Debate looms on US electronic surveillance law

 

Washington, USA

A measure granting the government expansive power to intercept electronic communications in the United States without a warrant is set to expire this month, setting up a sharp debate in the Senate over how to balance privacy against national security.

The government uses the measure, contained in a law known as the FISA Amendments Act, to intercept e-mails and telephone calls of foreigners located overseas under a blanket approval issued once a year by a special court. But communications of U.S. citizens talking with the foreigners also are being scooped up.

The intelligence community argues that the measure is essential to protect against foreign threats and has made renewing the law its top legislative priority. The House approved a five-year extension in September by a vote of 301 to 118. The Senate must vote by the end of the year or the authority expires.

Opposition has surfaced among a small, bipartisan group of senators worried that Americans engaged in harmless communications with foreigners could be monitored without a warrant or other privacy protections.

Under the law, a special court whose proceedings are secret issues a yearly certification that permits the government to monitor the e-mails and phone calls of foreigners if the government can satisfy the court that its procedures will target people located overseas and ensure the privacy of U.S. citizens caught in the monitoring. Targeting the communications of a U.S. citizen or anyone inside the United States requires a warrant.

One of the complaints of the senators and civil liberties advocates is that the government refuses to disclose the number of U.S. citizens and residents whose communications have been collected or reviewed under the law.

"You have this potentially large pile of communications and nobody knows how many Americans are in that pile," Sen. Ron Wyden, D-Ore., a member of the Senate Intelligence Committee, said in an interview.

Wyden has threatened to block a vote on reauthorization unless Senate leaders agree to a debate on changes that would add safeguards for U.S. persons.

Twelve other senators, including conservative Sen. Mike Lee, R-Utah, have joined Wyden in pushing to require the government to provide an estimate of how many communications involving U.S. citizens have been collected under Section 702 of the statute. The senators also want the government to obtain a court-approved warrant before deliberately searching electronic data for individual Americans.

"The government ought not be able to search through that database for information about a U.S. citizen without a court order because that becomes akin to a warrantless wiretap," Lee said in an interview.

The law was passed in 2008 as an update to the 1978 Foreign Intelligence Surveillance Act. It expanded the government's power to conduct electronic surveillance on U.S. soil for foreign targets overseas without individual warrants.

The Obama administration, like the George W. Bush administration, has defended the program as vital to gathering quickly information about the plans and identities of terrorists and other threats.

"There is no question that we've gotten valuable information that has led to intelligence and national security successes," said Robert Litt, general counsel for the Office of the Director of National Intelligence, in a press call this year. "This would really create a risk for our security if we lost this capability." He cited "specific incidents both involving terrorist attacks and other kinds of threats where we have been able to thwart them or gain insight into them as a result of this collection activity," but he declined to elaborate.

Litt said estimating the number of communications by U.S. citizens collected "incidentally" under FISA cannot be done with any degree of accuracy. But he said the law is not "a tool for spying on Americans."

Jameel Jaffer, American Civil Liberties Union deputy legal director, countered that the law provides the government with too much leeway. "It's a law that gives the government almost unchecked power to monitor Americans' communications," he said in an interview. "It's indefensible that anyone's even thinking about reauthorizing it without asking questions about the law's use."

The ACLU sued the government over the law's constitutionality. A federal judge threw out the suit, saying the plaintiffs lacked standing, but the U.S. Court of Appeals for the 2nd Circuit reinstated it. The case was argued in October before the Supreme Court, which is considering only whether the plaintiffs have standing to proceed with their challenge.

The procedures involved in monitoring foreign communications remain largely hidden. Officials in the communications industry said the government gives companies the e-mail addresses, phone numbers, user names and other identifiers of foreign targets to tap.

The lists could run to dozens or hundreds of identities, said the officials, who spoke on the condition of anonymity to discuss sensitive details. The companies divert electronic copies of the communications in real time to a special FBI facility in Northern Virginia. In the case of e-mail, the government may receive virtual replicas of people's entire in-boxes, the officials said.

The National Security Agency stores the data for translation and analysis. Automated tools help analysts find links in the communications among, say, the e-mails of five members of a suspected terrorist cell.

"Some sniffer is looking for similarities among their contacts," said a former federal official, who spoke on the condition of anonymity because of the topic's sensitivity. "If all five are talking to a sixth, that sixth is going to be a person of interest."

The law allows collection of communications across a broad spectrum of "foreign intelligence" topics and threats, which include nuclear proliferation, foreign diplomats and extremist groups. Critics say the wide range increases the chances that Americans who are not targets of surveillance will have their communications picked up.

