Today, Senator Ron Wyden agreed to forego his procedural hold that would prevent the Senate from voting on extending the FISA Amendments Act, due to expire at the end of this year. In exchange, Wyden will get a floor vote on two important amendments to the proposal. These amendments would force the Administration to tell us how many Americans have had their communications monitored because of the FAA and make sure that warrantless national security surveillance under FAA is not used for "back door searches" that improperly evade the warrant requirement that applies in law enforcement investigations that intercept calls and messages. You should call your Senator and ask that they vote yes on these amendments, or in the alternative, agree to renew the law for only one year so that the privacy issues can be debated more fully.
For background on the FAA, go here.
The FAA allows far more surveillance than traditional FISA, with far less oversight. The law authorizes monitoring of American's one end foreign communications with or about a foreign entity, but without allowing judicial review of the reasons for the surveillance, or requiring the government to specify the people to be monitored or the facilities at which surveillance will be directed. In sum, the FAA says it OK to collect any one end foreign communications with anyone in Syria from any facility in the US if the purpose is to learn more about Syria. Or France.
How Many of Us Have Been Monitored?
We simply do not know how many Americans' communications have been collected as a result of the FAA. When Senators, including Senator Wyden, asked DNI James Clapper and NSA head Gen. Keith Alexander how many Americans' communications have been affected by the FAA, they gave them the runaround, and refused to provide even a general answer (100? 100,000?). Clapper's only substantive public answer, contained in this August 24, 2012 letter, is not reassuring. As I've demonstrated before, though the FAA requires a non-US person to be the target, it specifically authorizes US persons' non-domestic communications for collection if you are talking with or about that target or its agents.
As for minimization, the procedures are secret, and the public, including most Senators and their staffers, do not know much about them. What we do know is that they traditionally "permit exceptionally thorough acquisition and collection" through a "broad array of contemporaneous electronic surveillance techniques" including surveillance by telephone, microphone, cell phone, email, and other computer usage. Large amounts of information are collected by automatic recording to be minimized after the fact. Only if information "could not be" foreign intelligence information is it minimized, and evidence of criminal activity which is NOT foreign intelligence activity, nevertheless may be retained and disseminated under 50 USC 1801(h)(3) and 1821 (4)(c). Finally, minimization doesn't mean the information is deleted. It may mean that the information is simply not logged, which is a ridiculous "safeguard" in the age of data mining and huge Utah digital storage centers.
We have no idea whether these FAA "safeguards" are working. Before we reauthorize the law, we ought to find out.
No Back Door Searches
Since FAA surveillance generates a pile of intercepted communications including an unknown, potentially huge, number of American communications, what prevents the government, including law enforcement officers who may direct and control foreign intelligence analysis of the data, from looking for information about specific Americans? Or searching more generally for "marijuana" and subsequently initiating investigations of all the Americans talking about their use of that controlled substance? Wyden's second amendment to the FAA would help ensure that these circumventions of law could not happen.
Wyden's amendments are critical to protecting Americans from overbroad warrantless surveillance purportedly authorized for foreign intelligence purposes. The Senate should support them. Let's see if it will.
Photo Credit: Sergio Morales