Yearly Review in the Fight Against Illegal NSA Surveillance

EFF’s review of the secretive, unconstitutional NSA mass surveillance that is still occurring today.

In April, we saw two disappointing actions by the Foreign Intelligence Surveillance Court. First, the court unsealed a ruling from November 2015 that formally approved the FBI to use information collected through the NSA’s warrantless surveillance programs in general criminal investigations.  While we applaud the court’s move to unseal the ruling in the first place, we’re disappointed that this virtually un-appealable decision condones the use of information collected without a warrant–under a sweeping surveillance program for “foreign intelligence” purposes–in domestic criminal investigations.

The court also made public a ruling granting the FBI’s request to obtain and retain call records, even if those records were not relevant to an investigation.

On the Hill

Congress started off 2016 particularly attuned to concerns about NSA surveillance after The Wall Street Journal reported at the very tail end of 2015 that the NSA was eavesdropping on phone calls between members of Congress, Israeli officials, and interest groups. This is just one example of the troubling surveillance the NSA conducts under overly broad and often mysterious authorities like Section 702 and Executive Order 12333. Both of those can be used to “target” sweeping groups of people and types of communications.

At the time, we pointed out the many other reasons congressional communications could end up in the hands of the NSA–including communicating with officials at the United Nations or discussing trade issues with foreign trading partners–and we urged members of Congress to ask tough questions about how their communications were collected and shared by the NSA.

Section 702 is not set to expire until the end of 2017, but Congress started thinking about reauthorizing as early as January, when the House Judiciary Committee announced a closed-door, members only meeting to discuss the surveillance authority.

The committee briefly debated–but failed to pass–Section 702 reforms when it considered the USA FREEDOM Act in 2015, and we looked forward to the debate around many much-needed changes to the law. But the closed-door meeting shut out participation from everyone except members of the intelligence community, so we joined two-dozen other organizations in calling on the committee to hold open hearings.

A closed meeting “continues the excessive secrecy that has contributed to the surveillance abuses we have seen in recent years and to their adverse effects upon both our civil liberties and economic growth,” we wrote, arguing instead for open hearings to allow input from privacy and civil liberties advocates and promote transparency.

Months later, the Senate Judiciary Committee held an open hearing on Section 702, featuring testimony from civil liberties advocates and highlighting crippling knowledge gaps around the law’s implementation, which make it impossible to conduct effective oversight of the surveillance programs.

One point driven home during the hearing was the fact that no oneincluding members of Congress tasked with overseeing these surveillance programsseems to know how many Americans have their communications swept up by surveillance under Section 702, which is supposed to be aimed at individuals abroad.

“When the public lacks even a rough sense of the scope of the government’s surveillance program, they have no way of knowing if the government is striking the right balance, whether we are safeguarding our national security without trampling on our citizens’ fundamental privacy rights,” committee member and vocal privacy advocate Sen. Al Franken said during the hearing. “But the public can’t know if we succeed in striking that balance if they don’t even have the most basic information about our major surveillance programs.”

The hearing also highlighted concerns about minimization procedures–or steps taken to ensure that irrelevant data about Americans incidentally swept up is deleted–applied to information collected under Section 702. Then-Chairman of the Privacy and Civil Liberties Oversight Board told lawmakers that intelligence officials don’t follow minimization procedures, which call for deletion of information about innocent Americans. “What the Board’s report found is that in fact information is never deleted,” he said. “It sits in the databases for five years, or sometimes longer.”

As Congress continues to debate reauthorizing Section 702 ahead of the 2017 deadline, we hope lawmakers will push for more information about how many innocent Americans are impacted by these sweeping programs and what measures, if any, effectively protect their privacy.