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Friday, March 17, 2017

White House Opposes FISA Surveillance Reform

The Trump administration opposes any attempts to reform the Foreign Intelligence Surveillance Act (FISA) to address privacy concerns. An anonymous White House official told Reuters in early March that the administration opposes reforming Section 702, saying it is needed to protect national security. “We support the clean reauthorization and the administration believes it’s necessary to protect the security of the nation,” the White House official told Reuters under condition of anonymity. Many privacy advocates and civil liberties advocates have been calling for a reform of Section 702 for years.

Sections of FISA, including Section 702, will expire on December 31st, unless Congress renews them. In 2013, Edward Snowden, a former NSA contractor and whistleblower, exposed the mass surveillance being conducted on American’s, and the entire world’s, electronic communications. Much of the American intelligence community’s global mass surveillance is authorized by Congress under FISA and the USA PATRIOT Act, or authorized by the President under Executive Order 12333. In early 2015, Senator Rand Paul of Kentucky filibustered the reauthorization of the USA PATRIOT Act for 10 and a half hours, and prevented it’s complete reauthorization. In June of 2015, the USA FREEDOM Act was passed by Congress, a bill which sought to reform parts of the USA PATRIOT Act, including removing Section 215 of USA PATRIOT Act, which authorized bulk collection of Americans’ electronic communications. However, the USA FREEDOM Act, did essentially nothing to put an end to bulk collection of all electronic communications, as FISA’s Section 702, and Executive Order 12333, still authorizes bulk collection of electronic communications.

Two particular programs authorized by FISA’s Section 702 include PRISM and Upstream, both of which were exposed by Edward Snowden. PRISM collects data from Microsoft, Yahoo, Google, Facebook, Paltalk, YouTube, AOL, Skype, Apple, and other tech companies. Upstream collection allows the NSA to intercept telephone and internet traffic directly from the internet backbone, and is conducted through four spying programs which include FAIRVIEW, BLARNEY, STORMBREW, and OAKSTAR.

President Trump’s nominee for Director of National Intelligence, former Senator Dan Coats, told a Senate panel in early March that surveillance programs conducted under FISA’s Section 702 are the “crown jewels” of the US intelligence community. For years a bipartisan coalition of lawmakers has demanded to know an estimate of how many Americans are being swept up in the bulk collection of data under Section 702 of FISA. Due to technical and practical issues, it is not possible to separate all Americans communications that are “incidentally” collected from the foreign communications intercepted under surveillance programs authorized by Section 702 of FISA. At the Senate panel, former Senator Dan Coats told the Senators that he would, “do everything I can” to publicly disclose an estimate of how many Americans are effected by surveillance authorized under Section 702, but stopped short of guaranteeing he would. Coats, who voted against USA FREEDOM Act as a Senator in 2015, also seemed prepared to come back to Congress to demand a rollback on the reforms made in USA FREEDOM Act. Though Coats said that if he is confirmed, he “will ensure the [intelligence community] abides by … the changes to the program made as part of the USA FREEDOM Act.”

In early March, the House of Representatives Judiciary Committee held a hearing on Section 702 of FISA. At the hearing, Representative Ted Lieu strongly condemned the backdoor loophole that allows law enforcement agencies to access and search Americans’ communications collected under Section 702, saying, “That information can be passed to the FBI to do a criminal proceeding,” and called it, “a flat out violation of the Fourth Amendment.” Representative Ted Poe also rejected the constitutionality of allowing law enforcement to access communications intercepted without a warrant, saying, “I think that is illegal and a violation of the Constitution and an abuse of power.” Rep. Lieu also raised the issue of surveillance conducted under FISA not being limited to “national security” concerns, but instead “foreign intelligence” concerns, a much broader category. “That could apply to academics, students, human rights activists, lawyers,” Rep. Lieu said. “It’s this massive group.”

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