Proving that nothing is what it seems when it comes to mass surveillance, the hard deadline of December 31 for the controversial section 702 spying program has been moved overnight to April 26.
On the eve of a Congressional hearing in which director of the FBI Christopher Wray was pointedly asked about the agency's use of information "incidentally" gathered on US citizens, a spokesman for the Office of the Director of National Intelligence suddenly revealed that the security services believe they can continue to operate the program for four months beyond the law's expiration at the end of the year.
"We fully expect Congress to reauthorize this critical statute by the end of the year," Brian Hale told the New York Times before pointing the newspaper to a little noticed provision of the law that does not appear in its main text which says that orders issued under Section 702 "shall continue in effect until the date of the expiration."
That means, according to Hale, that the NSA can continue running its spy program until its one-year certification from the Foreign Intelligence Surveillance Court (FISC) runs out. Since it was last authorized on April 26, 2017 that means, Hale claims, that it is valid until April 26, 2018.
The law that creates the program will expire on the last day of 2017 unless it is explicitly reauthorized by Congress. But lawmakers are currently caught up in negotiations over a tax overhaul and a larger issue over government funding.
A last-minute stop-gap solution agreed to by Congress extended the government's ability to function to December 22 but if agreement isn't reached by then, it is very possible that all government work will stop – and as a result the warrantless US Foreign Intelligence Surveillance Act (FISA) will not be reauthorized in time.
The security services – particularly the NSA and FBI – have been pushing lawmakers very hard to get FISA re-enacted but a determined group of Congressmen and women have been insisting on reform as part of that reauthorization effort. Congress has, of course, failed to reach consensus with the result that there are now four pieces of competing legislation, all of which makes approval less certain.
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The FBI was clearly hoping that director Wray's appearance in front of the House Judiciary Committee on Thursday would be an opportunity to tie the matter up and maintain the spying program's status quo. But as it became clear that some members of the committee were intending to quiz Wray about the program, the security services let it be known that the deadline they have insisted on for months as a way of forcing through legislation was suddenly more flexible.
The reauthorization of Section 702 has been a game of cat-and-mouse for over a year. Several lawmakers, most notably Senator Ron Wyden (D-OR), have been pressing the NSA and FBI on details of the program. A key fight has been over a request that the security services reveal how many US citizens have their information contained in the vast Section 702 database.
That is a critical detail because the FISA law is explicitly focused on foreign intelligence agents. In theory, the security services have no right to gather information on US citizens without a warrant. But through a series of novel and highly questionable legal interpretations, developed by the security services themselves, the FBI is allowed to search the Section 702 database using US citizens identifiers – such as their name, address, email address, phone number etc – without a warrant.
That would in itself be a useless ability if there wasn't a huge amount of detail on US citizens within the database. Which there is, but the NSA/FBI maintain the pretence that any information gathered on US citizens has been collected "incidentally" and is not really a part of the program.
They then claim that searching the database – although they carefully use the term "query" – is not covered under the Fourth Amendment because they are not gathering new information, only information that has already been gathered.
This legalistic house of cards is likely to topple over however if the true number of US citizens contained within the database is revealed: which is why Wyden and others have been asking for it for more than a year, and the security services have come up with excuse after excuse for not providing it.
It is not going to be a small number either. Documents released by Edward Snowden in 2013 showed that of all the individuals whose information was gathered through NSA programs targeted at foreigners, an extraordinary 90 per cent of them were US citizens. Nearly half of the surveillance files that were released concerned US citizens.
The security services' delay tactics appeared to be working too: on November 8, the House Judiciary Committee voted to pass a reauthorization bill out of committee, despite the vocal complaints and concerns of a number of lawmakers; and the Senate equivalent did the same just a week later.
Most notably, both of these bills wrote into the law the dubious legal interpretations that had been used to expand a foreign spying program into a domestic one.
The security services used the pressure of the deadline to push back against lawmakers – like Representative Zoe Lofgren of California – who pointed out that the proposed law almost certainly broke the Constitution.
Lofgren pointed out that the last time the FISA law was reviewed by Congress – ten years earlier – the same tactic of time pressure had been used. Back in 2008, she recalled, Congress was told it "had to agree to a bill that fell short of what the constitution required because of some kind of deal" – a deal that she noted, never happened.
"It's time to stop that and it's time to put the constitution first," she stated. "I don’t think this bill accomplishes what the constitution requires."
Clearly the NSA and FBI were starting to worry that the pressure to get any kind of FISA reauthorization done before the end of the year was going to force lawmakers into a compromise where they included some of the reforms that others have been strenuously arguing for. And so, this week, they simply added four months to the deadline.
Although the NSA and FBI will be hoping that they gives them time to shepherd through a reauthorization law that not only maintains the status quo but also provides legal backing to their interpretations of Section 702, it also represents an opportunity for lawmakers that want to see reforms to make their case.
Senator Wyden has welcomed the chance to have "several months of real debate" over a program that claims to only target foreigners but has increasingly become a warrantless domestic spying program that, were it ever to make it to the Supreme Court, would also certainly be ruled illegal and unconstitutional. ®