The debate over expiring online spying powers is heating up.
The Senate Intelligence Committee is holding an open hearing on Section 702, as enacted by the FISA Amendments Act, which is set to sunset at the end of the year. The House Judiciary Committee held its own hearing on the issue earlier this year.
In court and to Congress, we’ve long argued that the sweeping Internet surveillance programs under Section 702 is privacy invasive and unconstitutional. Tell your representatives in Congress to protect their constituents’ privacy and let this warrantless spying power lapse.
Below, we’ll be liveblogging today’s Senate Intelligence hearing.
9:40 a.m. (PDT) -- The public portion of the hearing has been adjourned. Note, there was significant discussion of the various investigations into alleged collusion between the Trump Administration and Russia. We focused this liveblog on stated purpose of the hearing however: the reauthorization of Section 702 and the unconstitutional mass surveillance programs the NSA operates under its authority.
9:39 a.m. (PDT) -- Senator Wyden was recognized for one additional question towards the end of the hearing. Wyden asked “I’d like a yes or no answer on this: can the government use FISA Section 702 to collect communications that it knows are entirely domestic?”
DNI Coats responded, “Not to my knowledge; that would be against the law.”
Wyden has been known to ask questions of intelligence officials which he already knows the answer to and knows that the intelligence official will answer less-than-honestly. Famously, in 2013, Senator Wyden asked then-DNI Clapper “does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper’s answer was simply false in light of what we now know: “Not wittingly. There are cases where they could inadvertently perhaps collect, but not wittingly.”
9:00 a.m. (PDT) -- NSA Director Michael Rogers left open the possibility that the agency would look to restart the controversial “about searches.” In response to questions from Sen. James Lankford, Rogers walked lawmakers through the NSA-directed audit and resulting Foreign Intelligence Surveillance Court ruling that led the agency to stop searching the content of all communications intercepted under Section 702 for communications merely mentioning an authorized target.
Rogers noted that the decision to stop “about searches” was because the agency’s technical capabilities could not reliably comply with court-ordered rules for such searches. According to Rogers, the FISA Court understands that “if we can work that technical solution in a way that generates greater reliability, I would potentially come back to the court to recommend that we reinstitute [about searching under 702].”
8:46 a.m. (PDT) -- Senator King wants to discuss backdoor searching, but only in closed session. King noted that he believes the Fourth Amendment requires a warrant to search for an American’s name in data “legally” collected under Section 702. Unfortunately, we won’t hear the answer.
8:30 a.m. (PDT) -- Surveillance critic Sen. Ron Wyden called out DNI Coats for backtracking on his pledge to do everything in his power to get the promised estimate of the number of Americans’ communications collected under Section 702. Coats replied that he had pledged only to find out why such an estimate was impossible to provide.
As Wyden noted, Coats’ claim is simply not true. During his confirmation hearing in March, then-Senator Coats told Wyden he would “do everything I can to work with [NSA Director Mike] Rogers and the NSA to get you that number.”
Wyden called Coats’ reversal a “very, very damaging position to stake out.” He warned, “We’re going to battle it out in the course of this, because there are a lot of Americans that share our view that security and liberty are not mutually exclusive.”
8:12 a.m. (PDT) -- Rosenstein repeats again the claim that there has never been an intentional violation of oversight rules regarding Section 702. So we guess that means that “LOVEINT,” the intentional misuse of NSA’s databases by analysts to spy on lovers and ex-lovers wasn’t done under Section 702?
Also, his response misses the point that the programs under Section 702 are themselves problematic and include mass, un-targeted surveillance of both foreigners and Americans. You can follow the rules, but if the rules are privacy invasive, you’re still invading Americans’ privacy.
7:53 a.m. (PDT) -- Deputy Attorney General, Rod Rosenstein: in the absence of Section 702, we would be required to obtain a court order based on probable cause whenever we wanted to collect foreign intelligence information on foreigners not in the United States. But he fails to note that Section 702 collection includes Americans’ communications. And yes, that does require a warrant.
7:45 a.m. (PDT) -- DNI Coats is backing out of his predecessor’s commitment to provide Congress with an estimate of how many U.S. persons’ (citizens and permanent residents) communications are collected under Section 702. Congress needs that information if it wants to responsibly debate reauthorizing this authority.
“To determine if communicants are U.S. persons, NSA would be required to conduct significant additional research,” Coats said.
That is not an adequate response to the question of how many Americans’ communications are collected without a warrant. As Liza Goitein--co-director of the Brennan Center for Justice’s Liberty and National Security Program--said during the House hearing earlier this year, the NSA is currently required to determine whether a communications collected under Section 702 is to or from a U.S. person. If the NSA is following the law, they should already know how many Americans’ communications are collected through Section 702 programs. No additional research is required to provide the long-promised estimate, and the Intelligence Community should not be hiding behind this supposedly pro-privacy excuse.
7:40 a.m. (PDT) -- During his testimony, DNI Coats talked about NSA’s recent decision to end “about searches,” the NSA’s searching of the content of communications through Upstream surveillance. Read more about what that means and why it’s not the only change needed to rein in Section 702 surveillance.
7:33 a.m. (PDT) -- Director of National Intelligence, Dan Coats, in his prepared testimony totally glossed over how poorly Section 702 oversight actually works. Contrary to DNI Coats’ suggestion, even the secretive Foreign Intelligence Surveillance Court has found that intelligence analysts violated so routinely that the court couldn’t in allow it to continue.
7:31 a.m. (PDT) -- In his opening statement, Senate Intelligence Chairman Richard Burr defended Section 702, warning that now “is not the time to needlessly roll back and handicap these capabilities.” He noted concerns from privacy advocates like EFF, but tied Section 702 to the U.S. government’s ability to conduct investigations, including the investigation into possible coordination between Russia and President Donald Trump’s advisors.
We do not think the need to conduct investigations can ever outweigh the constitutional protections provided to Americans. Section 702 defenders like Burr will say these authorities are aimed at foreigners located abroad, but we know that programs under Section 702 intentionally and routinely sweep up millions of communications to and from Americans, all without a warrant.
Senator Burr -- along with Sen. Tom Cotton -- is reportedly behind a new bill that would not only reauthorize Section 702, but make it permanent. Permanently reauthorizing Section 702 is a mistake and would leave Congress without any opportunity to conduct meaningful oversight of these vast Internet spying powers.