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Foreign Intelligence Surveillance Act Reform

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  • Documents Obtained by EPIC Lawsuit Show NSA’s Internet Metadata Program Was Sharply Criticized By FISA Judges While Congressional Oversight Lagged for Years: In a FOIA lawsuit against the Department of Justice, EPIC has obtained many documents about the NSA's Internet Metadata program. These include the Government's original FISA application seeking authorization to collect data from millions of e-mails, as well as declarations from NSA officials describing the program. The documents show that FISA Court Judge John Bates chastised the agency for "long-standing and pervasive violations of the prior [court] orders in this matter.'' The FISA Court first authorized the program in 2004, but the documents obtained by EPIC show that the legal justification was not provided to Congress until 2009. The documents also reveal that the DOJ withheld information about the program in testimony for the Senate Intelligence hearing prior to the reauthorization of the legal authority. The program was shut down in 2011 after a detailed review. For more information, see EPIC v. DOJ (FISA Pen Register) and EPIC: Foreign Intelligence Surveillance Court. (Aug. 12, 2014)
  • Senator Leahy Introduces Bill to End NSA Bulk Record Collection: Today Senator Patrick Leahy (D-VT), joined by Democratic and Republican Senators, introduced legislation to end the NSA's practice of collecting telephone records of Americans. Leahy described the bill as "the most significant reform of government surveillance authorities since Congress passed the USA PATRIOT Act 13 years ago." The USA Freedom Act would require require the government to specify specific "search terms" to obtain telephone record information. The government would have to demonstrate that it has a "reasonable, articulable suspicion" that the search term is associated with a foreign terrorist organization. The bill also requires a comprehensive transparency report for the use of FISA surveillance authorities. However, the bill exempts the FBI from certain reporting requirements. Civil liberties organizations support the bill. EPIC previously filed a Petition for Mandamus with the U.S. Supreme Court, seeking to end the bulk collection of American's phone records. EPIC's petition was supported by legal scholars, technical experts, and former members of the Church Committee. For more information, see In re EPIC and EPIC: FISA Reform. (Jul. 29, 2014)
  • Federal and State Wiretaps Up 5% in 2013 According to Annual Report, But Stats Don't Support FBI Claims of "Going Dark": The Administrative Office of the U.S. Courts has issued the 2013 Wiretap Report, detailing the use of surveillance authorities by law enforcement agencies. This annual report, one of the most comprehensive issued by any agency, provides an insight into the debate over surveillance authorities and the use of privacy-enhancing technologies. In 2013, wiretap applications increased 5%, from 3,576 to 3,395. Authorities encountered encryption during 41 investigations, but encryption prevented the government from deciphering messages in only 9 cases. This statistic contradicts claims that law enforcement agencies are "going dark" as new technologies emerge. Of the 3,074 individuals arrested based on wiretaps in 2013, only 709 individuals were convicted based on wiretap evidence. EPIC has repeatedly called on greater transparency of FISA surveillance, citing the Wiretap Report as a model for other agencies. EPIC also maintains a comprehensive index of the annual wiretap reports and FISA reports. For more information, see EPIC: Title III Wiretap Orders, EPIC: Wiretapping, and EPIC: Foreign Intelligence Surveillance Act. (Jul. 29, 2014)
  • House Adopts Weakened NSA Reform Bill, Senators Now Look to Improve Privacy and Transparency Protections: The U.S. House of Representatives has voted to adopt a modified USA "FREEDOM" Act. The bill no longer prohibits bulk collection of communications records. Other key provisions were also removed. Senator Leahy said that the bill is "an important step towards reforming" surveillance authorities, but expressed disappointment that the current version "does not include some of the meaningful reforms contained in the original" bill. In 2013 EPIC filed a Petition to the Supreme Court seeking to end bulk collection of telephone call records. EPIC also testified before the House in 2012 that the FISA should not be renewed without adoption of new reporting requirements. For more information, see EPIC: FISA and EPIC: FISA Reform. (May. 23, 2014)
  • House Judiciary Committee to Consider Bill to End Bulk Surveillance, Improve NSA Oversight: The House Judiciary Committee has scheduled a markup of the USA Freedom Act. The proposed "Manager's Amendment", sponsored by James Sensenbrenner (R-WI), would prevent bulk collection of phone records and other business records, and would limit the scope of phone record searches. The bill would also (1) limit the collection of US persons communications by the NSA's PRISM program, (2) require public reports on the use of FISA surveillance, (3) require declassification of significant FISA Court opinions, and (4) create a public advocate at the FISA Court. In 2012, EPIC testified before the House Judiciary Committee on the need for public reports and the declassification of significant FISC opinions. In 2013, EPIC filed a petition with the Supreme Court, alleging that the bulk collection of telephone record was unlawful. For more information, see EPIC: FISA Reform and In re EPIC. (May. 5, 2014)
