FISA

  • January 29, 2018
    Guest Post

    by Jim Dempsey, Executive Director, Berkeley Center for Law and Technology

    The recent reauthorization of Section 702 of the Foreign Intelligence Surveillance Act was never in doubt. However, civil liberties advocates were disappointed when Congress failed to adopt an amendment requiring the government to obtain warrants before seeking information about US citizens in the repository of data collected under statue. More broadly, the debate failed to grapple with the risks of electronic surveillance in the era of globalization, expanding storage capacities, and big data analytics. Nevertheless, looking forward, the reauthorization set up the potential for fresh judicial consideration of a key constitutional question and yielded some opportunities for enhanced oversight of the 702 program.

    It was widely accepted that activities conducted under Section 702 were effective in producing useful intelligence on foreign terrorism and other national security concerns. Chances for reauthorization were further boosted by the fact that the broad outlines of 702 implementation were, once you got past the incredible complexity of the statute, well within a reasonable interpretation of Congress’ words. The trust generated by express Congressional authorization was augmented, after the Snowden leaks, by substantial and ongoing public disclosures by the Executive Branch about the law’s implementation – more transparency than any government in the world has ever provided about a similar national security program.

  • July 12, 2013
    Guest Post

    by Joseph Jerome, Legal and Policy Fellow, Future of Privacy Forum

    Harvard Law Professor Lawrence Lessig, in a piece for The Daily Best, wrote "Trust us' does not compute," in discussion about government national security surveillance programs. After a contentious, technical discussion at the ACS national convention of both the NSA's PRISM program and the cellular metadata orders, a panel of privacy law scholars were forced to concede that "trust us" is today's status quo when it comes to programmatic government surveillance.

    It wasn't supposed to be this way. When the Foreign Intelligence Surveillance Act was first passed in 1978, the law was designed to "put the rule of law back into things," explained Professor Peter Swire, co-chair of the Tracking Protection Working Group at the W3C and the first Chief Counselor for Privacy at OMB. The emergence of the Internet, however, changed everything. Intelligence agencies were faced with a legal framework that could not account for situations where "games like World of Warcraft [could be] a global terrorist communication network," he said.

    But even as communications technology has been made to serve bad actors, it has also ushered in a Golden Age of surveillance. Modern technology today can easily determine an individual's geolocation, learn about an individual's closest associates, and connect it all together via vast databases. Within the federal government, without strong champions for civil liberties, the availability of these technologies encouraged government bureaucracy to take advantage of them to the full extent possible. Absent outside pressure from either the Congress or the public, "stasis sets in," Swire said.

    Yet while service providers collect vast amounts of data about individuals, a combination of business practicalities and Fair Information Practice Principles which stress retention limits and data minimization mean that businesses simply do not keep all of their data for very long. As a result, the government has used Section 215 of the PATRIOT Act to collect and store as much information as possible in the "digital equivalent of the warehouse at the end of Indiana Jones," said Professor Nathan Sales, who largely defended the government's efforts at intelligence gathering.

  • June 7, 2013

    by Jeremy Leaming

    Are we over reacting when tossing around Orwellian to describe the federal government’s massive surveillance programs or denouncing President Obama as losing all credibility on this issue, as The New York Times Editorial Board has done?

    We noted one of the massive spying programs yesterday regarding a FISA Court order granting the National Security Agency the power to collect telephone information from Verizon. The Guardian released the FISA Court order in its coverage. Later The Guardian and The Washington Post reported on a program called PRISM where the NSA and FBI are “tapping directly into central servers of nine leading Internet companies [like Google, Facebook and Apple], extracting audio and video chats, photographs, e-mails, documents and connection logs ….” The order to collect telephone data has apparently been made much easier to obtain because of the administration’s sweeping interpretation of a provision in the Patriot Act.

    President Obama today dismissed criticism of the surveillance programs as hype. At a press conference this morning intended to focus on implementation of the Affordable Care Act he was confronted with questions about the two programs.

    Obama first acknowledged he has a duty to protect the constitutional right to privacy and civil liberties, but quickly shifted into defending the massive surveillance programs.

    “The programs discussed over the last couple of days in the press are secret in the sense that they are classified but they are not secret in the sense that when it comes to phone calls every member of Congress has been briefed on this program,” Obama said. “With respect to all these programs the relevant intelligence committees are fully briefed on these programs. These are programs that have been authorized by broad bipartisan majorities repeatedly since 2006. So I think it’s important to understand that your duly elected representatives have been consistently informed about exactly what we’re doing.”

    He claimed that the “intelligence community” is not looking at content of telephone calls, but instead sifting “so-called metadata” for leads of people plotting to engage in terrorism. He then knocked coverage of the two surveillance programs as “hype.” He added that the program of collecting telephone data is overseen by Congress and the FISA Court, which was created by the Foreign Intelligence Surveillance Act of 1978 (FISA).

    With respect to the Internet surveillance program, he said PRISM does not apply to U.S. citizens and that Congress is fully aware of the program and that the FISA Court “has to authorize it.” They are both programs, the president said, that have been approved by Congress and the FISA Court is overseeing them.

    The Dish’s Andrew Sullivan writes, “I don’t find such data-mining for national security purposes to be that horrifying. If that’s the price we have to pay for deterring Jihadist attacks, then we should recognize there’s a trade-off. The problem is that we, the public, cannot judge the gravity of those threats and so cannot even weigh the necessity of giving up our privacy.”  

    Geoffrey R. Stone, a constitutional expert and distinguished law professor at the University of Chicago, in a piece for The Huffington Post says that “based on the facts that have been made public,” the government actions “are neither unconstitutional nor otherwise unlawful under existing law.” Stone, however, adds that he would “personally like to see the interpretation of the Constitution and the state of federal legislation changed in particular ways that might alter this conclusion ….” 

