In a win for surveillance reform advocates, the House Rules Committee agreed this week to allow an amendment aimed at curbing the government’s unconstitutional backdoor surveillance of Americans to proceed to a vote by the full House. This bipartisan amendment, co-sponsored by several representatives, including Reps. Zoe Lofgren (D-CA) and Thomas Massie (R-KY), represents one of the most tangible attempts in recent years to rein in warrantless government surveillance.
PPSA had hoped for a vote this week, but Congress did what it does best – delay. Now civil libertarians foresee a likely vote when the amendment to the Commerce, Justice and Science appropriations bill is considered after Congress returns from its August recess.
The Lofgren-Massie Amendment would prohibit funding for “backdoor searches” of the communications – calls and emails – of Americans “incidentally” caught up in surveillance of foreign targets. PPSA has supported this amendment from the beginning and recently joined 27 other civil liberties groups in signing a letter urging Congress to pass it. This is an opportunity to protect the rights of all Americans that Congress simply cannot miss.
Section 702 of the Foreign Intelligence Surveillance Act (FISA) has long provided a loophole for the government to search through the communications of Americans without a warrant. FISA gives the government wide latitude to collect information for foreign intelligence purposes in which the collection of Americans’ communications is inevitable. In practice, thousands of Americans have been subjected to warrantless surveillance simply by communicating with a foreigner. The Federal Bureau of Investigation and the National Security Agency have been so lax in the surveillance of U.S. citizens (and other “U.S. persons”) that they were publicly rebuked by the FISA court for repeatedly ignoring court orders and the law.
While the letter of the law states the purpose of 702 collection is foreign intelligence, it is becoming increasingly clear that “incidental collection” is often a primary purpose of the surveillance. Sharon Bradford Franklin of the Center for Democracy and Technology explains how this works:
Current law permits the government in most cases to search through the communications collected under Section 702 to seek information about a particular U.S. person without obtaining a warrant or any other type of court approval. The government calls this practice conducting a ‘U.S. person query,’ since they are searching through or ‘querying’ collected 702 data using an identifier associated with a particular U.S. person.
The NSA’s querying procedures permit the agency to conduct such queries provided that personnel have submitted a statement of facts showing that use of the U.S. person identifier as a selection term is ‘reasonably likely to retrieve foreign intelligence information,’ and the NSA’s General Counsel has approved the use of that U.S. identifier for queries. Many civil liberties advocates appropriately refer to this practice as conducting a backdoor search, because no warrant or other judicial approval is required either at the ‘front end’ when the communications are collected, or prior to searching through collected information using the U.S. person identifier. Although Congress added a requirement in 2018 for the FBI to seek court approval in a small subset of cases, this rule does not cover the vast majority of circumstances in which the FBI actually conducts U.S. person queries at the assessment state.
The most recent estimate of the number of such backdoor searches by the Office of the Director of National Intelligence shows that the NSA in 2020 conducted such searches for the contents of communications more than 7,000 times, and 9,000 in each of the prior years. In a move worthy of a Hollywood accountant, this is likely an undercount as current FBI rules for example only require the agency to disclose certain queries for oversight purposes.
Despite its genuine original purpose of collecting solely foreign intelligence, Section 702 has unquestionably become a way for federal law enforcement to avoid the Fourth Amendment and the requirement for probable cause and a warrant.
PPSA will be alert and active over the summer in urging our supporters to tell Congress that it must pass the Lofgren-Massie Amendment and end these unconstitutional backdoor searches of U.S. citizens.