Skip to main content
Menu

Main navigation

  • About
    • Annual Reports
    • Leadership
    • Jobs
    • Student Programs
    • Media Information
    • Store
    • Contact
    LOADING...
  • Experts
    • Policy Scholars
    • Adjunct Scholars
    • Fellows
  • Events
    • Upcoming
    • Past
    • Event FAQs
    • Sphere Summit
    LOADING...
  • Publications
    • Studies
    • Commentary
    • Books
    • Reviews and Journals
    • Public Filings
    LOADING...
  • Blog
  • Donate
    • Sponsorship Benefits
    • Ways to Give
    • Planned Giving

Issues

  • Constitution and Law
    • Constitutional Law
    • Criminal Justice
    • Free Speech and Civil Liberties
  • Economics
    • Banking and Finance
    • Monetary Policy
    • Regulation
    • Tax and Budget Policy
  • Politics and Society
    • Education
    • Government and Politics
    • Health Care
    • Poverty and Social Welfare
    • Technology and Privacy
  • International
    • Defense and Foreign Policy
    • Global Freedom
    • Immigration
    • Trade Policy
Live Now

Blog


  • Blog Home
  • RSS

Email Signup

Sign up to have blog posts delivered straight to your inbox!

Topics
  • Banking and Finance
  • Constitutional Law
  • Criminal Justice
  • Defense and Foreign Policy
  • Education
  • Free Speech and Civil Liberties
  • Global Freedom
  • Government and Politics
  • Health Care
  • Immigration
  • Monetary Policy
  • Poverty and Social Welfare
  • Regulation
  • Tax and Budget Policy
  • Technology and Privacy
  • Trade Policy
Archives
  • March 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • October 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • November 2010
  • October 2010
  • September 2010
  • August 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010
  • March 2010
  • February 2010
  • January 2010
  • December 2009
  • November 2009
  • October 2009
  • September 2009
  • August 2009
  • July 2009
  • June 2009
  • May 2009
  • April 2009
  • March 2009
  • February 2009
  • January 2009
  • December 2008
  • November 2008
  • October 2008
  • September 2008
  • August 2008
  • July 2008
  • June 2008
  • May 2008
  • April 2008
  • March 2008
  • February 2008
  • January 2008
  • December 2007
  • November 2007
  • October 2007
  • September 2007
  • August 2007
  • July 2007
  • June 2007
  • May 2007
  • April 2007
  • March 2007
  • February 2007
  • January 2007
  • December 2006
  • November 2006
  • October 2006
  • September 2006
  • August 2006
  • July 2006
  • June 2006
  • May 2006
  • April 2006
  • Show More
January 18, 2018 1:09PM

Fear and Mass Surveillance: Our Constitutionally Toxic Political Cocktail

By Patrick G. Eddington

SHARE

At 12:51pm on January 18, 2018--just a day before it was set to expire--the Senate followed the House's lead and reauthorized the Foreign Intelligence Surveillance Amendments Act (FAA) Section 702 mass surveillance program for another six years by a vote of 65-34.

Writing for JustSecurity.org in October 2017, I made this prediction about the then-looming debate over extending the mass surveillance authority embodied in Section 702: 

Absent another Snowden-like revelation, Section 702 of the FAA will be reauthorized largely without change, and any changes will be cosmetic, and almost certainly abused. Whether it has a “sunset” provision or not is now politically and practically meaningless.

As it turns out, that prediction was optimistic. But first, a recap of the events of this week.

The real drama took place Tuesday evening, when Senate Majority Leader Mitch McConnell (R-KY) held open the procedural vote to end debate on the underlying Section 702 bill, S. 139, by some 90 minutes. The last two holdouts--John Kennedy (R-LA) and Claire McCaskill (D-MO) were worked over by anti- and pro-Section 702 forces on the Senate floor, with Senate Intelligence Committee Chairman Richard Burr (R-NC) calling in reinforcements in the form of Director of National Intelligence Dan Coats to help strong-arm Cassidy and McCaskill into voting to end debate on the bill. The pressure worked, with McCaskill providing the key vote to kill any chance of amending a bill that Senators Ron Wyden (D-OR) and Rand Paul (R-KY) declared was a direct threat to the Fourth Amendment rights of Americans.

