PATRIOT Act Debate Must Include Reform of Last Year’s FISA Amendments Act

The surveillance powers authorized by the USA PATRIOT Act endanger civil liberties, but their impact pales in comparison to that of the FISA Amendments Act (FAA) passed by Congress last summer. That law eviscerated Americans’ protections against domestic spying by intelligence agencies and granted immunity to telecommunications companies that illegally assisted in the National Security Agency’s warrantless wiretapping. The PATRIOT renewal debate offers the first, best, and perhaps last meaningful opportunity to reform that law, and the Electronic Frontier Foundation (EFF) urges members of the Senate Judiciary Committee to support any amendments to the FAA offered by Senator Feingold when it considers PATRIOT renewal tomorrow morning.

Last week, Greg Nojeim of the Center for Democracy & Technology (CDT) ably introduced ACSblog readers to the current state of the USA PATRIOT debate: how three provisions related to PATRIOT are set to expire at the end of the year; how Senators Leahy and Feingold have introduced bills that would renew most or all of the expiring provisions but that also contain critical new privacy protections; how the Senate Judiciary Committee is set to consider those bills tomorrow; and how, in CDT’s opinion, “reform of NSL authority should be at the top of the congressional agenda for the Patriot Act.” EFF wholeheartedly agrees with CDT’s conclusion that the FBI's authority to issue National Security Letters is the PATRIOT power that poses the most clear and present danger to civil liberties. However, the PATRIOT debate is also a critical opportunity—perhaps the only opportunity—to significantly reform the much more worrisome surveillance powers granted by the FAA.

From a civil liberties perspective, focusing on reforming the PATRIOT Act without also considering FAA reform is like rearranging deck chairs on the Titanic. Although objectionable in the extreme, PATRIOT did not fundamentally change the structure of federal surveillance law; rather, it was a collection of nips and tucks to current law that favored Executive authority over personal privacy, which when taken together constituted a significant new threat to civil liberties. On the other hand, the FAA was a radical facelift to the law, which broadly expanded the government’s warrantless wiretapping authority and reduced Americans’ protections against interception of the content of their phone conversations and emails. Admittedly, NSLs authorized by PATRIOT have been used to obtain the sensitive phone, internet and credit records of hundreds of thousands of Americans. The FAA, however, is being used to intercept and store millions upon millions of private telephone calls and internet communications, including purely domestic communications.

This assertion is borne out by the investigative reporting of the New York Times, a leader when it comes to covering surveillance issues. The Gray Lady first reported back in April that in its attempts to implement the FAA, the National Security Agency (NSA) had engaged in “significant and systemic” “overcollection”—i.e., illegal interception—of large volumes of domestic email traffic. The Times’ follow-up reporting indicated that the “overcollected” emails likely numbered in the millions, and that those millions of illegally intercepted emails were being kept by the NSA in a database code-named “Pinwale”.

The Times’ reporting provided further proof of what EFF has been alleging all along in its two lawsuits over the NSA surveillance, Hepting v. AT&T and Jewel v. NSA: that the NSA program is not narrowly targeted at the international communications of people linked to terrorism as President Bush always claimed, but instead is a program of dragnet surveillance whereby the NSA, plugged into key telecommunications switches across the country, vacuums up millions of private communications including domestic calls and emails.

In other words, the NSA program isn’t a “retail” surveillance program, where the government picks a target and then wiretaps that target. Rather, according to news reports and whistleblower evidence, it’s a “wholesale” surveillance program where the NSA sucks up millions of communications and then uses data-mining techniques to pick out the communications that intelligence analysts will read or listen to. Crucially, as we’ve alleged and as the Times’ latest reporting has demonstrated, this dragnet program of wholesale surveillance is still happening under the Obama Administration.

EFF and the Times aren’t alone in sounding the alarm over the NSA’s ongoing spying program. Indeed, the concluding sentence of a recent joint report by the Inspectors General of the Justice Department and a range of intelligence agencies on the Bush-era version of the NSA program was a warning: a warning that the “collection activities” pursued under the newly amended FISA law are “unprecedented” and that the retention and use of the collected information “should be carefully monitored.” Apparently, even NSA’s own inspector general is worried about unprecedented scope of the NSA’s surveillance!

Luckily, Senator Feingold and Durbin are also concerned—so concerned that they included a range of privacy-protective FAA amendments in their PATRIOT reform bill, the JUSTICE Act. Perhaps most importantly, section 304 of JUSTICE would prohibit the government from using the FAA to engage in “bulk collection” of Americans’ communications, and would instead require the government to only acquire the communications of individual targets who are linked to terrorism or espionage and are believed to be outside of the U.S. EFF, like the Times’ editorial board, would prefer to see the whole FAA repealed, including the provision granting immunity to telcos like AT&T that are being sued by EFF and others for their illegal collaboration in the NSA program. But the reforms in the JUSTICE Act represent an important step in reining in this powerful new surveillance law.

CDT is certainly right that the “prize” when it comes to PATRIOT reform is NSL reform, and that we shouldn’t get too distracted by debate over the expiring provisions. However, EFF would go further to say that we shouldn’t get too distracted by PATRIOT reform when thinking about surveillance reform, because in the end the FAA is the much greater threat to civil liberties. Therefore, the single most important thing that members of the Senate Judiciary Committee can do tomorrow to protect the civil liberties of all Americans is to look beyond the four corners of PATRIOT and support Mr. Feingold’s FAA reforms. If you agree, please visit EFF’s action center and tell your Senator to support PATRIOT reform and FAA reform by supporting JUSTICE.