The U.S. intelligence community likes to say its spying programs are subject to “rigorous” oversight from the courts, government watchdogs, and Congress.
But each of those forms of oversight has obstacles keeping overseers from getting the full picture when it comes to the sweeping and warrantless Internet surveillance under Section 702, a surveillance law enacted as part of the FISA Amendments Act in 2008 and expiring at the end of the year.
The most commonly cited point of oversight for surveillance under Section 702 is the Foreign Intelligence Surveillance Court (FISC), which is, in theory, responsible for acting as a neutral and detached reviewer of the U.S. government’s foreign intelligence collection. But when it comes to Section 702 surveillance, the court actually reviews very little about the program. For instance, the FISC signs off on kinds of “selectors”—the identifiers the intelligence community uses to search communications to and from foreign intelligence targets under 702—but not the actual selectors. That’s in contrast to a traditional warrant application process, in which a court reviews the government’s evidence for conducting a search tied to a specific person, place, or thing. So under Section 702, there is no specific court approval necessary if the NSA wants to collect all emails to and from email@example.com, even emails sent between that address and people inside the United States.
Meanwhile, other courts rarely get to consider the fundamental questions about Section 702 surveillance, including whether it violates Americans’ Fourth Amendment protections. The U.S. government has a host of tricks it can use to avoid ever telling these courts—or people the government is prosecuting based on warrantless surveillance—about how it uses Section 702.
As an example, the government can argue that the way it obtains certain evidence is a classified state secret and therefore can’t be discussed in court. Once the government has discovered evidence using Section 702 surveillance, it can find other ways to get that evidence so that it never has to admit that it used surveillance under Section 702. And it can argue—and has argued for years—that people can’t challenge Section 702 surveillance in court because they have no way to prove they were spied on using Section 702.
The intelligence community also points to the Privacy and Civil Liberties Oversight Board. While the name implies that it conducts oversight, the board is now essentially inactive and has historically shied away from tackling some of the toughest questions about surveillance under Section 702.
In a legally flawed report on the surveillance authority in 2014, the board’s analysis focused on what the NSA does to filter and search through the information it collects under Section 702’s “upstream” surveillance. It entirely ignored the fact that, to collect that information in the first place, the NSA copies huge swaths of Internet traffic and searches through millions of communications of innocent people.
The report also skimmed over the Fourth Amendment’s prohibition on unreasonable searches in the context of Section 702 surveillance and laid out bare-bones reform recommendations, including merely asking the NSA to study the issue.
In practice, Congress also has a limited ability to conduct meaningful oversight. Lawmakers and their staffers are rarely allowed to have open debates about the interpretations, use, and impact of surveillance authority.
In the wake of Edward Snowden’s leaks in 2013, lawmakers were shocked to learn that surveillance authorities in the Patriot Act—the surveillance law rushed into law immediately following the attacks on September 11, 2001—were being used to collect Americans’ phone records en masse and had been for more than a decade. The author of the Patriot Act himself called the news “very surprising.”
Now that Congress has started to debate whether and how to reauthorize Section 702, the intelligence community is trying to obscure the impact of the law. Despite repeated requests from lawmakers, Director of National Intelligence Dan Coats said his office will not produce an estimate of how many Americans’ communications are collected under Section 702 surveillance, depriving lawmakers of the chance to see how this law affects their own constituents.
On top of that, some lawmakers want to eliminate what meaningful oversight work Congress can do. Sen. Tom Cotton and a handful of other Senate Republicans recently introduced legislation that would make Section 702 permanent, stripping lawmakers of their obligation to periodically review and make changes to the law.
On one hand, the intelligence community and its defenders say its warrantless, sweeping surveillance programs are subject to rigorous oversight. On the other hand, they want to eliminate a huge element of that oversight.
If we want to have a better informed and more transparent debate over warrantless surveillance of innocent Americans, we need more oversight, not less.