Speaking after the procedural vote to kill debate on S. 139, Kennedy told reporters, "I was undecided when I walked on the floor, but the program expires Friday, and I don't want to play with fire. This is an important program."

Kennedy's "playing with fire" reference was a clear manifestation of the political fear he felt. After admitting he was undecided, he elected to be swayed by that fear--fear that the program would lapse without his vote. Fear stoked by the presence of DNI Coats, hovering just off of the Senate floor. Fear that if anyone died in a Salafist-initiated domestic terrorist attack in the period of time between the program's alleged expiration and renewal, he (Kennedy) would be blamed for it. His Missouri colleague, McCaskill, who is up for reelection this year in what will no doubt be a tough fight in a state Trump won in 2016, probably went through exactly the same things in her mind before casting the deciding vote to end debate and move S. 139 forward--with no chance to amend it. 

But would the Intelligence Community have have "gone dark" if the Senate had elected to continue debate beyond January 19 and allow amendments to the bill? No.

FISA Court orders issued under Section 702 are generally a year in length, which means that any orders issued prior to the technical legal expiration date would've been valid for another 12 months. Additionally, Section 702 is not the only authority under which the National Security Agency (NSA) can collect foreign intelligence information. Executive Order 12333, originally issued during the first Reagan administration, provides sweeping overseas intelligence collection authority that, at present, is not subject to any judicial review.

Indeed, it's EO 12333 that makes possible programs like RAMPART-A, as revealed in the Snowden Archive and reported by The Intercept in 2014:

It has already been widely reported that the NSA works closely with eavesdropping agencies in the United Kingdom, Canada, New Zealand, and Australia as part of the so-called Five Eyes surveillance alliance. But the latest Snowden documents show that a number of other countries, described by the NSA as “third-party partners,” are playing an increasingly important role – by secretly allowing the NSA to install surveillance equipment on their fiber-optic cables.

The NSA documents state that under RAMPART-A, foreign partners “provide access to cables and host U.S. equipment.” This allows the agency to covertly tap into “congestion points around the world” where it says it can intercept the content of phone calls, faxes, e-mails, internet chats, data from virtual private networks, and calls made using Voice over IP software like Skype.

Not surprisingly, Senator Burr failed to mention these facts during his pitch to his colleagues to renew the Section 702 program on Tuesday or today.

Also on Tuesday, Burr made the following assertions:

Let me just say from the start, this is the single most reviewed program that exists in the Federal Government. This is reviewed congressionally--it is reviewed by the courts, it is reviewed by the DNI, it is reviewed by the inspector general and the Department of Justice--because, on the committee, we realize this requires not just the stamp of approval from Congress but the assurance by the Intelligence Committee and by every branch of government that it lives within the parameters we set.

Let's examine each of these claims in turn.

Congressional review: Because House and Senate Intelligence Committee proceedings take place in secret, the public has no access to the committee hearing transcripts. We don't how exacting the questioning is, whether a committee had to employee a subpoena to get documents or witness cooperation, or what independent inquiries--like the Senate Intelligence Committee investigation into the CIA's torture program--have actually been conducted into Section 702 or any other program. This secrecy is only partly necessary. It should be possible to at least get declassified summaries of the issues and problems involving these programs that have actually been examined in depth without compromising any legitimately classified sources or methods. That we are not is a red flag.

FISA Court review: How effective is the FISA Court in preventing Fourth Amendment violations of Americans rights under the Section 702 program? Not very, as the activist group Demand Progress noted in a report issued in 2017. As the Demand Progress press release stated, "The report identifies overreaches by the Intelligence Community. These include Constitutional problems, unauthorized information collection, failure to comply with FISA Court orders, failure to provide notice to defendants, and mismanagement of acquired data."

