The unanimous passage of the Fourth Amendment Is Not for Sale Act by the House Judiciary Committee, as well as the expiration of Section 702 of the Foreign Intelligence Surveillance Act, is spurring the National Security Agency into a furious lobbying campaign of the public and Congress to stop surveillance reform.
NSA lobbyists argue that it would be hobbled by the House measure, which would require agencies to obtain a probable cause warrant before purchasing Americans’ private data. Former intelligence community leaders are also making public statements, arguing that passage of Section 702 of the Foreign Intelligence Surveillance Act (FISA) with any meaningful changes or reforms would simply be too dangerous.
George Croner, former NSA lawyer, is one of the most active advocates of the government’s “nothing to see here, folks” position.
In March, Croner portrayed proposals for a full warrant requirement as a new and radical idea. He quoted two writers that concern over warrantless, backdoor searches is a concern of “panicky civil libertarians” and right-wing conspiracy theorists. In a piece this week, Croner co-authored a broadside against the ACLU’s analysis of the NSA’s and FBI’s mass surveillance.
For example, Croner asserts that civil liberties critics are severely undercounting great progress the FBI has made in in reducing U.S. person queries, a process in which agents use the names, addresses, or telephone numbers of Americans to extract their private communications. Croner celebrates a 96 percent reduction in such queries in 2022 as a result of process improvements within the FBI.
But, to paraphrase the late, great Henny Youngman, 96 percent of what? Ninety-six percent of a trillion data points? A quadrillion? The government’s numbers are murky and ever-changing, but the remaining amount appears, at the very least if you take these numbers at face value, to constitute well over 200,000 warrantless searches of Americans.
Elizabeth Goitein of the Brennan Center for Justice, who has placed her third installment in a series on Section 702 in the online outlet Just Security – a masterclass on that program and why it must be reformed – has her own responses to Croner. While Croner portrays a warrant requirement for reviewing Americans’ data as a dangerous proposal, Goitein sees such a requirement as way to curb “backdoor searches,” and return to the guarantees of the Fourth Amendment.
“For nearly a decade, advocates, experts, and lawmakers have coalesced around a backdoor search solution that would require a warrant for all U.S. person queries conducted by any U.S. agency. Indeed, some broadly supported proposals have gone even further and restricted the type of information the government could obtain even with a warrant.”
She describes a Review Group on Intelligence and Communications Technologies that included many, like former CIA acting director Michael J. Morrell, who are anything but panicky civil libertarians. This group nevertheless found it responsible to recommend warrants “based on probable cause” before surveilling a United States person. Other supporters of probable cause warrants range from Rep. Thomas Massie (R-KY) and Zoe Lofgren (D-CA), to Sens. Dianne Feinstein (D-CA), Mike Lee (R-UT), and former Sen. Kamala Harris (D-CA).
They all saw what Goitein describes:
“Without such a measure, Section 702 will continue to serve as an end-run around the protections of the Fourth Amendment and FISA, and the worst abuses of the power to conduct U.S. queries will continue.”
We eagerly await ACLU’s response to Croner’s critique. Such debates, online and perhaps in person, are the only way to winnow out who is being candid and who is being too clever by half. It is a healthy development for intelligence and civil libertarian communities to debate their clashing views before the American people and the Congress rather than leave the whole discussion to secret briefings on Capitol Hill.