends Section 702 by requiring the government to obtain a warrant based on probable cause to view the content of Americans’ communications incidentally collected for criminal investigations. In addition, the government must officially retain unmasking requests so that Congress can exercise oversight and ensure Americans’ privacy is protected. This would require the Office of the Director of National Intelligence to report to Congress twice each year on the number of U.S. persons whose communications are incidentally collected, the number of unmasking requests that involve U.S. persons, and the number of requests by the intelligence community that resulted in dissemination of unmasked U.S. person identities.
It remains to be seen if the USA Liberty Act will have enough votes to initially get out of committee, then ultimately pass both the House and Senate before the December 31 deadline.