Foreign Intelligence Surveillance Act Reform

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  • Schneier: Over 700 Million People Taking Steps to Avoid NSA Surveillance: Famed technologist and EPIC Advisory Board member Bruce Schneier pushed back against media claims that Edward Snowden's revelations about the NSA have had little impact on Internet users. A recent global survey found that 39% of Internet users who have heard of Snowden have taken steps to protect their online privacy. Some news articles have characterized these users as "merely 39%" and "only 39%." But Schneier did the math and found that Snowden’s impact has been far from insignificant: "706 million people have changed their behavior on the Internet because of what the NSA and GCHQ are doing." A recent Pew survey also indicates that the NSA revelations have had a dramatic impact on Internet users. Last year, EPIC filed a petition to the U.S. Supreme Court to stop the NSA's collection of domestic telephone records, following the release of the "Verizon Order." For more information, see EPIC: In re EPIC, EPIC: Smith v. Obama, and EPIC: Foreign Intelligence Surveillance Act Reform. (Dec. 17, 2014)
  • British Court Upholds Mass Surveillance by UK Spy Agency: The Investigatory Powers Tribunal, which reviews complaints of unlawful surveillance by Britain's intelligence agencies, ruled that mass collection of online communications is legal. The complaint was brought by several privacy rights groups in the UK and focused on GCHQ's electronic surveillance program, TEMPORA, and information the UK spy agency obtained through NSA's PRISM and Upstream programs. The privacy rights groups plan to appeal the decision to the European Court of Human Rights. EPIC previously challenged the NSA's mass surveillance of U.S. phone records in a 2013 petition to the Supreme Court. EPIC's petition argued that the Foreign Intelligence Surveillance Court exceeded its authority when it ordered Verizon to turn over records on all of its customers to the NSA. The EPIC petition was supported by legal scholars and former members of the Church Committee. For more information, see In re EPIC and EPIC: Foreign Intelligence Surveillance Act Reform. (Dec. 8, 2014)
  • Senator Leahy Calls on the President to End Bulk Collection of Phone Records: Today Senator Patrick Leahy (D-VT) urged President Obama to end the dragnet collection of U.S. telephone records under Section 215 of the Patriot Act. The current authorization for the NSA's bulk collection program expires on Friday, December 5, 2014. Senator Leahy's comments follow the recent efforts to pass the USA FREEDOM Act of 2014, which would end the NSA's surveillance program. Senator Leahy said that ending the reauthorization of the program "would not be a substitute for comprehensive surveillance reform legislation - but it would be an important first step." In June EPIC, joined by many organizations, urged the President and Attorney General to end the bulk collection program. And in 2013 EPIC petitioned the Supreme Court, arguing that a special surveillance court exceeded its authority when it ordered Verizon to turn over records on all of its customers to the NSA. For more information, see In re EPIC and EPIC: Foreign Intelligence Surveillance Act Reform. (Dec. 4, 2014)
  • EPIC Seeks Reports on FISA Court Decisions: In a Freedom of Information Act lawsuit against the Department of Justice, EPIC filed a Motion for Summary Judgment on Friday arguing that the agency improperly withheld surveillance reports sought by EPIC. The semiannual reports, prepared for Congressional oversight committees, summarize significant FISA Court decisions and include the total number of FISA applications filed by the government and the number of U.S. persons targeted for surveillance. They are similar to reports that are routinely disclosed to the public. EPIC argued that the "FISA Pen Register" reports should also be disclosed because they describe topics of "utmost importance to the public and are necessary to inform the ongoing debate over current surveillance authorities." EPIC maintains a summary of all the annual FISA statistics published by the Attorney General. For more information, see EPIC v. DOJ: FISA Pen Register Reports and EPIC: FISA Court Orders. (Nov. 24, 2014)
  • Senate Republicans Block US Surveillance Reform: An effort led by Senator Patrick Leahy (D-VT) to pass the USA FREEDOM Act failed on a narrow procedural vote last night. The FREEDOM Act would have ended the NSA's bulk collection of US telephone records. The bill would also improve oversight and accountability of the Foreign Intelligence Surveillance Act. Last year, EPIC petitioned the Supreme Court to suspend the bulk collection of Americans' telephone records. EPIC's petition was supported by dozens of legal scholars and former members of the Church Committee. EPIC also testified in Congress in support of improved reporting for domestic surveillance activities. For more information, see EPIC: Foreign Intelligence Surveillance Act Reform and In re EPIC. (Nov. 19, 2014)
  • 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)

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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