The U.S. government’s warrantless Internet spying is in the hot seat today.
The House Judiciary Committee is holding a two-part hearing this morning about the Section 702, created by the FISA Amendments Act, which the government uses to justify the unconstitutional mass surveillance of Americans’ online activity. EFF opposes the sweeping surveillance that happens under Section 702, and we’re calling on Congress to let the authority lapse when it is set to expire at the end of the year.
In advance of this hearing, a coalition of Internet giants known as Reform Government Surveillance issued a letter calling for significant reforms to Section 702. We hope that the companies’ letter will set the tone for this hearing: Section 702 must not be reauthorized in its current form.
Below is our running live blog of the House Judiciary hearing’s unclassified portion.
8:00 a.m. (PST) -- While the hearing started at 10 a.m. (EST), the Committee is still in its closed, classified session. We’ll start live blogging as soon as the public portion of the hearing begins.
8:53 a.m. (PST) -- The classified hearing is going longer than expected.
9:40 a.m. (PST) -- The Committee is still in closed session. We'll start blogging as soon as there's something to blog.
10:20 a.m. (PST) -- The closed session is finally over after more than three hours and the unclassified hearing is about to start.
10:40 a.m. (PST) -- Chairman Goodlatte (R-VA) has reconvened the hearing with a description of Section 702 that completely glosses over the fact that the operation of "Upstream," a program purportedly authorized under the section, scans vast quantities of Americans' communications without probable cause. Here's the full text of his statement.
10:55 a.m. (PST) -- The Committee’s top Democrat Rep. John Conyers took the intelligence community to task for failing to deliver on its promise to provide lawmakers an estimate of the number of U.S. communications that are “incidentally” swept up by the NSA under Section 702.
While lawmakers repeatedly asked for that report to inform the congressional debate over Section 702 reauthorization, “the intelligence community has not so much as responded to our December letter” asking for an update on the timing of the estimate, he said. “I had hoped for better.”
Conyers said lawmakers “will not simply take the government’s word on the size of the so-called incidental collection.” He’s right, and we won’t take the government’s word either. No one outside of the intelligence community (or even inside the IC, it seems) has a good estimate of how many Americans are impacted by the warrantless Internet surveillance under Section 702. That is unacceptable as Congress debates reauthorizing this sweeping surveillance authority.
10:59 a.m. (PST) -- Mr. Kosseff (a professor at the U.S. Naval Academy) takes the position that “foreign intelligence” represents a blanket exception to the Fourth Amendment’s warrant requirement, and that Section 702 falls within it. We at EFF cannot disagree more.
11:05 a.m. (PST) -- Ms. Doss (a former NSA attorney) makes the deeply misleading claim that Section 702 collection is targeted surveillance. That’s just plain wrong; Section 702 includes spying directly on the Internet backbone.
11:06 a.m. (PST) -- The Committee has gone into recess for approximately 45 minutes so that members can make it to the floor for a vote.
12:33 p.m. (PST) -- We're now nearly 90 minutes into the "45 minute" recess. No sign of the Committee reconvening yet.
12:43 p.m. (PST) -- The Committee has reconvened and noted civil libertarian, Elizabeth Goitein from NYU’s Brennan Center, is testifying.
12:52 p.m. (PST) -- Ms. Goitein pushed back on the claim that surveillance under Section 702 targets individuals located abroad.
Despite the intelligence community’s claims to the contrary, Section 702 surveillance collects “a massive amount of Americans’ communications” which the government keeps “for years and routinely searches … for information to use against Americans in ordinary criminal proceedings,” she said. Thanks to Section 702, “the FBI is reading Americans’ emails and listening to their phone calls without a factual basis to suspect them of wrongdoing, let alone a warrant.”
This is crucial fact-checking of the myths spread by intelligence community officials.
12:55 p.m. (PST) -- Former NSA attorney April Doss just made the absurd claim that it would be more privacy intrusive for the NSA to estimate how many Americans’ communications are swept up in Section 702 collection.
