Foreign Intelligence Surveillance Act Reform
- EPIC Urges FCC to Investigate AT&T’s Practice of Selling Consumer Phone Records: In a letter to Federal Communications Commission Chairman Tom Wheeler, EPIC urged the FCC to determine whether AT&T violated the Communications Act when it sold private consumer call detail information to the Drug Enforcement Administration and Central Intelligence Agency. EPIC's letter follows an earlier letter where EPIC asked the FCC to resolve whether Verizon violated the Communications Act when it released consumer call detail information to the National Security Agency. EPIC's letter also informed the Commission that the National Association of Regulatory Utility Commissioners has issued a draft resolution underscoring the crucial role of the FCC in protecting consumer information. For more information, see EPIC: In re EPIC and EPIC: Foreign Intelligence Surveillance Act. (Nov. 18, 2013)
- Leahy and Sensenbrenner Introduce USA FREEDOM Act: The Democratic Chair of the Senate Judiciary Committee and the Republican author of the Patriot Act have introduced the USA FREEDOM Act, which would reform the Foreign Intelligence Surveillance Act and limit NSA surveillance activities. A bi-partisan coalition, including 17 Senators and 70 Members of Congress, have joined as original co-sponsors. Key provisions of the FREEDOM Act increase transparency of intelligence activities, prevent end-runs around the FISA Court, and improve public reporting. In 2012 EPIC testified before the House Judiciary Committee about the need to reform FISA and to improve oversight of the FISA court. The FREEDOM Act also ends the controversial bulk phone records collection program. EPIC has brought a challenge in the Supreme Court to the phone records program, explaining that it is unlawful under current law. For more information, see EPIC: In re EPIC and EPIC - Foreign Intelligence Surveillance Act. (Oct. 29, 2013)
- Government Responds to EPIC's Supreme Court Challenge of NSA Telephone Record Program: The Solicitor General has filed a response to EPIC's challenge to the NSA's telephone record collection program. In July, EPIC petitioned the Supreme Court to vacate the order of the Foreign Intelligence Surveillance Court that requires Verizon to turn over all telephone records to the NSA. EPIC argued that the Intelligence Court exceeded its legal authority and could not compel a telephone company to disclose so much personal information unrelated to a foreign intelligence investigation. Legal scholars and former Members of Congress filed briefs in support of EPIC's petition, including privacy and national security scholars, constitutional scholars, federal courts scholars, and members of the Church Committee. Congressman James Sensenbrenner, the primary author of the Patriot Act, has said that the telephone records collection program was never authorized by Section 215. For more information, see In re EPIC. (Oct. 14, 2013)
- Senator Leahy Urges FISA Reform at Georgetown Law: Speaking at a conference hosted by the Georgetown University Law Center, the Chairman of the Senate Judiciary Committee called for an end "to the bulk collection of Americans' phone records." Senator Leahy said "the system set up in the 1970s to regulate the surveillance capabilities of our Intelligence Community is no longer working. We must recalibrate." Senator Leahy has introduced bipartisan legislation that would end the telephone record collection program, reduce secret law, and improve the structure of the Foreign Intelligence Surveillance Court. The Senate Judiciary Committee will hold an oversight hearing next week on the Foreign Intelligence Surveillance Act. EPIC has filed a petition with the US Supreme Court, arguing that the bulk collection of telephone toll records is unlawful. For more information, see EPIC - In re EPIC. (Sep. 25, 2013)
- Senators Call for Public Report by IC Inspector General on NSA Surveillance: A bipartisan group of Senators, including the Chairman and Ranking Members of the Senate Judiciary Committee, have called for a full-scale review of the use of surveillance authorities by the intelligence community. The Senators emphasized that the findings and conclusions of this review be made public to "help promote greater oversight, transparency, and public accountability." The requested report would address activities conducted under Section 215 of the USA PATRIOT Act and Section 702 of the FISA, which includes the collection of the telephone call records of hundreds of millions of Americans. Specifically, the report would review the use and implementation of 215 and 702, the applicable minimization procedures, any improper use of the authorities, and examine the effectiveness over the 2010-2013 period. EPIC is currently challenging the order for bulk collection of domestic call records in its Petition for Writ of Mandamus in the U.S. Supreme Court. For more information, see In re EPIC and EPIC: FISA Reform. (Sep. 24, 2013)