Neither Senator Burr or any other Section 702 supporter referenced these violations during debate over S. 139.

DNI review: The DNI is a program proponent, not an objective overseer. DNI Coats' presence just off the Senate floor was designed to ensure ultimate passage of the underlying bill. Burr's assertion here does not pass the "laugh test."

IG review (including DoJ): The last Section 702 Department of Justice Inspector General compliance report was issued in 2012, and was only declassified in part due to litigation by the New York Times. Thus, the public has no idea whether additional compliance reports have actually been produced, much less what they've found. Moreover, recent reporting by investigative journalist Jenna McLaughlin at Foreign Policy raises disturbing questions about the very integrity of Inspector General offices across the Intelligence Community, including the Intelligence Community Inspector General office itself. Not only is Burr not on the letter requesting a Government Accountability Office (GAO) review of the allegations, he made no mention of the controversy during his remarks on Section 702 reauthorization.

The fact that Burr does not appear to be interested in ensuring that IC whistleblowers can come forward to safely report problems with Section 702 or other surveillance programs makes a mockery of his claims that any IG examination of Section 702 can be trusted.

I began this piece by noting that my prediction last October that Section 702 would be reauthorized with minimal or cosmetic changes had proved optimistic. The Brennan Center's description of the actual effects of S. 139 tell the tale:


When Congress reauthorizes Section 702 of FISA—a law intended to authorize surveillance of foreigners only—it should take the opportunity to shore up privacy protections for Americans. S. 139 does the opposite. It codifies the government’s practice of “backdoor searches” without any meaningful restriction. It also authorizes an expanded form of “abouts” collection. It thus leaves Americans’ privacy more vulnerable, not less. 

Burr and other Section 702 reauthorization proponents have also asserted that the program does not deliberately target Americans--that any communications of Americans swept up in Section 702 dragnet are "incidentally" collected. But there's nothing "incidental" about deliberately targeting people--including Americans at home or abroad--who use the Tor anonymity tool for online browsing--something NSA has been doing for at least a decade. And as the Section 702 "minimization" procedures approved by then-Attorney General Eric Holder in 2009 make clear, NSA can keep and analyze any domestic U.S. communications acquired that employ any form of encryption:

Extract of FISA Section 702 NSA minimization procedures

With the growing number of Americans utilizing apps like Signal, Wickr, and similar encrypted messaging apps, it means the total number of Americans NSA can target for simply using encryption to protect their privacy will grow.

And if NSA can't figure out for sure if you are, in fact, a U.S. citizen, they will target you until they can prove otherwise:

FISA Section 702 NSA minimization procedures extract 2

The bill the Senate just passed and that President Trump will sign makes all of these problems worse. It's another tragic example of the triumph of fear over liberty in the Digital Age. 

 

Related Tags
Constitutional Law, Defense and Foreign Policy, Government and Politics, Technology and Privacy, Robert A. Levy Center for Constitutional Studies

Stay Connected to Cato

Sign up for the newsletter to receive periodic updates on Cato research, events, and publications.

View All Newsletters

1000 Massachusetts Ave, NW,
Washington, DC 20001-5403
(202) 842-0200
Contact Us
Privacy

Footer 1

  • About
    • Annual Reports
    • Leadership
    • Jobs
    • Student Programs
    • Media Information
    • Store
    • Contact

Footer 2

  • Experts
    • Policy Scholars
    • Adjunct Scholars
    • Fellows
  • Events
    • Upcoming
    • Past
    • Event FAQs
    • Sphere Summit

Footer 3

  • Publications
    • Books
    • Cato Journal
    • Regulation
    • Cato Policy Report
    • Cato Supreme Court Review
    • Cato’s Letter
    • Human Freedom Index
    • Economic Freedom of the World
    • Cato Handbook for Policymakers

Footer 4

  • Blog
  • Donate
    • Sponsorship Benefits
    • Ways to Give
    • Planned Giving
Also from Cato Institute:
Libertarianism.org
|
Humanprogress.org
|
Downsizinggovernment.org