The Senate Judiciary Committee will hold a hearing on the Foreign Intelligence Surveillance Act Amendments Act Tuesday May 10. The Act, passed in 2008, created what is now known as Section 702 of the Foreign Intelligence Surveillance Act (FISA).
Section 702 is used for mass spying, and government surveillance conducted under the law unconstitutionally searches and seizes Fourth Amendment-protected communications. Indeed, in 2011, a judge on the secretive Foreign Intelligence Surveillance Court (FISC) acknowledged the programs store more than 250 million communications annually in NSA repositories and that tens of thousands of wholly domestic emails were being collected under the statute. A report by the Washington Post revealed more: hundreds of thousands of Americans' emails were being collected and nine of 10 account holders found in a large cache of intercepted conversations were not the intended surveillance targets. The section is one of the core statutes at issue in our lawsuit against the NSA.
The Judiciary Committee hearing begins the first formal review of the statute by the Senate this year and comes in light of Section 702's expiration in December 2017.
EFF submitted a letter for the record outlining some of the fundamental problems with the statute. The letter urges the Committee to:
- Limit the scope of surveillance or stop it entirely
- Require the government to submit surveillance targets for judicial review
- Prohibit backdoor searches
- Mandate transparency and oversight
The full letter can be found here and the introduction is below:
Dear Chair Grassley and Ranking Member Leahy:
We submit this letter for the record in connection with the Senate Judiciary Committee’s hearing on May 10, 2016 titled “Oversight and Reauthorization of the FISA Amendments Act: The Balance between National Security, Privacy, and Civil Liberties.”
The Electronic Frontier Foundation (EFF) has strongly opposed Section 702 of the Foreign Intelligence Surveillance Act (“Section 702”) since its enactment because the statute is used to conduct unconstitutional and warrantless surveillance.
The Judiciary Committee is uniquely positioned to foster a much-needed national conversation on surveillance conducted under the statute. Key questions about the government’s use of Section 702 remain unanswered despite the declassification of documents and helpful reporting by the Privacy and Civil Liberties Oversight Board. For instance, the public still does not know the number of Americans' communications or the number of innocent foreigners' communications collected under the statute. The public does not know the procedures used by the Department of Justice to notify criminal defendants that Section 702-derived information was used in a prosecution. And the public does not know how often the FBI searches Section 702 data for non-national security purposes. These questions must be publicly answered well before Section 702’s expiration in December 2017.
Given what is known about Section 702's invasive surveillance, we urge the Committee to, at minimum:
- Limit the Scope of Surveillance or Stop It Entirely
- Require the Government to Submit Surveillance Targets for Judicial Review
- Prohibit Backdoor Searches
- Mandate Transparency and Oversight