- Foreign Intelligence Court Releases Controversial Opinion on Domestic Telephone Records Program: The Foreign Intelligence Surveillance Court (FISC) has released an Opinion, justifying the NSA's telephone record collection program. In the Opinion, Judge Claire Eagan states that "there is no Fourth Amendment impediment to the collection" of all domestic call detail records. Judge Eagan also concluded that all domestic call detail records are "relevant" under Section 215 because "individuals associated with international terrorist organizations use telephonic systems to communicate" and because the government argued that bulk collection is 'necessary to create a historical repository of metadata' in order to identify 'known and unknown operatives. This FISC opinion was issued more than a month after EPIC filed its Mandamus Petition challenging the NSA domestic surveillance in the U.S. Supreme Court. The Eagan opinion has also been criticized by legal scholars. For more information, see In re EPIC. (Sep. 20, 2013)
- EPIC Meets with President's Intelligence Review Group: EPIC President Marc Rotenberg and EPIC Advisory Board Member Steve Aftergood met today with the Review Group on Intelligence and Communication Technology. The President tasked the panel with the responsibility to assess whether the "United States employs its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust." EPIC submitted detailed recommendations and included copies of EPIC's Supreme Court petition, arguing that the current domestic surveillance program is unlawful, as well as EPIC's Congressional testimony on the FISA Amendments Act and EPIC's 2010 letter to the Foreign Intelligence Surveillance Court concerning reform of FISA procedures. The panel will accept comments from the public until October 4, 2013. Comments are to be sent to email@example.com, which oddly is the domain of the current Director of National Intelligence. (Sep. 9, 2013)
- New Surveillance Reports for Intelligence Community: The Director of National Intelligence has announced that the Intelligence Community will release annually "aggregate information concerning" the use of national security authorities. The reports will include the use of both FISA and National Security Letter legal authorities. EPIC has previously recommended improved reporting of FISA activities, similar to the wiretap reports issued by the Administrative Office of the U.S. Courts. News reports indicate that the Intelligence Community paid Internet companies $394 m in 2011 to provide customer data to the US government. For more information, see EPIC: FISA Reform. (Aug. 30, 2013)
- President Announces Intelligence Review Group, EPIC Presses for FISA Reform: President Obama met this week with the members of a newly formed group of experts to review intelligence and communications technologies. The group consists of computer security advisor Richard Clark, former CIA Director Michael Morell, and legal scholars Geoffrey Stone, Cass Sunstein, and Peter Swire. The White House said the group would advise the President on how "the United States can employ its technical collection capabilities in a way that optimally protects our national security and advances our foreign policy while respecting our commitment to privacy and civil liberties, recognizing our need to maintain the public trust, and reducing the risk of unauthorized disclosure." This week, EPIC contacted each of the review group members to provide important materials regarding the protection of privacy and civil liberties. EPIC sent to the Review Group members copies of EPIC's Supreme Court petition, arguing that the current domestic surveillance program is unlawful, as well as EPIC's Congressional testimony on the FISA Amendments Act and EPIC's 2010 letter to the Foreign Intelligence Surveillance Court concerning reform of FISA procedures. For more information, see EPIC: FISA Reform. (Aug. 28, 2013)
- FISA Court: NSA Violated Fourth Amendment and the FISA: A newly released opinion by the Foreign Intelligence Surveillance Court found that the NSA violated the Fourth Amendment and the Foreign Intelligence Surveillance Act when it acquired tens of thousands of wholly-domestic Internet communications. According to the opinion of the former Presiding Judge of the FISA Court, the NSA acquired more than 250 Million Internet communications per year. Roughly 9% of these communications are obtained via "upstream collection" and more than 50,000 each year contain domestic communications. The FISC found that NSA's targeting and minimization procedures were not reasonable under the Fourth Amendment given the large number of wholly domestic communications obtained. The FISC also found that NSA's minimization procedures violated the FISA, and required that the agency adopt additional protections to ensure privacy. For more information, see EPIC: Foreign Intelligence Surveillance Court. (Aug. 22, 2013)
Recent debates over the scope and legality of foreign intelligence surveillance relate to two key provisions of the Foreign Intelligence Surveillance Act ("FISA"). These provisions were added and subsequently amended in the decade following the attacks of September 11, 2001. The first is the business records provision, which was established in the USA PATRIOT Act, Section 215. The second is the provision outlining procedures for targeting certain persons outside the United States other than United States persons, added by Section 702 of the FISA Amendments Act of 2008 ("FAA"). Both of these provisions expanded the scope of foreign intelligence surveillance that can be conducted within the United States.