  • Annual FISA Report Shows Decrease in Surveillance Orders, Questions About Scope Remain: The Department of Justice has published the 2013 FISA Report. The brief report provides summary information about the government's use of the Foreign Intelligence Surveillance Act. In 2012 the Foreign Intelligence Surveillance Court granted 1,789 FISA orders and 212 "Section 215" orders. In 2013, there were 1,588 requests to conduct FISA surveillance, with 34 modifications. The FISC also granted 178 business record orders under Section 215, with 141 modified by the court. The significant number of modified orders indicates that the government's initial applications are too broad. For example, the controversial NSA Metadata program, was authorized by the surveillance court under a modified order. It is possible that in 2013 the court authorized other bulk collection programs. For more information, see EPIC: FISC Orders 1979-2014 and EPIC: FISA Graphs. (May. 1, 2014)
  • EPIC Obtains Secret Attorney General Reports on Electronic Surveillance: As a result of an FOIA lawsuit, EPIC has obtained copies of the Attorney General Reports on the government's electronic surveillance activities. These reports have been submitted to Congress every six months since 2001 but have never before been disclosed to the public. These reports include new details about government collection of telephone and Internet records. The reports include the number of US persons targeted for "Pen Register" surveillance under the Foreign Intelligence Surveillance Act. The reports also contain noncompliance incidents and significant foreign intelligence court opinions, but those details have been withheld by the Justice Department. The documents obtained by EPIC also show that the Justice Department told Congress that the collection of telephone subscriber information would decrease, even after the section 215 bulk collection program began. The case is EPIC v. Dept. of Justice, No. 13-961. For more information, see EPIC v. DOJ - FISA Pen Registers and EPIC: FISA Stats. (Mar. 19, 2014)
  • In FOIA Lawsuit, EPIC Obtains Secret Reports on Data Collection: In a Freedom of Information Act lawsuit, EPIC has obtained reports that detail the number of times the Surveillance Court authorized the use of techniques that gather the telephone numbers and metadata of phone customers and Internet users. The previously secret reports obtained by EPIC cover the period between 2000 and 2013. The reports reveal a dramatic increase in the use of these techniques in 2004 and then a significant reduction in 2008, likely the consequence of a shift to other investigative techniques. The documents show that nearly all applications to the Surveillance Court were approved without modifications. In 2013, EPIC petitioned the Supreme Court to end the bulk telephone record collection program. Former members of the Church Committee and dozens of legal scholars supported the EPIC petition. For more information see: EPIC v. Department of Justice - Pen Register Reports, EPIC: Foreign Intelligence Surveillance Court Orders 1979-2012, and In re EPIC. (Mar. 3, 2014)
  • Federal Communications Commission Seeks Public Comment to Protect Phone Record Privacy: The Federal Communications Commission has invited public comments on a petition requesting the FCC to rule that the sale of consumer phone records to the government is a violation of the federal Communications Act. EPIC joined the petition, which was organized by Public Knowledge. In 2013, 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. In 2013 EPIC also wrote to the FCC to explain that Verizon had likely violated the Communications Act when it disclosed telephone records to the NSA. Public comments on the petition are due January 17, 2014 and reply comments are due February 3, 2014. For more information, see EPIC: CPNI (Customer Proprietary Network Information), and EPIC: Foreign Intelligence Surveillance Act. (Jan. 7, 2014)
  • Senate Confirms Judge Wald for Privacy Oversight Board: The Senate confirmed the reappointment of Judge Patricia M. Wald to the Privacy and Civil Liberties Oversight Board. Judge Wald's current term was set to expire next month, but President Obama re-nominated her on March 21, 2013. Last year, EPIC recommended that the Oversight Board, consistent with its mandate, pursue a broad agenda, including (1) suspension of the Fusion Center Program ; (2) limiting closed-circuit television surveillance; (3) eliminating the use of body scanners; (4) establishing privacy regulations for drones; (5) improving Information Sharing Environment (ISE) and Suspicious Activity Reporting (SARS) Standards; and (6) Privacy Act adherence. More recently, EPIC addressed the Board at a workshop on NSA Surveillance. And in response to a public rulemaking, EPIC also provided extensive comments on a proposed rule governing the Board's Freedom of Information Act practices. The Board adopted nearly all of EPIC's recommendations on transparency. For more information, See EPIC: Foreign Intelligence Surveillance Act and EPIC: Open Government. (Dec. 13, 2013)

Background

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.

Overview of the EPIC's FISA Reform Proposals

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.

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