    Both Sullivan and Stone are touching upon the trade-offs that Obama also mentioned during his press conference today. In some instances national security will trump the interests of protecting privacy.

    Others, like The New York Times Editorial Board believe the Obama administration has recklessly expanded the surveillance programs started under his predecessor and given more power to the nation’s unwieldy intelligence apparatus. “The administration has now lost all credibility on this issue. Mr. Obama is proving the truism that the executive branch will use any power it is given and very likely abuse it. That is one reason we have long argued that the Patriot Act, enacted in the heat of fear after the Sept. 11, 2001, attacks by members of Congress who mostly had not even read it, was reckless in its assignment of unnecessary and overbroad surveillance powers.”

  • June 6, 2013

    by Jeremy Leaming

    The Obama administration, obsessed with leaks of secret government actions, is likely seething over reporting by The Guardian’s Glenn Greenwald, Ewen MacAskill and Spencer Ackerman on the secretive order granting the federal government sweeping power to collect “telephone records of millions of US customers of Verizon,” regardless of any suspected connection to terrorist groups or activities.

    The report reveals an order from the secretive Foreign Intelligence Surveillance Court -- created by the Foreign Intellegince Surveillance Act of 1978 (FISA) -- granting power to the even more secretive National Security Agency to collect phone data over a three-month period. As The Guardian reporters and others note we have no idea if the FISA Court order is one in a series of orders granting the NSA ability to collect the information.

    Salon’s Alex Pareene notes that the nation’s intelligence agencies have continued to amass power for decades. Both parties and presidents have done nothing to rein in the NSA. “While the fact the NSA has the power to do this has been public for some time, we’ve never seen, until the Guardian obtained one, an actual Foreign Intelligence Surveillance Court warrant. They are very top secret. Someone will probably be prosecuted for leaking this one. That, in fact, is one of the primary issues civil libertarians, like the ACLU and the Electronic Frontier Foundation have been raising: If the way the administration interprets the law is secret, the law itself is effectively secret. Now we know more. But the recent history of the U.S. and domestic surveillance suggests knowing more won’t lead to doing anything about it.”

    The ACLU and other civil liberty groups and a few Senate Democrats have tried to raise concern over the unwieldy and largely unaccountable intelligence apparatus. In a June 5 press statement, the ACLU’s Deputy Legal Director Jameel Jaffer said, “From a civil liberties perspective, the program could hardly be any more alarming. It’s a program in which some untold number of innocent people have been put under the constant surveillance of government agents. It is beyond Orwellian, and it provides further evidence of the extent to which basic democratic rights are being surrendered in secret to the demands of the unaccountable intelligence agencies.”

    In a piece for Cato at Liberty, Jim Harper looks at the indifference Americans have toward the FISA Court and the power of the nation’s intelligence apparatus. He notes that last summer and then in late December Congress reauthorized, expanded FISA powers for another five years, “continuing the government’s authority to collect data like this under secret court orders.” One of the staunchest supporters of expanding FISA powers was Sen. Dianne Feinstein (D-Calif.).

  • September 11, 2012

    by Jeremy Leaming and Dipal Shah

    At a New York Law School symposium examining the impact the 9/11 terrorist attacks have had on civil liberties, John Yoo, former George W. Bush administration attorney who wrote memoranda supporting torture of military prisoners, declared that in the years since the devastating events “civil liberties have grown quite a bit.” Yoo, now a law professor at UC Berkeley Law School, added that civil liberties in the country had been bolstered “because government has been primarily kept out of the way.”

    It was a statement that likely left some of the panelists wondering whether Yoo was being intentionally provocative. Indeed as noted time and again by the Center for Constitutional Rights, Human Rights First, Bill of Rights Defense Committee and law professors like Georgetown’s David Cole, a much stronger argument can be made that too often efforts to advance national security have trumped protections of civil liberties and the humane and lawful treatment of military prisoners.

    The New York Law School Review’s “visual scholarship project” created a short -- less than 14 minutes -- video highlighting some of that symposium and including additional discussions with legal scholars and advocates such as ACS President Caroline Fredrickson, Fordham Law School Professor Martin Flaherty, and Ohio State University law school Professor Peter M. Shane. Watch the NYLS Law Review video here or see below. 

    Shane, for instance said, he has knocked the Bush administration “for always saying that if anyone kind of pushed back against harsh interrogation techniques or rendition they would always say ‘well you want just want the law enforcement paradigm.’ And there’s this kind of attempt always to sort of cast people who are asking questions about particular policies as if they were somehow soft on terrorism, at best, and unpatriotic at worst.”

    Although President Obama, very early in his term, signed an order banning torture of military prisoners, many civil liberties groups blast his administration for following too much of his predecessor’s actions in this area. For instance, the Obama administration has invoked the so-called state secrets privilege to shut down actions brought by prisoners challenging their imprisonment, and has failed to close Guantánamo Bay, where prisoners are still indefinitely held. (Recently another prisoner died there; he was the ninth to do so. The Center for Constitutional Rights in a Sept. 10 press statement called on the administration to “conduct a full and impartial investigation, and treat the body and the family with all proper respect, none of which, regrettably, has consistently occurred in the past.”) Attorney General Eric Holder has also been criticized for failing to prosecute any of the CIA or military officials allegedly involved in torture of military prisoners.

    Shane, in his interview with the NYLS Law Review, said Americans, and possibly people in general, “are often too quick to accept that there is a tradeoff between these two things [national security and civil liberties]; that somehow to be more secure is to be less free.”

    Fredrickson, again for NYLS Law Review, said, “Many would argue that civil liberties are actually a core part of the national security that we give our nation, and that only when we have protections for what we believe are our vital rights as Americans are we actually able to keep ourselves safe.”