Promise, but unaddressed Constitutional Concerns in Bipartisan Surveillance Reform Proposal
By Ben Yelin
In 2013, former NSA contractor Edward J. Snowden revealed a surveillance program that allows for the collection of the content of electronic communications under the authority of Section 702 of the FISA Amendments Act of 2008 (“702”). The program ostensibly targets non-U.S. persons located abroad who are have foreign intelligence value. However, due to some glaring loopholes in the way the program is administered, Section 702 authority also threatens the Fourth Amendment rights of American citizens and legal residents. The Chairman and Ranking Minority Member of the House Committee on the Judiciary, Reps. Goodlatte (R-VA) and Conyers (D-MI) have introduced a bill, “United and Strengthening Liberty Act of 2017” (“USA Liberty Act) to address some of these concerns. While the legislation is a major step forward in protecting Constitutional rights, it falls short in a number of key areas.
Section 702 was enacted as part of the FISA Amendments Act of 2008. It allows the government to compel the contents of someone’s electronic communications using two distinct methods. The government can collect information from U.S. internet service providers, like Google and Facebook, through a program called PRISM. Collection can include all different types of electronic communications: text messages, social media posts, video chats etc. The government can also intercept messages that travel across our internet backbone, a method referred to as “Upstream” collection. Upstream collection can also involve the content of telephone conversations, as well as all of the other types of communications listed above. 702 authority allows the government to compel this information if the target of their search is a non-U.S. person reasonably believed to be outside of the United States. While the Foreign Intelligence Surveillance Court (FISC) reviews the program annually to ensure that Federal agencies are properly complying with so-called minimization requirements (actions that intelligence officials must take to ensure against improper collect), no Article III court reviews or approves individual queries.
While the program is intended to collect the information of foreigners, its structure allows for the collection of U.S. citizens’ communications in a number of ways. Most notably, if the foreign intelligence target is communicating with a U.S. person, those communications can be collected incidentally. The Government can use those communications as evidence against the U.S. person in a future criminal proceeding. This amounts to a backdoor search of a person’s communications, because the government can review it without a warrant supported by probable cause, approved by a neutral magistrate. This runs afoul of our Fourth Amendment principle against unreasonable searches and seizures.
The program’s authority is set to expire on December 31, 2017, meaning that Congressional opponents and skeptics have leverage to demand significant changes to address these constitutional concerns. The Goodlatte-Conyers proposal contains many such changes. Most significantly, it would require federal law enforcement to obtain a warrant, based on probable cause, before accessing U.S. persons communications acquired under Section 702 authority. This would go a long way in solving the problem of backdoor, unconstitutional searches. The legislation also contains a many other important provisions:
- Prior to April of this year, the government also engaged in so-called “about collection.” If two U.S. persons simply mentioned a foreign target or his email address in an electronic communication, that communication would be subject to collection under Section 702. The NSA announced that so-called “about collection” would be discontinued, but Congress wants to codify this discontinuation by statute. The proposal would ban this type of collection through 2023.
- The bill also reforms “unmasking” procedures. Unmasking occurs when a government official privy to 702 collection reveals the identity of an American whose communications have been incidentally collection. This legislation would require officials to “document unmasking requests that are auditable to Congress and to certify that the unmasking requests are only made for legitimate reasons.” Unmasking become particularly controversial this year when former Obama Administration officials were accused of unmasking the identity of Trump campaign staff who had been communicating with overseas targets.
- The bill also allows for the appointment of amicus curiae to the FISA Court during annual certification proceedings. FISA Court hearings, by their very nature, are often one-sided. The subjects of the surveillance are not informed beforehand and thus cannot join in the proceedings. The appointment of amicus curiae would ensure that the interests of potential surveillance targets would have some sort of representation.
- The bill would compel the Director National Intelligence to release data on the actual number of Americans whose communications have been collected under 702 except if such a calculation is “not achievable.”
All of these provisions are welcome changes to curtail the most constitutionally problematic aspects of the 702 program. However, the proposed reforms fall short in some key areas. Though the bill would require probable cause before searching U.S. persons’ communications, it does not do so if the purpose of that search is foreign intelligence, and not law-enforcement related. Therefore, an American’s personal information would still be accessible to government agencies even absent any suspicion of wrongdoing. At a more basic level, the bill does not require probable cause determination, nor any judicial review, to conduct the initial query of the foreign intelligence target. Signals Intelligence agents are subject to minimization procedures limiting the scope of their searches, but they do not need approval from any judge. Of course, it is those initial queries that lead to the incidental collection of U.S. persons’ communications.
While the NSA and FBI have yet to release reliable numbers on how many U.S. persons’ communications are collected, we know that perhaps hundreds of thousands of messages, possibly containing private and personal information, are accessible to government agents for up to five years. Neema Singh Guliani, legislative counsel for the American Civil Liberties Union, noted that even with the proposed reforms, not fully closing the backdoor search loophole leaves citizens vulnerable to potential abuse. She writes “Those worried that current or future presidents will use Section 702 to spy on political opponents, surveil individuals based on false claims that their religion makes them a national security threat, or chill freedom of speech should be concerned that these reforms do not go far enough.”
Unlike other NSA surveillance programs (specifically the call-detail records program under Section 215 of the USA PATRIOT Act), the 702 program has been successful in thwarting terrorist plots, according to officials in both the Trump and Obama Administrations, as well as the Privacy and Civil Liberties Oversight Board. Generally, when Courts attempt to determine whether a particular search is reasonable under the Fourth Amendment, it will look to both the security interests and privacy interests involved and conduct a balancing test. Even if the security interests are strong, as they are with the 702 program, a program can still be unconstitutional if it unreasonably invades our privacy. While the Supreme Court has not weighed definitively on the constitutionality of the 702 program, it may have an opportunity to do so shortly. If 702 proponents, like those in the Trump Administration, want to ensure the program can continue, it behooves them to support strong privacy protections. The enactment of this bill would be a good start, but both Congress and the Administration should continue working to increase transparency, end all backdoor warrantless searches of U.S. persons’ data, and ensure that U.S. are not subject to unauthorized invasions of their personal privacy in the name of national security.