Analysis A battle has broken out in US Congress over a controversial spying program.
Two competing pieces of draft legislation have been pushed into the lawmaking process: one that would officially endorse domestic spying, and a second that would explicitly ban it.
The Senate Intelligence Committee is behind the first, which would reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA) for another eight years – which is due to expire at the end of the year.
However, that reauthorization legislation would give official blessing to a highly questionable interpretation of the law that allows the FBI to search a vast database of what is supposed to only be foreign surveillance targets for information on US citizens thought to have committed a domestic crime.
In direct response to that effort, a bipartisan group of lawmakers has proposed a new piece of legislation – the USA Rights Act – that would explicitly prevent American citizens from being targeted, as well as close the loopholes created by the security services to spy on domestic targets.
Unsurprisingly, Uncle Sam's snoops – the NSA and FBI in particular – are strongly behind the reauthorization effort, particularly since they are increasingly using their interpretation of FISA to fill in for other spying programs that were taken away after they were exposed by Edward Snowden and later ruled unconstitutional.
What does 'foreign' mean, anyway?
Despite the explicit purpose of the Foreign Intelligence Surveillance Act – keyword: foreign – the US intelligence services have used it to build a vast database of information on US citizens by tapping domestic communication lines and then claiming any information picked up on said citizens is "incidentally collected."
While pretending that such intelligence is gathered by mistake, the g-men retain it all and then claim that information does not come with constitutional protections because it has already been gathered. As a result, the FBI is allowed to search it for US citizens using identifiers like name, email address, phone number, etc.
That situation has been painstakingly revealed through years of queries. But the exposure has simply lead to the security services putting pressure on Congress to formally include its questionable interpretations into law.
In section five of the reauthorization act, the entire premise of FISA – that it only be used to spy on foreign targets – is thrown out by allowing the US Attorney General to use information gathered by Uncle Sam's spies to search for evidence of domestic crimes including death, kidnapping, serious bodily injury, child protection, destruction of infrastructure, cybersecurity, and trafficking.
The "exemptions" are so broad that it encompasses pretty much any investigation likely to be undertaken by the FBI.
Even more worrying, the draft law explicitly says that any decision by the Attorney General in this respect will not be subject to judicial review. In effect, the proposal turns a foreign spying law into a domestic one.
The law is also wide open to abuse.
In a number of in-depth reviews of ongoing cases, civil liberties journalist Marcy Wheeler has made convincing arguments that the intelligence agencies are using and tweaking section 702 to carry out ever broader searches of information.
In one, nodes of the Tor anonymizing network appear to have been designated Russian government assets despite very little evidence that they are, thereby bringing the network under the NSA's authorization to extend its surveillance over it.
In another, a Boeing engineer thought to be supplying information to the Chinese government had his communications monitored, which led to a trial for allegedly having child abuse images on his computer.
Despite the head of the FBI explicitly stating that child abuse images are not a part of the Section 702 program, it appears as though the security service tweaked the rules to allow them to be included after the fact – and then immediately charged the engineer with their possession.
The proposed reauthorization act includes such images as being a valid use of section 702, further reinforcing suspicion that the g-men have been using the program to go far beyond what they are entitled to do legally.
That case contains so many unusual happenings and coincidences that one has to wonder whether section 702 is being used to illegally gather information to then pressure US citizens into confessing to other crimes.
Another indicator that section 702 may be being used to carry out spying far beyond what has been disclosed comes in the wording of the proposed USA Rights Act, which has been designed to shut down domestic spying efforts through the foreign intelligence surveillance act.