The world was provided confirmation last week of widespread, unconstitutional domestic surveillance of innocent Americans' call records and online activity. But, starting this week, congressional staffers will be briefed in private, newspapers will be forced to report second-hand on what occurred in those briefings, and the public will, once again, be left out of discussions vital to our representative democracy. These discussions should be occurring in public, in an open forum, and for all to hear. Secret briefings, identical to those going on now, were carried out in 2006, after the first disclosure of the NSA's domestic spying program occurred. Seven years later, the program has only grown bigger and more dangerous. This is why we encourage you to call your Senator now and demand that public hearings occur.
Politicians must take an aggressive approach during the upcoming briefings, hearings, and investigations. First, they must determine the true scope of the two different programs—the business records program (Section 215 of the PATRIOT Act) and the PRISM surveillance program based on Section 702 of the Foreign Intelligence Surveillance Act. Then, elected officials must push for disclosure of the full domestic surveillance apparatus operated by the NSA. Politicians need to be careful that officials do not play word games or offer "the least untruthful"—also known as misleading—answers.
Some hearings have touched on the issue, like the recent Senate Apropriations Committee (video) hearing. But the first hearing that must touch on some of these questions will take place this Thursday. The House Judiciary Committee will hold a hearing on the Oversight of the Federal Bureau of Investigation (FBI). The FBI, along with the NSA, is at the center of the spying storm, and FBI Director Robert Mueller has been involved with the NSA's program nearly from its inception.
With that, here are some questions politicians must ask at the hearing:
1) What are the names, capabilities, and purposes of surveillance programs that rely on Foreign Intelligence Surveillance Act authorities, other electronic surveillance statutes, or voluntary cooperation of service providers to acquire or collect widespread information—whether by computer or human—of American communications (defined to include both “metadata” and “content”)?
2) The business records program and the PRISM program have been confirmed by statements of the Director of National Intelligence. It has also been reported that the NSA intercepts information from upstream providers through operations codenamed “Fairview” and “Blarney.” How do "BLARNEY" and "FAIRVIEW" operate, what information is obtained through the programs, and what is their purpose?
3) It has been widely reported that the intelligence community relies on uncommon definitions of common terms. Can you define the terms "collect," "acquire," "intercept," and "content"? If a computer or other device obtains, scans or processes Americans' communications or communications records (on behalf of the government), has the government collected the data? Or must a human being actually perceive the data before you deem that the government collected it?
4) The Washington Post noted that under the NSA's domestic spying program, quarterly reports describing the number of accidental collections of U.S. person content is retained and disseminated to officials. When are you releasing these reports?
5) How long does the intelligence community retain the information obtained under these authorities? Under what circumstances, if any, are acquired communications (or communications records) deleted?
6) Section 215 of the PATRIOT Act authorizes the FBI to collect any "tangible things" relevant to an investigation. According to the Wall Street Journal, dragnet orders relying on Section 215 were also issued to AT&T, Sprint, Internet service providers (ISPs), and credit card providers. What companies, other than Verizon, have received a Section 215 order similar in scope to the one disclosed last week? Has any recipient ever challenged receiving such an order?
7) Can other authorities be used to supplement this search in lieu of Section 215? Has the government ever used National Security Letters or other investigative tools to obtain business records en masse?
8) The “tangible things” sought by the Verizon court order was "telephony metadata." Are there any limits to the type of “things” the FBI can obtain under Section 215? Could the FBI obtain millions of emails with a Section 215 order? Why not? What are the exact components of "telephony metadata" and how is that term defined? Could "metadata" include subject lines of emails, search terms, URLs, and/or location data?
9) The order sought Verizon's "telephony metadata" for its subscribers on an "ongoing daily basis." Has the FBI or another member of the intelligence community used Section 215 to acquire information other than "telephony metadata" in bulk? Has the FBI used Section 215 of the PATRIOT Act only for presently existing records, or has the FBI or any other agency used Section 215 to apply for an order authorizing prospective collection of any relevant tangible record?
10) How do you define "relevant" for Section 215 purposes? Is anything "irrelevant" under that definition? The FISC's order also relied on the definition of "content" contained within the Wiretap Act, 18 U.S.C 2510. Why does the order use the definition of “content” contained in another statute when FISA, itself, defines the term?
11) The Fourth Amendment was created, in part, to protect against "general warrants." Why is a court order compelling Verizon to provide millions of subscribers calling information to the government not a general warrant? Why do these orders not violate the Fourth Amendment? Who do these orders not violate the First Amendment's free speech protections or rights of association?
12) Section 702 of the FISA Amendments Act provides broad authority for the government to target persons reasonably believed to be outside the United States. According to reports, Microsoft, Google, Yahoo, Facebook, and other companies have been required to comply with targeting orders under Section 702. What companies, other than those listed, have received directives or orders to comply with Section 702 surveillance or any similar broad collection authority under FISA? Have any recipients ever challenged receiving such an order? How many directives or orders have been issued under Section 702? How many individuals are typically affected by a single order? If you are unable to provide an estimate, why are you not able to?
13) The New York Times reported that some orders issued under Section 702 can be "broad sweep[s] for intelligence, like logs of certain search term.” How many Internet users' communications (including metadata and content) have been made accessible to the intelligence community to or through PRISM? How many Internet users' communications (including metadata and content) have been algorithmically inspected in the course of completing queries generated with, from, or by PRISM? If you cannot give an estimate, why are you not able to?
14) According to reports, NSA analysts make targeting decisions based on a 51% confidence level that a target is "foreign." How do you ensure that your targets are not Americans? What are the metrics, procedures, and policies for arriving at such determination? How do you determine if there is a "valid foreign intelligence purpose" for the targeting? What are the minimization procedures for targeting under Section 702?
15) In a letter written to Senator Wyden on July 20, 2012, the Director of National Intelligence admitted that "on at least one occasion" the Foreign Intelligence Surveillance Court determined the minimization/collection performed under Section 702 violated "the spirit of the law" and the Fourth Amendment. In what ways did the surveillance violate the Fourth Amendment and the “spirit of the law”? What has been done to correct the unconstitutional surveillance identified by the FISC? Why has this opinion not been made public?
16) The FISA Amendments Act provides the government with extraordinarily broad authority to obtain intelligence information without identifying particular targets, facilities, or locations to be monitored, and the statute gags service providers from ever disclosing having received the order. Why do these orders not violate the Fourth Amendment? The First Amendment?