Privacy Concerns Persist in FISA Reauthorization Debate

Wyden passionately stumped for his amendment, which he said would bring more transparency and oversight over intelligence gathering that may inadvertently ensnare domestic communications. Wyden’s amendment would require the director of national intelligence to offer a report with any existing estimates of how many Americans’ communications have been monitored under the law. Without such information, Wyden said, the Senate has “toothless oversight” over intelligence activities authorized under the Act because intelligence officials have refused to disclose the extent of its communications surveillance activities. “We want to know whether the government has taken advantage of this warrantless loophole,” he said in a speech on the Senate floor, and the amendment would “get information that is essential to pass the smell test when it comes to this body doing basic oversight.” Wyden’s amendment would also clarify the law to ensure that intelligence agencies are prohibited from collecting the communications of Americans without a warrant.

In September, the House passed a five-year reauthorization of the Amendments Act, authored by House Judiciary Committee Chairman Lamar Smith, R-Texas. The Senate bill (S-3276) languished after revelations that the government had abused its powers. Government officials acknowledged in a July letter to Wyden that NSA surveillance had gone further than is permitted by FISA (CD Aug 31 p1) OR (WID Aug 31 p4).

Senate Judiciary Committee Chairman Pat Leahy, D-Vt., offered a committee-approved bill that would limit the term of the Act’s reauthorization from five years to three years, and expand the oversight authorities of the inspector general, among other provisions. Sen. Jeff Merkley, D-Ore., offered an amendment that would create a framework to declassify the court opinions of the FISA court, the 11-member panel that interprets FAA. Sen. Rand Paul, R-Ky., offered an amendment called the Fourth Amendment Protection Act which would clarify that all U.S. communications sought by intelligence agencies have Fourth Amendment protections, even if they are held by third-party providers like ISPs or Web services.

Feinstein urged lawmakers to vote against all of the amendments, stressing the limited time frame Congress has to pass the legislation before it adjourns. She said there’s no need for better oversight because the government implements the FAA “in a responsible manner with relatively few incidents of non-compliance.” Furthermore, there has not been a single case in which a government official “engaged in a willful effort to circumvent and violate the law,” she said in a speech on the Senate floor. FISA surveillance has prevented terrorist plots against America and has assisted federal agents in making 100 arrests between 2009 and 2012, she said. Wyden said a vote on the amendments to the bill is crucial to “strike the best possible balance between security and liberty,” and said he was confident the House would be able to pass the amended bill before the end of the session.

Separately, the Electronic Frontier Foundation said in a blog post Thursday that “any Senator who wants to stay true to the Constitution” should not vote to reauthorize the bill. The privacy group said the law is “dangerous” because it “allows the government to get secret FISA court orders -- orders that do not require probable cause like regular warrants -— for any emails or phone calls going to and from overseas.” The group also objected to the law’s definition of “foreign intelligence information,” which it called “a broad term that can mean virtually anything.” Furthermore, FISA orders can be issued against groups or categories of people, the group said, which could affect “hundreds of thousands of Americans at once.”