1:00 p.m. (PST) -- Rep. Ted Lieu comes out strong against the backdoor loophole that lets law enforcement agencies like the FBI access Americans’ communications collected under Section 702. “That information can be passed to the FBI to do a criminal proceeding,” he said, calling it “a flat out violation of the Fourth Amendment.”
1:06 p.m. (PST) -- Rep. Raul Labrador asks: is it possible to subject the 250 million Internet transactions collected per year by the NSA to rigorous oversight? Ms. Goitein notes that there have been a large number of documented violations of law and NSA regulations and there is essentially no effective oversight.
1:10 p.m. (PST) -- Rep. Labrador raised the question of whether such a vast surveillance system can have adequate safeguards to prevent abuse. Specifically, he cited the recent example of National Security Adviser Michael Flynn resigning after it was leaked that the FBI had reviewed calls between Flynn and the Russian ambassador to the U.S. ahead of President Donald Trump’s inauguration.
“Can we prevent them from using this personal information to settle [political] scores?” Labrador asked.
While refraining from commenting on the specifics of Flynn’s surveillance, the Brennan Center’s Liza Goitein said the potential for abuse is one of the problems with the law. “The statute is not narrow enough,” she said.
1:16 p.m. (PST) -- Rep. Jim Jordan was skeptical of the intelligence community’s claim that it is difficult to come up with a long-promised estimate of how many Americans have had their communications collected under Section 702. “That seems like baloney to me,” the Ohio Republican said. “It’s the greatest intelligence service on the planet. You’d think they’d be able to know that.”
1:20 p.m. (PST) -- In response to questions from Rep. Jim Jordan, Goitein notes that the Privacy and Civil Liberties Oversight Board report shows that the FBI and NSA routinely search Section 702 collection for evidence that U.S. citizens have committed crimes unrelated to national security. But of course, we don’t know if any such citizens have been prosecuted because the NSA has been less than forthright in their notification requirements.
1:22 p.m. (PST) -- Rep. Ted Lieu raised the critical point that Section 702 surveillance isn’t limited to national security concerns. Instead, it is limited to “foreign intelligence” issues, which is a much broader category. “That could apply to academics, students, human rights activists, lawyers,” he said. “It’s this massive group.”
Goitein agreed, replying that the system relies on the intelligence community makes responsible decisions about who to target. “We are trusting on the self restraint of the people who are operating these programs,” she said.
1:25 p.m. (PST) -- Lieu also made the point that EFF has long-argued: the NSA violates the Fourth Amendment’s prohibition on warrantless seizures when it collects Americans’ communications even before it violates the Fourth Amendment’s prohibition on warrantless searches before it scans those communications. As Lieu put it: “Why is the seizure of Americans’ communications not a violation of the Fourth Amendment, totally aside from the searching of it?”
1:28 p.m. (PST) -- Rep. Ted Poe notes that the NSA doesn’t need to “target” Americans under Section 702 since that would unquestionably require a warrant. Instead, they can just “run across” Americans’ communications that’s “incidentally” collected, and then criminally prosecute them. Indeed, the FBI can search data collected under Section 702 without a warrant. “I think that is illegal and a violation of the Constitution and an abuse of power” says Rep. Poe.
1:40 p.m. (PST) -- Mr. Kosseff notes that it’s possible that a clean reauthorization of Section 702, the US-EU Privacy Shield might fail, since Section 702 contains no privacy protections for non-US persons.
1:48 p.m. (PST) -- The hearing ended on crucial point. As Goitein put it: “Oversight not an end in itself. It’s never a substitute for adequate substantive limits in the law. The law and the rules allow the FBI to read Americans’ emails without obtaining a warrant. The FBI could be scrupulously adhering to those rules, and we still have a problem.”
1:50 p.m. (PST) -- And with that, the hearing is adjourned.