As new details have emerged about the FBI and NSA's domestic intelligence-gathering practices, it has become clear that the current system does not provide sufficient transparency to ensure public oversight and trust. There are three main problems with the current system that have allowed this to occur: the development of a secret body of constitutional and statutory law by the FISC, structural limitations on judicial review of FISA surveillance, and rules inhibiting Congress’ ability to facilitate public oversight. As a result, important questions about the scope and nature of surveillance activity have remained unanswered and the public has been left in the dark.
Stop Unlawful Collection of Domestic Telephone Records
Over the last two months, top administration officials including the Director of National Intelligence have acknowledged the NSA's telephone metadata program, which involves the collection of a majority of call records in the United States. EPIC and others have argued that the FISC simply lacks the authority to grant an order for all domestic call detail records from Verizon or any other communications provider. Under the relevant FISA provision, the court is authorized to issue an order compelling production of business records if it finds that they are "relevant to an authorized investigation" of international terrorism. The FISC is not authorized to compel a service provider to produce, on an ongoing basis, the call detail records of millions of innocent Americans, which are irrelevant to any national security investigation. The NSA's domestic metadata surveillance program is unlawful under the FISA.
Last month, in response to the unlawful FISC order, EPIC filed a petition for a Writ of Mandamus in the U.S. Supreme Court, seeking to vacate the order and find that the FISC exceeded its statutory authority. Four groups of leading privacy and constitutional scholars then filed amicus curiae briefs in support of the EPIC Mandamus Petition, and the Solicitor General indicated that he will be filing a response. Legal experts agree that this bulk collection of Americans' telephone records exceeds the limitations of Section 215, that it undermines the Congressional intent of the FISA, that it is contrary to the purposes of the Fourth Amendment, and that the Supreme Court has the authority to issue the relief that EPIC seeks.
The current domestic metadata surveillance program is unlawful and should be discontinued.
Enable Public Oversight of Surveillance Programs
At present, the FISA grants broad surveillance authority with little to no public oversight. Section 702 of the FISA Amendments Act of 2008 ("FAA"), which was reauthorized on December 30, 2012, grants the Attorney General and the Director of National Intelligence broad authority to conduct surveillance targeted at persons reasonably believed to be outside the United States. The FISC has found that surveillance conducted under Section 702 directives acquires tens of thousands of "wholly domestic" communications each year. Given the significance of this intrusion into Fourth Amendment-protected communications, it is necessary to establish public oversight of these programs by requiring detailed annual reports.
Soon after the passage of the USA PATRIOT Act, which amended various FISA provisions, a special committee of the American Bar Association undertook an evaluation of the expanded use of FISA and made recommendations to ensure effective privacy safeguards. The ABA recommended an "annual statistical report on FISA investigations," comparable to the annual Wiretap Report published by the Administrative Office of the United States Courts. EPIC recently emphasized the need for such a report given the broad scope of surveillance authorized by the FAA. Each year, EPIC and other organizations closely review the wiretap report released by the administrative office, which provides a comprehensive overview of the cost, duration, and effectiveness of surveillance authorized under Title III. The wiretap report is a critical document that allows the public to evaluate the effectiveness of surveillance conducted in criminal investigations.
