The Senate Judiciary Committee held an open hearing on Tuesday on Section 702, a legal provision of the FISA Amendments Act (FAA) allowing warrantless acquisition of the communications of foreigners outside the U.S. The hearing marked the first formal review by the Senate of potential changes needed to Section 702 of the law, which is set to expire in December 2017.
In the lead-up to legislative reauthorization efforts, there is a growing demand for the release of information on the surveillance programs carried out under Section 702 of the FAA. Last December, OpenTheGovernment.org joined the Brennan Center for Justice and 30 other privacy, civil liberties, and openness groups in calling on Director of National Intelligence James Clapper to provide the public with more information on how Section 702 programs affect Americans and other U.S. residents. The information requested includes: a public estimate of the number of communications or transactions involving American citizens and residents are subject to Section 702 surveillance on a yearly basis; the number of times yearly the FBI uses a U.S. person identifier to query a database that holds this data, and the number of times the queries yield data; and the policies concerning notification of individuals that information “derived from” Section 702 surveillance will be used in judicial or administrative proceedings.
Tuesday’s hearings emphasized that importance of disclosing this information in order to enhance public debate, allow for greater Congressional oversight, and ensure independent judicial review of fundamental First Amendment and Fourth Amendment issues and policy questions. During the hearing, Senator Leahy emphasized that, despite concerns about Americans’ communications being swept up under the Section 702 programs, we still do not know how much of our data is collected under this authority:
“I understand the Intelligence Community is finally developing a methodology to estimate that figure. That effort is long overdue, and it will be critical as we consider the reauthorization of this law. It is all the more significant because both intelligence and law enforcement agencies search this data for information about Americans – without individualized judicial approval. Recent data released by the Director of National Intelligence suggests that the number of these warrantless, ‘back-door’ searches of 702 databases has doubled since 2013. These ‘back-door’ searches raise serious constitutional questions, particularly since the FBI can use them to investigate crimes having nothing to do with national security” (see Senator Leahy’s statement here).
The FBI is currently allowed to query part of the Section 702 database using U.S. person identifiers, with the express goal of retrieving and analyzing Americans’ communications. Elizabeth Goitein, Co-Director of the Brennan Center for Justice’s Liberty and National Security Program, provided testimony during the hearing, drawing attention to the privacy concerns associated with the FBI’s warrantless queries of Americans’ communications collected under Section 702. Ms. Goitein pointed out that “even though the FBI would be required to obtain a warrant in order to access Americans’ communications absent a significant foreign intelligence purpose, the FBI may search the Section 702 data for Americans’ communications to use in criminal proceedings having no foreign intelligence dimensions whatsoever” (see Ms. Goitein’s written statement here).
David Medine, current Chairman of the Privacy and Civil Liberties Oversight Board, also provided testimony that highlighted the need for additional oversight and reform of surveillance under Section 702, and several Senators emphasized the need to improve the transparency surrounding these surveillance programs. In his closing remarks, Senator Franken commented:
“When the public lacks even a rough sense of the scope of the government’s surveillance program, they have no way of knowing if the government is striking the right balance, whether we are safeguarding our national security without trampling on our citizens’ fundamental privacy rights. But the public can’t know if we succeed in striking that balance if they don’t even have the most basic information about our major surveillance programs.”