Warrantless Spying Careens Toward Reauthorization

Last week, the House of Representatives voted to reauthorize the FISA Amendments Act—and its controversial Section 702, which establishes general warrants for wiretapping foreigners—and rejected an amendment offered by Rep. Justin Amash that would have at least required the FBI agents to obtain a warrant before sifting through the NSA’s massive database of intercepted communications for Americans’ messages. As I noted in a blog post at the time,  the few supposed “reforms” embedded in the authorization bill are cosmetic at best, and more likely will serve to actually expand the scope of warrantless surveillance. But at least Amash’s amendment got a vote, although without the benefit of much in the way of substantive debate.  

This evening the Senate is poised for a cloture vote that will advance 702 reauthorization toward passage later this week, not only with minimal debate, but without even permitting amendments to be offered.  Even supporters of the law should regard this as an extraordinary dereliction of duty.

As Sharon Bradford Franklin of New America’s Open Technology Institute observes, we’ve learned an enormous amount about how Section 702 is used since it was last reauthorized five years ago—in part because of the now-notorious disclosures by Edward Snowden, but also in part because of the unprecedented quantity of information released since then by the government itself, whether voluntarily or in response to Freedom of Information lawsuits.  

We’ve learned about the intelligence community’s struggles to follow its own rules, and to keep the Foreign Intelligence Surveillance Court (FISC) and other oversight bodies fully and promptly informed about such “compliance incidents.”  We’ve learned about the massive number of foreigners targeted for collection under 702—more than 106,000 last year— though, despite repeated pledges from intelligence officials (ultimately repudiated last year by the new Director of National Intelligence Dan Coats) we haven’t learned how many Americans find their communications caught up in the process.

We’ve learned about “about collection“—wherein NSA routinely intercepted Internet messages (including Americans’ messages) that were neither to nor from a foreign surveillance target, but only made reference to a target.  (When the Supreme Court blocked a challenge to the law from proceeding in the case Clapper v. Amnesty International, on standing grounds, it repeatedly cited the government’s inaccurate representation that only Americans in direct communication with a foreign target were at risk of having their communications intercepted.)  Even the normally deferential FISC eventually balked at this practice, forcing NSA to wind it down.  Yet the reauthorization bill the Senate is preparing to advance actually codifies it explicitly for the first time—requiring only that Congress be informed if it is resumed.  While it is vanishingly unlikely that Congress would actually intervene in the event of such a notice, this is likely to be read by the FISC as a congressional blessing of the practice, making its resumption more likely.  

A Senate more concerned with fulfilling its oversight responsibilities would invite extensive public debate and discussion of these issues and more, as well as proposals to address them. Instead, as we’ve seen so often with other intelligence authorities, the looming expiration of 702—which following a temporary extension is set to lapse on January 19—is invoked to create a false sense of urgency: No time to debate, no time to consider alternatives, just an up or down vote on the reauthorization already approved by the House. The deadline here is, of course, entirely artificial: Congress already passed one temporary extension before its last recess, and could approve another.  Even if it did not, even if the law were to lapse, the warrantless surveillance authorized under 702 could continue uninterrupted until April.

The rush to reauthorization is particularly incongruous at a political moment when you might expect both parties to welcome the opportunity to contemplate additional checks on spying powers.  Democrats routinely worry that the Trump Administration is eager to use its control over law enforcement institutions to go after Donald Trump’s political adversaries—not least because Trump himself demands that they do so on a regular basis.  Republicans, in turn, routinely complain about an insidious “Deep State” embedded within the Justice Department and intelligence community, which they believe may have already illegally leaked information gleaned from surveillance to press as part of an effort to undermine the administration.  You might think concerns of this sort would, at the very least, make legislators more inclined to consider reforms such as requiring court approval to pull up an American’s correspondence from a vast database of foreign intelligence intercepts.  Yet for all the talk of “resistance” on the left and “Deep State” perfidy on the right, the majority in Congress seem determined to extend and expand these spying authorities—both quickly and quietly.