Privacy advocates want protections for US residents in foreign surveillance law

Congress should require warrants for agencies searching for US information in NSA databases, advocates say

Congress should limit the ability of the FBI and other agencies to search for information about U.S. residents in a database of foreign terrorism communications collected by the National Security Agency, privacy advocates say.

The Foreign Intelligence Surveillance Act (FISA) Amendments Act, which allows the NSA to collect foreign Internet communications, expires in late 2017, and Congress should require that the communications of U.S. residents swept up in the controversial Prism and Upstream programs be protected with court-ordered warrants, privacy advocates told a Senate committee Tuesday.

The FBI can search the NSA database and look for information about U.S. residents without getting a court order. It's time for those searches to be limited, with a court-ordered warrant required before they happen, said Elizabeth Goitein, co-director of the Liberty and National Security Program in the Brennan Center for Justice at the New York University School of Law.

The amount of information collected by the NSA about U.S. residents "has exploded," and violates their Fourth Amendment rights against unreasonable searches and seizures, Goitein told the Senate Judiciary Committee. 

Section 702 of the FISA Amendments Act allows the NSA to intercept communications of any non-U.S. resident suspected of having valuable intelligence information, including information about terrorism plots. The law doesn't allow the NSA to target U.S. residents, but it's likely that the communications of millions of Americans get swept up in the NSA surveillance programs when they communicate with someone overseas.

Five years after Senator Ron Wyden, an Oregon Democrat, asked the NSA to account for how much intelligence on U.S. residents it collects under Section 702 programs, the agency has not yet released numbers, Goiten noted. 

The NSA collections of an estimated 250 million Internet communications a year "undoubtedly includes millions, if not tens of millions, of Americans' emails," she said.

The NSA has to promise the Foreign Intelligence Surveillance Court that it is targeting foreign, not U.S., residents with its Section 702 surveillance programs. Despite that requirement, the NSA and the FBI can still search the database for U.S. residents' communications, Goiten said.

"This is a bait and switch that undermines" legal prohibitions against targeting U.S. residents, she added.

The Senate Judiciary Committee's hearing was intended as a head start on discussions about renewing the FISA Amendments Act before it expires in December 2017. There was no discussion during the hearing about letting the law expire, and there was little discussion about limiting what overseas communications the NSA can collect.

Goiten asked Congress to limit the NSA surveillance to terrorism-related suspects, instead of allowing the agency to target any non-U.S. resident with possible intelligence information. But most of the discussion centered on the so-called "incidental" collection U.S. residents' communications.

While Goiten and David Medine, chairman of the U.S. Privacy and Civil Liberties Oversight Board, called on Congress to rein in the NSA collection and search of U.S. communications, other witnesses and some senators praised the NSA programs.

The NSA surveillance programs have helped thwart dozens of terrorism plots, including some in the U.S., said Matthew Olsen, president of consulting for IronNet Cybersecurity and former director of the National Counterterrorism Center.

The surveillance programs are "vital to our security," Olsen said. "Beyond the United States, Section 702 surveillance has proven to be an invaluable tool in supporting the counterterrorism efforts of our allies around the world."

The programs allow the U.S. government to "obtain critical intelligence about terrorists and other targets that it simply could not obtain by other means," Olsen added.

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