Another group of lawmakers is starting the debate over whether and how to reauthorize an online surveillance power set to sunset at the end of the year.
The Senate Judiciary Committee is holding a hearing this morning on Section 702, as enacted by the FISA Amendments Act. That is the authority the government claims justifies the warrantless Internet surveillance of innocent Americans and others around the world and includes controversial Upstream and PRISM programs.
We’ve long argued on the Hill and in the courts that this surveillance violates privacy protections, including the Fourth Amendment, and that lawmakers should let the sun set on the law.
Today’s hearing comes after the House Judiciary Committee had a hearing on the expiring law in March, and the Senate Intelligence Committee had a hearing earlier this month. As we did with those hearings, we’ll be live-blogging this morning’s hearing. Follow along below.
9:13 a.m. PDT - The hearing has concluded. Thanks for reading!
9:10 a.m. PDT - Collins noted the concerns from the ODNI and the NSA that it would be difficult—and in some circumstances even privacy invasive—for the intelligence community to come up with an estimate of the number of U.S. persons impacted by “incidental” surveillance under Section 702. But she said she “adds [her] voice” to the calls that the intelligence community continue to work to find a way to deliver on the long-promised estimate.
9:03 a.m. PDT - Goitein tells Sen. Lee that every time the government conducts a backdoor search, it is an independent privacy violation. She points out that the list of crimes for which the DOJ can use backdoor search materials to prosecute is not public. Furthermore the DOJ has “spotty compliance at best” with the statutory requirement of notice to defendants against whom 702 information has been used.
8:55 a.m. PDT - Sen. Richard Blumenthal hinted at the idea of expanding the role of FISC amici, the outside experts that the FISC can call on when the government seeks FISC approval for surveillance that raises new legal questions. Blumenthal—who has long fought for a large role for a “special advocate” in FISC proceedings—asked witnesses how to improve the amicus process. Along the lines of Feinstein’s proposal, Klein suggested involving the amici when the FISC considers annual 702 recertification. Goitein noted that, under the system set up by the USA FREEDOM Act, the FISC chooses when to involve amici, and there’s no way for the amici to appeal the court’s decisions.
8:50 a.m. PDT - In response to a question from Sen. Grassley, Olsen says it would be “unwise” to impose a warrant requirement for backdoor searches of Americans’ communications incidentally collected under Section 702. Goitein points out it that if the NSA had intentionally sought to directly target these Americans’ communications, a warrant would be required in the first instance. For that reason, she believes backdoor searches violate “the spirit if not the letter” of Section 702’s prohibition on reverse targeting.
8:30 a.m. PDT - The first panel of intelligence officials has concluded, and the second panel of witnesses has started. They are former General Counsel of the NSA Matthew Olsen (currently at IronNet Cybersecurity), Center for a New American Security’s Adam Klein, Elizabeth Goitein of the Brennan Center for Justice, and Elisebeth Collins of the Privacy and Civil Liberties Oversight Board.
8:15 a.m. PDT - NSA’s Morris evaded questions from Sen. Patrick Leahy about when the NSA would seek court approval to reinstate “about collection” under Section 702. While Morris said the NSA does not currently have plans to do so, he also said the agency is “always looking at ways to improve the technical controls we have in place.” He also reiterated the agency’s opposition to a legislative ban on about collection, and declined to give a concrete answer to Leahy’s question about when the NSA would have a technical fix that would enable the agency to restart about collection.
8:08 a.m. PDT - Sen. Sheldon Whitehouse posed a question for the record asking the government to detail all the ways in which it “polices use and abuse of 702 information.”
7:55 a.m. PDT - Sen. Al Franken expressed his frustration with the ODNI’s professed inability to provide a “meaningful” accounting of American communications “incidentally” swept up in Section 702 surveillance. Pointing to the 2011 FISA court proceeding in which the NSA provided an estimate of wholly domestic communications it had collected, he pressed ODNI to come up with a similar estimate.
7:50 a.m. PDT - Sen. Mike Lee brought up the idea of tailoring the definition of “foreign intelligence information” to more narrowly focus on information related to national security threats. The NSA’s acquisition of communications under Section 702 must have the “significant purpose” to obtain “foreign intelligence information,” but that term is broadly defined and, in the past, has included things like information relevant to foreign affairs.
