Wyden Places Hold on FISA Amendments Act Extension

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Warns that Loophole Gives Government the Ability to Circumvent Warrant Requirements to Spy on U.S. Citizens

U.S. Senator Ron Wyden, a senior member of the Senate Select Committee on Intelligence (SSCI), announced that he will block unanimous consent requests to pass a five-year extension of the FISA Amendments Act of 2008 (FAA).

America’s Foreign Intelligence Surveillance Act of 1978, enacted October 25, 1978, is an Act of Congress, (signed by President Jimmy Carter), which prescribes procedures for the physical and electronic surveillance and collection of “foreign intelligence information” between “foreign powers” and “agents of foreign powers” (which may include American citizens and permanent residents suspected of being engaged in espionage and violating U.S. law on territory under United States control).

Warrantless wiretapping by the National Security Agency (NSA) was revealed publicly in late 2005 by The New York Times and then discontinued in January 2007. Approximately forty lawsuits have been filed against telecommunications companies by groups and individuals alleging that the Bush administration illegally monitored their phone calls or e-mails. Whistleblower evidence suggests that AT&T was complicit in the NSA’s warrantless surveillance, which could have involved the private communications of millions of Americans.

The Foreign Intelligence Surveillance Act makes it illegal to intentionally engage in electronic surveillance under appearance of an official act or to disclose or use information obtained by electronic surveillance under appearance of an official act knowing that it was not authorized by statute; this is punishable with a fine of up to $10,000 or up to five years in prison, or both.

In addition, the Wiretap Act prohibits any person from illegally intercepting, disclosing, using or divulging phone calls or electronic communications; this is punishable with a fine or up to five years in prison, or both.

The FISA Amendments Act also added a new Title VII to FISA which contained provisions similar, but not identical, to provisions in the Protect America Act of 2007 which had expired earlier in 2008. The new provisions in Title VII of FISA are scheduled to expire on December 31, 2012.

Wyden identified two specific concerns that he believes Congress must address before agreeing to a long-term extension of FAA’s authorities.

The first pertains to the lack of information regarding the number of law-abiding American citizens who have had their communications collected and reviewed under the FISA Amendments Act authorities.  Last summer, he and Senator Mark Udall asked the Administration for an estimate of the “number of people located in the United States whose communications were reviewed by the government pursuant to the FISA Amendments Act.”  The Office of the Director of National Intelligence responded that it was “not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority of the FAA.”  Nearly a year later, Congress has yet to receive an estimate of the number of Americans who have had their communications collected under FAA.

The purpose of this 2008 legislation was to give the government new authorities to collect the communications of people who are believed to be foreigners outside the United States, while still preserving the privacy of people inside the United States,” Wyden explains in his hold statement.  “Before Congress votes to renew these authorities it is important to understand how they are working in practice.  In particular, it is important for Congress to better understand how many people inside the United States have had their communications collected or reviewed under the authorities granted by the FISA Amendments Act.”

Wyden’s second concern pertains to what he describes as the law’s inadequate protections against warrantless “back door” searches of Americans.  

“I am concerned, of course, that if no one has even estimated how many Americans have had their communications collected under the FISA Amendments Act,” Wyden writes. “Then it is possible that this number could be quite large.  Since all of the communications collected by the government under section 702 are collected without individual warrants, I believe that there should be clear rules prohibiting the government from searching through these communications in an effort to find the phone calls or emails of a particular American, unless the government has obtained a warrant or emergency authorization permitting surveillance of that American.”

Wyden and U.S. Senator Mark Udall (D-Colo.) offered an amendment during the Intelligence Committee’s markup of the FISA Amendments Act extension to prohibit warrantless searches for Americans’ communications.  After this amendment was defeated Wyden and Udall announced that they would keep working to enact protections against “back door searches” of this nature.  You can read their additional remarks here:  http://intelligence.senate.gov/pdfs112th/112174.pdf

A two-and-a-half year extension of the FISA Amendments Act was previously included in a version of the Fiscal Year 2012 Intelligence Authorization bill, but was removed in response to Senator Wyden’s objections.

Below is the hold statement Senator Wyden filed in the Congressional Record:

M. President, the Select Committee on Intelligence has just reported a bill that would extend the FISA Amendments Act of 2008 for five more years.  I voted against this extension in the Intelligence Committee’s markup because I believe that Congress does not have enough information about this law’s impact on the privacy of law-abiding American citizens, and because I am concerned about a loophole in the law that could allow the government to effectively conduct warrantless searches for Americans’ communications.  Consistent with my own long-standing policy and Senate rules, I am announcing with this statement for the Congressional Record that it is my intention to object to any request to pass this bill by unanimous consent.  

