Analysis The reauthorization of a controversial US government spying program has made further progress with the Senate's intelligence committee putting forward its recommendations to the whole Senate.
This follows a similar move by its counterpart in the House of Representatives last week.
The report [PDF] from the Senate committee reveals however that, as in the House, a minority of lawmakers are unhappy about the powers that the reauthorization would formally grant the FBI to search for information on US citizens even though the program in question is specifically written to target only foreign individuals.
There are two key aspects of the report on section 702 of the Foreign Intelligence Surveillance Act (FISA) that have privacy advocates up in arms: the use of Orwellian language to paint a picture diametrically at odds with reality; and a series of proposed amendments that were voted down but which expose obvious holes in the draft legislation.
Most stark in its misinformation is the claim within the report that a new section on "minimization and disclosure provisions" provides "restrictions" on the FBI's use of section 702 information.
In fact, the "restrictions" amount to permission for the Feds to use a database that is only supposed to contain information on foreign intelligence targets. For years, the FBI and NSA sought to hide the fact that the FBI was using information on US citizens captured through the program to investigate domestic crimes in direct violation of the explicit wording of the law.
As a result the new "restrictions" – which include just about every crime that the FBI routinely investigates including death, kidnapping, serious bodily injury, offenses against minors, harm to critical infrastructure, cybersecurity crimes, transnational crimes, and human trafficking – are in fact the means by which the intelligence services will turn a foreign spying program into a domestic one.
Despite the Director of National Intelligence (DNI) testifying that the FBI only uses the section 702 database for "foreign intelligence queries," the reality was laid bare when an amendment was put forward that would have "prohibited acquisition under section 702 of communications known to be entirely domestic," and was voted down 11-4 by the Senate intel committee.
In fact, all of the key aspects of the spying program that have come to light following the Edward Snowden revelations and years of careful questioning were tackled in proposed amendments – many of them put forward by Senator Ron Wyden (D-OR) – and all of which were voted down. Wyden is pushing his own bill that will introduce "agreed" reforms.
Incredibly, the part of the program that was deemed so controversial that the NSA voluntarily agreed to end it – largely because it is almost certainly unconstitutional – is given a clear roadmap for reintroduction.
So-called "about" collection where the NSA scoops up the communications of anyone referred to by a foreign intelligence target, including US citizens, is not prohibited in the proposed legislation, despite every senator publicly stating it should be.
And despite a proposed amendment that would have required the government to obtain a warrant based on probable cause prior to accessing the content of an American's communications under Section 702. It was voted down, again, 11-4.
Former chair of the intelligence committee, Senator Dianne Feinstein noted that the courts have specifically questioned the constitutionality of this part of the program.
Instead, section three of the legislation gives the DNI and the Attorney General (AG) the ability restart "about" collection if they can get an order from the Foreign Intelligence Surveillance Court (FISC) approving it. The new "safeguard" inserted following outrage over the practice is that the DNI/AG must inform the congressional intelligence and judiciary committees that they have restarted collection.
Ain't gonna happen
It is then contingent on Congress to pass new legislation prohibiting that collection: a situation that is extremely unlikely given that this reauthorization bill is where the issue is being tackled. Why would Congress pass a law effectively authorizing the restarting of about collection and then pass another one later condemning it?
The truth is that Congress is knowingly creating sham safeguards in order to give the appearance of oversight.
Another sham oversight is the ability for the FISC to hear from a privacy advocate during future hearings on issues that impact US citizens' rights. That important element in included in section four – and then completely undermined in the same sentence when the FISC is explicitly told it can decide whether such an appointment is necessary.
The issue of "reverse targeting" – which has been repeatedly and explicitly banned by Congress – was also supposed to be addressed in the reauthorization of Section 702 but has not been, and an amendment to address it was also voted down.
In this situation, the intelligence services hover up and store a vast database of communications, including those of US citizens, and then search for evidence on a specific person at a later date by searching the database.
Senator Wyden tried to enforce no reverse targeting with the simple change of the word "the" to the word "a" in a critical clause ("If a purpose of such acquisition is to target a particular known person…") It was voted down by, you guessed it, 11 votes to 4.
But perhaps the most disturbing aspect of the whole process is not Senators attempting to hide an expansion of a controversial spying program by pretending that are adding extra safeguards.
It's not even the fact that the lawmakers are knowingly tying the hands of the Privacy and Civil Liberties Oversight Board (PCLOB) while pretending that it is able to exercise oversight.
No, the worst part it is that the spying program may actually be even more expansive than we are currently aware.
How bad can the new spying legislation be? Exhibit 1: it's called the USA Liberty ActREAD MORE
Senator Wyden has repeatedly used his position on the intelligence committee and his access to classified reports to leave breadcrumbs as to what the intelligence services are really up to.
In his lengthy dissent in the report [PDF], Wyden notes that the bill "leaves in place current statutory authority to compel companies to provide assistance, potentially opening the door to government mandated de-encryption without FISA Court oversight."
That is a pretty strong indicator that the NSA and FBI believe they have the right to force companies like Apple to include a backdoor in their products. And the security services may simply be waiting for this bill reauthorizing section 702 to pass before turning up at Apple headquarters and insisting that the iGiant make changes to the next version of iOS that enable US government snoops to access encrypted comms.
But the most worrying part of that already worrying situation is the suggestion that the intelligence services don't even need to go through the only backstop to mass surveillance – the FISA court – to claim that authority. So there would be no trail whatsoever for what would effectively be surveillance of everyone's and anyone's mobile phone.
Wyden's dissent concludes: "By omitting key information about the scope of authorities granted the government, the Committee is itself contributing to the continuing corrosive problem of secret law." ®