Intelligence officials say a warrant requirement would be burdensome and unnecessary, given that the information has been lawfully collected. They note that they have regularly briefed Congress on the program's operations.

Their reports to Congress have identified no cases of intentional or systematic misuse, according to a Senate Judiciary Committee review. But Wyden said the special court has already found that the government's efforts to protect the privacy of U.S. citizens failed on at least one occasion.

Start your day with The Independent, sign up for daily news emails
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksAn introduction to the ground rules of British democracy
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Recruitment Genius: Massage Therapist / Sports Therapist / Physio / Osteopath

£12000 - £24000 per annum: Recruitment Genius: An opportunity has arisen for o...

Recruitment Genius: Account Manager / Sales Executive - Contract Hire

£35000 - £60000 per annum: Recruitment Genius: This industry leader provides c...

Recruitment Genius: Project Coordinator

£28000 - £30000 per annum: Recruitment Genius: A Project Coordinator is requir...

Recruitment Genius: Area Sales Manager - Midlands

£20000 - £25000 per annum: Recruitment Genius: This is an exciting opportunity...

Day In a Page

John Palmer: 'Goldfinger' of British crime was murdered, say police

Murder of the Brink’s-MAT mastermind

'Goldfinger' of British crime's life ended in a blaze of bullets, say police
Forget little green men - aliens will look like humans, says Cambridge University evolution expert

Forget little green men

Leading evolutionary biologist says aliens will look like humans
The Real Stories of Migrant Britain: An Algerian scientist adjusts to life working in a kebab shop

The Real Stories of Migrant Britain

An Algerian scientist struggles to adjust to her new life working in a Scottish kebab shop
Bodyworlds museum: Dr Gunther von Hagens has battled legal threats, Parkinson's disease, and the threat of bankruptcy

Dying dream of Doctor Death

Dr Gunther von Hagens has battled legal threats, Parkinson's disease, and the threat of bankruptcy
UK heatwave: Temperature reaches 39.8 degrees on Central Line - the sweatiest place in London

39.8 degrees recorded on Tube

There's hot (London) and too damn hot (the Underground). Simon Usborne braved the Central line to discover what its passengers suffer
Kitchens go hi-tech: From robot chefs to recipe-shopping apps, computerised cooking is coming

Computerised cooking is coming

From apps that automatically make shopping lists from your recipe books to smart ovens and robot chefs, Kevin Maney rounds up innovations to make your mouth water
Jessie Cave interview: The Harry Potter star has published a feminist collection of cartoons

Jessie Cave's feminist cartoons

The Harry Potter star tells Alice Jones how a one-night stand changed her life
Football Beyond Borders: Even the most distruptive pupils score at homework club

Education: Football Beyond Borders

Add football to an after-school homework club, and even the naughtiest boys can score
10 best barbecue books

Fire up the barbie: 10 best barbecue books

We've got Bibles to get you grilling and smoking like a true south American pro
Wimbledon 2015: Nick Bollettieri - Junk balls and chop and slice are only way 5ft 1in Kurumi Nara can live with Petra Kvitova’s power

Nick Bollettieri's Wimbledon Files

Junk balls and chop and slice are only way 5ft 1in Kurumi Nara can live with Petra Kvitova’s power
Ron Dennis exclusive: ‘This is one of the best McLaren teams ever – we are going to do it’

‘This is one of the best McLaren teams ever – we are going to do it’

Ron Dennis shrugs off a poor start to the season in an exclusive interview, and says the glory days will come back
Seifeddine Rezgui: What motivated a shy student to kill 38 holidaymakers in Tunisia?

Making of a killer

What motivated a shy student to kill 38 holidaymakers in Tunisia?
UK Heatwave: Temperatures on the tube are going to exceed the legal limit for transporting cattle

Just when you thought your commute couldn't get any worse...

Heatwave will see temperatures on the Tube exceed legal limit for transporting cattle
Exclusive - The Real Stories of Migrant Britain: Swapping Bucharest for London

The Real Stories of Migrant Britain

Meet the man who swapped Romania for the UK in a bid to provide for his family, only to discover that the home he left behind wasn't quite what it seemed
Cheaper energy on the way, but it's not all sunshine and rainbows

Cheaper energy on the way, but it's not all sunshine and rainbows

Solar power will help bring down electricity prices over the next five years, according to a new report. But it’s cheap imports of ‘dirty power’ that will lower them the most