Stuart Evans, the Deputy Assistant Attorney General for Intelligence, replied that he couldn’t substantively discuss the definition of “foreign intelligence information” in an open hearing and pivoted to defending how the intelligence community identifies targets and then audits those identifications.
7:40 a.m. PDT - Sen. Amy Klobuchar pushed back on the intelligence officials’ testimony that Section 702 should be reauthorized without a sunset. That would give Congress “no leverage to get changes or to work on things,” she said, noting that Sen. Feinstein—who has historically defended the intelligence community—said she would oppose reauthorization without a sunset.
7:28 a.m. PDT - In response to questions from Sen. Feinstein, the panel of intelligence officials pushed back on the idea that Congress should codify the end of “about collection” under Upstream. Feinstein asked about the possibility of working with the NSA to draft a legislative amendment to bar about collection, and the panel of witnesses resoundingly answered that the intelligence community would oppose such an amendment.
The NSA’s Paul Morris told Feinstein that the NSA would like to keep open the possibility of restarting about collection if they can find a technical solution that minimizes the amount of unnecessary information about Americans obtained through about collection. “We think that, given enough time, we might be able to come up with a technical solution that addresses the [FISA] Court’s concern,” he said.
The fact that the NSA is already thinking ahead to restarting about collection makes it even more necessary that 702 reforms include codifying the end of about collection.
7:16 a.m. PDT - Paul Morris, NSA’s Deputy General Counsel, publicly discussed for the first time an example of the intelligence community using Section 702 to discover and take down a smartphone app. Without going into any more details, Morris said the agency obtained information in 2016 about the state-sponsored smartphone app and had it removed from app stores.
7:10 a.m. PDT - FBI National Security Branch Executive Assistant Director Carl Ghattas said that FBI only receives “raw” 702 communications if targeted selectors are relevant to an investigation but admits that FBI runs “significantly more” queries for US persons’ names than NSA.
6:58 a.m. PDT - ODNI Acting General Counsel Bradley Brooker repeated—almost verbatim—Director of National Intelligence Dan Coats’ excuses from earlier this month about why the intelligence community is failing to follow through on its promise to Congress to provide an accounting of the number of U.S. persons whose communications have been “incidentally” swept up through 702 surveillance. According to Brooker and Coats, it would be “unpalatable” to have the intelligence community divert resources from national security threats to conduct research into the individuals impacted by 702 surveillance to see if they’re U.S. persons.
As we’ve said before, we think it’s unpalatable for the intelligence community to ask Congress to reauthorize a law without giving them an understanding of how that law impacts their constituents. The fact that they’re hiding behind “privacy and civil liberties concerns” makes it even worse.
6:50 a.m. PDT - In her opening statement, Sen. Feinstein notably did not mention her call that 702 reauthorization legislation codify the end of “about collection,” or collection of communications that mention a foreign intelligence target’s email address or other identifier. About collection is a controversial and privacy-invasive technique that the NSA ended earlier this year. EFF and other privacy advocates see the codification of the end of “about collection” as a critical piece of any reform efforts. Feinstein did, however, briefly touch on her push to formalize the role of an outside counsel in the Foreign Intelligence Surveillance Court’s consideration of Section 702 annual certifications.
6:48 a.m. PDT - Senate Judiciary ranking member Dianne Feinstein—who is also a senior member of the Senate Intelligence Committee—started her opening statement with a jurisdiction grab, reminding her colleagues that while the Intelligence Committee has a head start on 702 reauthorization this year, the law is ultimately within the Judiciary Committee’s jurisdiction.
She specifically mentioned a new bill from Senate Intelligence Republicans, including ardent surveillance defender Sen. Tom Cotton, that would permanently reauthorize Section 702. Feinstein reiterated her opposition to the bill, saying “Congress has an important oversight role to play in these measures,” and that “the sunset allows us to review and revise” the law as technology changes.
6:42 a.m. PDT - Senate Judiciary Chairman Chuck Grassley opened the hearing with a rundown of recent terrorist attacks and praise of Section 702 surveillance as a counterterrorism tool. He overstated the oversight of 702 surveillance “by all three branches” of the government, but he did acknowledge concerns about the way innocent Americans’ communications are warrantlessly and “incidentally” collected under Section 702. Read Grassley’s full written opening statement here.
6:34 a.m. PDT - The hearing is starting now.