In a stunning revelation, a sitting U.S. Congressman has publicly identified himself as the subject of likely illegal surveillance by the NSA and FBI. During a hearing on the question of renewal the controversial mass NSA spying authorities known as FISA Amendments Act section 702, Rep. Darin LaHood of Illinois revealed: “the member of Congress who was wrongly queried multiple times solely by his name was in fact me.” It seems Rep. LaHood was one of the Congresspersons identified in a footnote (footnote 92) in a recent government report about the mass spying program which stated that an intelligence analyst improperly repeatedly searched 702 data “using only the name of a U.S. congressman.”
What’s equally stunning is that despite absolutely knowing that he was spied upon – something that is extremely rare given the level of secrecy around 702 – neither Rep. LaHood nor anyone else illegally spied upon will likely get a chance to seek a remedy in a court. That’s not just because 702 is poorly drafted and has been even more poorly executed. It’s because of how governmental secrecy has now metastasized to completely prevent anyone from stopping illegal NSA spying of them, much less get any other legal remedy.
Quite simply, governmental secrecy now renders moot many of the accountability and oversight mechanisms for national security surveillance that exist on paper in FISA as well as in the U.S. constitution.
A Little History – EFF in the Courts
One of EFF’s highest priorities for nearly two decades is making sure you can have a private conversation online. And specifically, we want to ensure that individuals can seek judicial accountability for violations of their constitutional and statutory rights committed through the government’s warrantless foreign intelligence surveillance inside the United States.
EFF’s work on this issue predates the passage of Section 702 itself. Our 2006 lawsuit, Hepting v. AT&T, relied on first-hand evidence from whistleblower Mark Klein to show that the telecommunications companies were copying the contents of Internet traffic at the behest of the NSA. Congress essentially mooted this lawsuit in 2008 by granting the companies retroactive immunity as part of the FISA Amendments Act, which also instituted Section 702. Not to be deterred, and at the specific suggestion of key members of Congress, EFF again sued on behalf of AT&T customers, this time seeking to hold the government itself accountable. That lawsuit, Jewel v. NSA, powered on for 14 years, bolstered by the Snowden revelations and the flood of additional public information about the NSA’s mass spying programs.
Jewel v. NSA and the Locking of the Courthouse Door
The Jewel lawsuit came to an end last year, not because the judiciary disagreed with our arguments about the unconstitutionality or illegality of the government’s surveillance. It ended but because the courts validated the government’s claims that a program known and debated across the world is somehow too secret to be challenged in open court by members of the public affected by it. Specifically, the Supreme Court refused to grant certiorari and reconsider a Ninth Circuit decision (and an underlying district court ruling) that held that the common law state secrets privilege blocked our clients’ efforts to prove that their data was intercepted, such that they had standing to sue. A similar case brought by the ACLU on behalf of Wikimedia was also rejected.
As Jewel illustrates, the judiciary has used secrecy to create a broad national-security exception to the Constitution, FISA, and 702 itself that allows all Americans to be spied upon by their government and denying them any viable means of challenging that spying. And now that impacts a sitting member of Congress directly.
This exception rests on a pair of misinterpretations of common law and statutory procedures for dealing with supposedly secret evidence. First, courts have allowed the government to invoke the state secrets privilege in Section 702 cases, despite Congress’ express creation of a statutory method for a federal court to secretly review evidence of claimed illegal surveillance, 50 U.S.C. § 1806(f). Second, the courts have expanded the scope of that privilege to effectively allow the government to claim secrecy over widely known facts, and end litigation involving these facts, based on little more than its own say-so.
Congress Can Reopen the Courthouse Doors to Surveillance Victims
With the upcoming sunset of Section 702, Congress has the opportunity to correct these mistakes. Congress can and should reaffirm its intention to create actual, useable accountability measures for the inevitable circumstances when individuals are wrongly surveilled or impacted by surveillance, and reopen the courthouse doors to individuals trying to protect their rights.
First, Congress can expressly override the Supreme Court’s mistaken statutory interpretation of FISA Section 1806 in FBI v. Fazaga, 142 S. Ct. 1051 (2022). Contrary to the Court’s holding in Fazaga, Congress clearly intended for individuals to be able to seek redress when they were wrongfully surveilled and, to do that, intended Section 1806(f) to displace the state secrets privilege in lawsuits in which evidence relating to electronic surveillance is relevant. The Supreme Court’s ruling essentially makes FISA’s promise of individual redress for violations of surveillance law a dead letter. Congress should reaffirm the rightful interpretation of the statute and correct the Supreme Court’s mistake.
Second, even when the state secrets privilege can apply, Congress can make clear that the case should not be dismissed. As far back as 2009, Congress debated the State Secrets Protection Act, H.R. 984, 110th Cong. (2009), which would have created procedures for courts to securely review evidence that the government claims is secret, and prevent cases from being dismissed based on state secrecy until plaintiffs have had an opportunity to discover all non-privileged evidence. Congress should revive these reforms and consider including them as part of any renewal or reform to Section 702.
In short, the courts have effectively blocked individuals from seeking the judicial accountability that Congress intended. Representative LaHood is just the latest in a long line of people who know they were surveilled but cannot do anything about it. It’s good that he has a position of authority over the NSA—it’s unlikely they will do that specific surveillance again. But the rest of us deserve to access the courts to protect our constitutional rights too.
These are just a small subsection of the needed reforms to ensure accountability and oversight of Section 702. Spying on the whole world is a bad idea because everyone deserves privacy of their communications. But as the now two decades of NSA mass spying demonstrates, spying on the whole world while protecting the constitutional rights of Americans just cannot be done. It’s time to stop the charade and let this authority expire.