I will also explain my reasoning a bit further, in case it is helpful to any colleagues who are less familiar with this issue.  Over a decade ago the intelligence community identified a problem:  surveillance laws designed to protect the privacy of people inside the United States were sometimes making it hard to collect the communications of people outside the United States.  The Bush Administration’s solution to this problem was to set up a warrantless wiretapping program, which operated in secret for a number of years.  When this program became public several years ago many Americans – myself included – were shocked and appalled.  Many members of Congress denounced the Bush Administration for this illegal and unconstitutional act.  

However, members of Congress also wanted to address the original problem that had been identified, so in 2008 Congress passed a law modifying the Foreign Intelligence Surveillance Act, or FISA.  The purpose of this 2008 legislation was to give the government new authorities to collect the communications of people who are believed to be foreigners outside the United States, while still preserving the privacy of people inside the United States.  

Specifically, the central provision in the FISA Amendments Act of 2008 added a new section to the original FISA statute, now known as section 702.  As I said, section 702 was designed to give the government new authorities to collect the communications of people who are reasonably believed to be foreigners outside the United States.  Because section 702 does not involve obtaining individual warrants, it contains language specifically intended to limit the government’s ability to use these new authorities to deliberately spy on American citizens.

The bill contained an expiration date of December 2012, and the purpose of this expiration date was to force members of Congress to come back in a few years and examine whether these new authorities had been interpreted and implemented as intended.  Before Congress votes this year to renew these authorities it is important to understand how they are working in practice, so that members of Congress can decide whether the law needs to be modified or reformed.  
In particular, it is important for Congress to better understand how many people inside the United States have had their communications collected or reviewed under the authorities granted by the FISA Amendments Act.  If only a handful of people inside the United States have been surveilled in this manner, then that would indicate that Americans’ privacy is being protected.  On the other hand, if a large number of people inside the United States have had their communications collected or reviewed because of this law, then that would suggest that protections for Americans’ privacy need to be strengthened.  

Unfortunately, while Senator Udall of Colorado and I have sought repeatedly to gain an understanding of how many Americans have had their phone calls or emails collected and reviewed under this statute, we have not been able to obtain even a rough estimate of this number.  

The Office of the Director of National Intelligence told the two of us in July 2011 that “it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed” under the FISA Amendments Act.  I am prepared to accept that it might be difficult to come up with an exact count of this number, but it is hard for me to believe that it is impossible to even estimate it.  

During the committee’s markup of this bill Senator Udall and I offered an amendment that would have directed the Inspectors General of the Intelligence Community and the Department of Justice to produce an estimate of how many Americans have had their communications collected under section 702.  Our amendment would have permitted the Inspectors General to come up with a rough estimate of this number, using whatever analytical techniques they deemed appropriate.  We are disappointed that this amendment was voted down by the committee, but we will continue our efforts to obtain this information.

I am concerned, of course, that if no one has even estimated how many Americans have had their communications collected under the FISA Amendments Act, then it is possible that this number could be quite large.  Since all of the communications collected by the government under section 702 are collected without individual warrants, I believe that there should be clear rules prohibiting the government from searching through these communications in an effort to find the phone calls or emails of a particular American, unless the government has obtained a warrant or emergency authorization permitting surveillance of that American.  

Section 702, as it is currently written, does not contain adequate protections against warrantless “back door” searches of this nature – even though they are the very thing that many people thought the FISA Amendments Act was intended to prevent.  Senator Udall and I offered an amendment during the committee’s markup of this bill that would have clarified the law to prohibit searching through communications collected under section 702 in an effort to find a particular American’s communications.  Our amendment included exceptions for searches that involved a warrant or an emergency authorization, as well as for searches for the phone calls or emails of people who are believed to be in danger or who consent to the search.  I am disappointed that this amendment was also voted down by the committee, but I will continue to work with my colleagues to find a way to close this loophole before the FISA Amendments Act is extended.  

I recognize that the collection that has taken place under the FISA Amendments Act has produced some useful intelligence, so my preference would be to enact a short-term reauthorization to give Congress time to get more information about the impact of this law on Americans’ privacy rights and consider possible modifications.  However, I believe that protections against warrantless searches for Americans’ communications should be added to the law immediately.  

An obvious question that I have not answered here is whether any warrantless searches for Americans’ communications have already taken place.  I am not suggesting that any warrantless searches have or have not occurred, because Senate and committee rules regarding classified information generally prohibit me from discussing what intelligence agencies are actually doing or not doing.  However, I believe that we have an obligation as elected legislators to discuss what these agencies should or should not be doing, and it is my hope that a majority of my Senate colleagues will agree with that searching for Americans’ phone calls and emails without a warrant is something that these agencies should not do.

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