The revelation that then-President Barack Obama illegally spied on millions of Americans has Congress asking questions, demanding answers, and considering big changes to the Foreign Intelligence Surveillance Act.
Section 702 of the law, which is set to expire at the end of the year, allows federal agents to spy on foreign persons and organizations who are not United States citizens and not located within the U.S. But agents must fully disclose their methods with the FISA court when applying for a warrant.
The broad methods by which the surveillance is conducted means the collection of private information and conversations are of American citizens not suspected of anything.
What can Congress to do stop illegal domestic spying, and could Obama administration officials be held legally accountable?
Idaho Republican Congressman Raul Labrador, a staunch conservative, is leading the charge in the U.S. House to get answers as to why and how the National Security Agency and other federal bodies are spying on American citizens.
“The importance of this issue has grown in light of recent allegations that the NSA may have abused its power to carry out a political agenda,” Labrador told The Washington Times. “Congress should not reauthorize Section 702 without real, meaningful safeguards for the Americans people.”
The extent of the problem came to light in April, when Federal Judge Rosemary M. Collyer ruled the federal government had tried to cover up widespread breaches of the Fourth Amendment, which prohibit surveillance of Americans without a warrant.
“On October 24, 2016, the government orally apprised the Court of significant non-compliance with the NSA’s minimization procedures involving queries of data acquired under Section 702 using U.S. person identifiers,” Judge Collyer ruled. “The full scope of noncompliant querying practices had not been previously disclosed to the Court.”
A privacy advocate tells the Times such illegal breaches are widespread, and courts are beginning to crack down.
“It is hard to find one of those opinions that doesn’t contain 20 to 30 pages describing all the ways in which the agencies fail to comply with court orders,” Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program, tells the Times. “It shows that this is continuing — that the pervasive violations of FISA Court orders has happened from the beginning.”
That could mean big changes for Section 702, when Congress must take up the issue later this year.
“It does feel like something has changed since 2012 that’s going to make this harder,” Matt Olsen, former director of the National Counterterrorism Center, told the paper. “I don’t think there really is much debate over the fundamentals of 702 the value of it, the sort of core principles about how it works — I think there is general support for that.”
Two programs that used to collect data under 702 could see the ax.
Upstream and PRISM, which collect Internet data from the public, could be dropped.
Upstream collects data from Internet cables while PRISM collects processed data from tech companies, The Hill reported.
But rather than tap into the data being produced by the target of a warrant, like a telephone wiretap, the programs collect all data from all public users, from which the target’s data is acquired.
There are no assurances, however, agents are not accessing, reading and storing data from law-abiding citizens and persons not targeted with a warrant.
Among the prime examples of the abuse of unwarranted surveillance is former National Security Adviser Michael Flynn.
Despite not being the target of a FISA warrant, Flynn’s private phone calls with Russia’s Ambassador to the United States were captured and stored by federal agents.
The information was leaked to the media in a manner that politically damaged President Donald Trump, despite the fact no illegal activity was captured in the calls.
At worst, Flynn was guilty of lobbying for a foreign government without filing proper disclosures, which is not a matter for a FISA court.
In response, the National Security Agency claims to have stopped collecting data from persons not named in a warrant, but experts are skeptical.
“The content of our emails and texts contains incredibly personal information about our work, our families, and our most intimate thoughts. The NSA should never have been vacuuming up all of these communications, many of which involved Americans, without a warrant. While we welcome the voluntary stopping of this practice, it’s clear that Section 702 must be reformed so that the government cannot collect this information in the future,” Michelle Richardson, Deputy Director of the Freedom, Security, and Technology Project the Center for Democracy and Technology, told The Hill.