In contrast with the wiretap report, the annual FISA letter sent by the Attorney General provides very little useful information about the use of intelligence authorities. The letter recites the number of applications made by the government for electronic surveillance, physical searches, and access to certain business records as well as the requests made by the Federal Bureau of Investigation pursuant to the National Security Letter authorities. The letter also notes the number of applications for electronic surveillance withdrawn by the government, modified by the FISC, or denied by the FISC in whole or in part. Importantly, the letter does not provide any context about the scope of business records collected under Section 215 or any information about the number of directives issued pursuant to Section 702.
Administration officials should publish more information about current surveillance programs, including details about their use, effectiveness, and their impact on the privacy of U.S. persons.
Publish All Significant FISC Opinions
The FISC has jurisdiction to "hear applications for and grant orders approving electronic surveillance" and "physical search[es]" for the "purpose of obtaining foreign intelligence information" on foreign nationals within the United States. The FISC also has the authority to grant applications for pen/trap surveillance and orders compelling the production of business records. Applications to the FISC are secret and its hearings are non-adversarial and ex parte. In addition, FISC opinions are classified and there is no requirement that they be declassified and published. As a result of FISC's review of Section 702 targeting and minimization procedures, the court is now ruling on important and novel Fourth Amendment issues. This new body of secret constitutional and statutory law makes it difficult for the public to fully evaluate the scope and impact of the intelligence surveillance programs.
EPIC has previously proposed amendments to the FISC's rules that would increase transparency and reporting of court opinions. In comments to the FISC in 2010, EPIC urged the Court to regularly publish its orders, opinions, or decisions. "In order to fully understand how FISA is being interpreted by the Court and to determine whether the Court has been an objective check to an overzealous government, the public and Congress need access to the Court's rulings." While facts, sources, or methods may be properly classified, legal analysis and judicial opinions should be shared with the public. Secret law is contrary to values and needs of democratic government.
The publication of significant FISC opinions, including those already provided to congressional intelligence and judiciary committees, should be mandatory and subject to a prompt declassification process.
Make the FISC More Adversarial
In addition to the proposals discussed above, EPIC also supports the creation of a &"special advocate" to bring adversarial proceedings to the FISC. President Obama has endorsed the creation of a FISC adversary that argues in favor of civil liberties and in the public interest, and prominent members of Congress have already introduced relevant legislation.
- In re EPIC, S.Ct. No. 13-58 (Jul. 8, 2013)(seeking a writ of mandamus to vacate the order of the FISC requiring production of all Verizon telephone records).
- Testimony of EPIC Executive Director Marc Rotenberg, Hearing on the FISA Amendments Act of 2008 before the Subcommittee on Crime, Terrorism, and Homeland Security of the House Committee on the Judiciary (2012).
- EPIC Comments to the Foreign Intelligence Surveillance Court's "Proposed Amended Rules" (2010).
- American Bar Association, Section on Individual Rights and Responsibilities, FISA Oversight Resolution (Feb. 10, 2003).
- ACLU, How the NSA's Surveillance Procedures Threaten American's Privacy (June 21, 2013).
- EPIC: FISA
- Mass Surveillance in America: A Timeline of Loosening Laws and Practices, ProPublica (June 7, 2013).
- NSA Surveillance Lawsuit Tracker, ProPublica (2013).
- Office of the Director of National Intelligence, IC on the Record
- U.S. Plans Reports on Secret Court Orders to Telecom Providers, Alina Selyukh, Reuters (Aug. 29, 2013)
- DNI to Release Surveillance Request Data, Tony Romm, Politico (Aug. 29, 2013)