Solutions to Protect Privacy and Restore Appropriate Legal Protections
PPSA advocates reforms to protect our civil liberties from unjustified surveillance and unmasking. Examples include:
1. Annual Audits
Who watches the watchers?
Congress, charged with strenuous oversight of surveillance activities, instead relies on a constellation of inspectors general and reports from the Director of National Intelligence to monitor the activities of the National Security Agency (NSA), the Central Intelligence Agency (CIA), the Federal Bureau of Investigation (FBI), and other intelligence agencies. Revelations from Congressional oversight and recent news events suggest that such self-policing can be unreliable. Secret courts and secret programs should not be evaluated in secret by the same people who run them.
A better solution is to mandate that all surveillance programs be subject to an annual audit by the Government Accountability Office (GAO) for compliance with the Bill of Rights and governing statutes. The GAO should monitor:
The GAO would then issue a classified report to Congress, with an unclassified version for the American public.
Congress, charged with strenuous oversight of surveillance activities, instead relies on a constellation of inspectors general and reports from the Director of National Intelligence to monitor the activities of the National Security Agency (NSA), the Central Intelligence Agency (CIA), the Federal Bureau of Investigation (FBI), and other intelligence agencies. Revelations from Congressional oversight and recent news events suggest that such self-policing can be unreliable. Secret courts and secret programs should not be evaluated in secret by the same people who run them.
A better solution is to mandate that all surveillance programs be subject to an annual audit by the Government Accountability Office (GAO) for compliance with the Bill of Rights and governing statutes. The GAO should monitor:
- The number of surveilled communications involving a U.S. person, whether a citizen or a resident, including the number of surveilled communications exclusively between U.S. persons.
- The number of instances in which a U.S. person involved in surveilled communications was unmasked, the identities of officials who request unmaskings, and their asserted justifications for doing so.
- Any unmasking or warrantless surveillance of U.S. persons that could be deemed political.
- Any use of information obtained under FISA for law enforcement purposes or for “parallel construction” – that is, using those materials to reconstruct locations and activities of U.S. persons for crimes unrelated to national security and then seeking domestic warrants based on such fruits of undisclosed “foreign” surveillance of U.S. persons.
The GAO would then issue a classified report to Congress, with an unclassified version for the American public.
2. Notifications to Appropriate Persons Regarding Surveillance of the Staff and Associates of Political Candidates or Officeholders
We have seen concerns and suspicions raised by government surveillance of national candidate, transition or officeholder staff or associates were deemed potential foreign agents, whether knowingly or otherwise. We believe a good procedural precedent was set when Sen. Dianne Feinstein, D-CA, was privately notified that a long-term aide in her office might have been acting as a foreign agent. That precedent, unfortunately, was later ignored when the government before and after the 2016 election sought to surveil campaign staff and consultants of candidates seeking, but not yet holding, office.
In addition, FISA should be amended to require mandatory and contemporaneous notice of unmaskings to leaders of House and Senate intelligence committees, with appropriate safeguards for privacy and protection against leaks.
- When a surveillance warrant is deemed necessary for an official or consultant of a political campaign for office, or for the staff of a transition team or an officeholder, the office’s or campaign’s general counsel should be discreetly notified of the action by the FBI.
- When the general counsel is an investigative target, the candidate or office-holder should be notified. Should an intelligence agency seek a FISA warrant directed at a candidate or officeholder, the agency should be required to show probable cause before a Foreign Intelligence Surveillance Court (FISC) judge. The reviewing court should require the agency to notify a suitable member of the U.S. House or U.S. Senate intelligence committee from that candidate’s or officeholder’s political party.
In addition, FISA should be amended to require mandatory and contemporaneous notice of unmaskings to leaders of House and Senate intelligence committees, with appropriate safeguards for privacy and protection against leaks.
3. Keep Public Policy Positions Off Limits
With robust growth in surveillance and unmaskings continuing under Republican and Democratic administrations alike, Americans of all political leanings should be concerned about politically motivated surveillance of campaigns, transitions and officeholders. Taking a position on reforming intelligence agencies or the surveillance process, or making foreign policy proposals that differ from the positions of the current Executive Branch, should not trigger a surveillance order. FISA should be amended to provide that no public position taken by a campaign or officeholder about a legislative or other public policy issue can be used as justification for a FISA request, or otherwise as a basis for a surveillance order.
4. Special Advocate and Special Master Presentations before the Foreign Intelligence Surveillance Court (FISC)
FISA is managed by a secret court, the FISC, in which only the government is represented. FISC judges may request amicus curiae briefs with evaluations of surveillance requests from a small, select group of legal scholars with appropriate security clearances.
PPSA believes the current system, in which FISC judges arbitrarily seek the occasional outside opinion from legal scholars, is an incomplete and haphazard approach to bringing balance to secret, ex parte deliberations.
PPSA believes the current system, in which FISC judges arbitrarily seek the occasional outside opinion from legal scholars, is an incomplete and haphazard approach to bringing balance to secret, ex parte deliberations.
- FISA should be amended to set up an Office of the Special Advocate, staffed by qualified counsel with an appropriate level of security clearance, within FISC. All FISA surveillance requests or searches of prior surveillance data directed at communications with or among U.S. persons should be reviewed by the Special Advocate, who would have the authority to select cases in which to present adversarial arguments before FISC. Where a request for surveillance of communications with or among U.S. persons would not satisfy the “probable cause” standards for a traditional, domestic wiretap, Special Advocate participation would be mandatory.
- FISA should be amended to allow the Special Advocate, as well as the FISC on its own initiative, to make referrals to court-appointed Special Masters to vet technical claims by the Executive Branch that an instance of bulk and mass surveillance or overcollection of data is unavoidable or cannot be minimized.
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