Snooping on 'a massive amount of Americans' communications'
Of the panelists, it fell to Elizabeth Goitein of the Brennan Center for Justice to state the uncomfortable reality that Section 702 is used to "collect a massive amount of Americans' communications," and that through a series of extravagant interpretations of the law, the end result is routine searches of that database for "ordinary criminal proceedings" in the US.
"The FBI is reading Americans' emails and listening to their phone calls without a factual basis to suspect them of wrongdoing, let alone a warrant," she noted.
When pressed on how she knew this, she pointed to explicit conclusions in a report from the Privacy and Civil Liberties Oversight Board (PCLOB) – the government's independent civil rights body that Congress has fatally undermined since it declared that the NSA's Section 215 phone surveillance program was unconstitutional in 2014. (Since that report, four of the five PCLOB board members have either resigned or not had their terms renewed, leaving it unable to legally function.)
We don't know the impact of those searches on criminal cases in the US either because the NSA refuses to provide any data on it – again because it would fatally undermine the claim that Section 702 only related to foreign intelligence.
To the House Judiciary Committee's credit, several members on both sides of the aisle simply refused to accept the fiction being presented to them by the security services.
Ted Lieu (D-CA) noted that the NSA violates the Fourth Amendment when it collects communications on Americans and then violates it again when it scans those communications. Kosseff argued that only the collection of data, and not a subsequent search of it, was a Fourth Amendment question.
Ted Poe (R-TX) said he considered it "illegal and a violation of the Constitution and an abuse of power" for the FBI to search the database without a warrant.
Raúl Labrador (R-ID) was concerned that such a system could be used to distort domestic politics. He referred to the recent resignation of National Security Advisor Michael Flynn for lying about the conversations he'd had with the Russian ambassador, noting that it had had "a chilling effect on me because I thought my political opponents could use my own personal information against me."
Despite the very broad concerns against the program, Congress is still likely to reauthorize Section 702 at the end of the year, largely out of fear that ending the program could result in critical lost intelligence.
That means it is largely a game of chicken between Congress and the security services. A range of proposals has been put forward for how the law could be changed to eliminate the worst abuses.
An annual review of the program – rather than the five-year blanket renewal of the law – could help introduce greater accountability. Another idea is to introduce language that would specifically prohibit the use of Section 702 data for domestic investigations.
A letter from the "Reform Government Surveillance" group made up of large tech companies has put forward a range of broad recommendations, including:
- Narrowing the type of information that can be collected under Section 702
- Requiring judicial oversight for searching 702 data
- Allowing companies to disclose data requests
- Declassifying FISA Court orders
- Adding more transparency around searches conducted on Section 702 data
The hearing also had a wide range of suggestions for how the NSA could calculate the number of Americans whose information is stored in its vast database. It was pointed out, for example, that US telephone numbers tend to start the prefix "+1" and internet communications typically come with an IP address – which can be pretty effectively tied to a particular country.
No doubt the NSA will get right on that. ®