This week, the Senate is expected to vote on extension of the FISA Amendments Act (FAA). This is the law that was passed in 2008 to legalize a form of the National Security Agency's (NSA) warrantless wiretapping program. Unless Congress renews it, it will expire on December 31.
Under the FAA, the government may legally conduct broad scale foreign intelligence surveillance without obtaining any warrant, not even one from the secret Foreign Intelligence Surveillance Court (FISC). Without any warrant requirement, the judicial review that the FISC must conduct under the FAA is minimal. The FAA only requires that foreign intelligence be a "significant purpose" of broad based surveillance programs. Moreover, rather than requiring any showing of individualized suspicion, the law allows the court to approve surveillance programs that target entire categories of people. To obtain FISC approval for monitoring of communications like phone calls and emails, the government need only provide the FISC with a description of the "targeting" and "minimization" procedures it will employ to reduce the number of U.S. persons (citizens and legal residents) whose communications are intercepted and minimize the amount of data which is stored unnecessarily. With this type of limited judicial review, the FISC may approve surveillance of broad categories of targets for a year at a time.
This past fall, The Constitution Project's Liberty and Security Committee released a Report on the FISA Amendments Act of 2008, urging a variety of reforms to the law in order to ensure that the FAA surveillance program incorporates strong privacy safeguards to avoid intrusions on Fourth Amendment rights. In its current form, the FAA simply requires that surveillance conducted under this authority must be targeted at non-U.S. persons who are located abroad; the government cannot deliberately target the communications of American citizens, legal U.S. residents, or individuals known to be located within the United States. However, as long as the target is a non-U.S. person located abroad, nothing in the law prevents the collection of communications where an American or someone located in the United States is on the other end of the conversation. As noted above, only minimal judicial review is required before conducting FAA surveillance, and once the government has collected such communications, there are almost no limits on how it may use this database of information. The government maintains that so long as the data are collected legally under the FAA authority, government agents may later use any communications involving Americans for any lawful purpose. This means that information about Americans obtained through warrantless surveillance under the FAA can later be used in criminal prosecutions against Americans even though the government was never required to obtain a warrant.
In the four years since enactment of the FAA, very little information has been provided to the public about how the government has actually used this surveillance authority or the extent to which communications involving an American on one end have been "incidentally" intercepted. In fact, the intelligence community has stated that it cannot even provide an estimate of the number of Americans whose communications have been intercepted under this program. Thirteen senators wrote last summer to the Director of National Intelligence requesting information on how many Americans have had their communications intercepted under the FAA, but they have not yet received an answer.
Such broad surveillance powers should not be reauthorized without a thorough examination of the operation of this program. The Senate should consider and adopt amendments to limit the intrusion of such far-reaching surveillance on Americans' constitutional rights. Most importantly, the Senate should adopt an amendment to require post-collection warrants. If the government, using FAA surveillance, "incidentally" collects the communications of U.S. persons because they are on the other end of a conversation with a non-U.S. person located abroad, the government should not be able to use the information about the U.S. person unless and until it obtains a warrant based on probable cause from the FISC at this point, post-collection. Senator Ron Wyden (D-Oregon), who is expected to offer such an amendment, has termed this the "back door search" problem. Although "incidental" collection of the communications of non-targeted Americans may be legal under the FAA, this should not provide a "back door" for warrantless wiretapping of Americans to be used for other purposes. Thus, the FAA should be amended to require the government to obtain a warrant before searching collected communication for information on a specific U.S. person.
In September, the House voted to extend the law for five more years, without any amendments and without much debate. The Senate should not rush through a similar extension, but should instead provide an opportunity to examine the law's operation and consider reforms to provide increased safeguards for civil liberties.
No one expects that Congress will let the law expire. It is unfortunate that consideration of extending the FAA has been left to the waning days of the congressional lame duck session, making a full and robust debate of these surveillance authorities unlikely. But, at a minimum, the Senate should debate and approve the back door search amendment and several others being offered to strengthen the safeguards for our constitutional rights.
Sharon Bradford Franklin, senior policy counsel at The Constitution Project, co-authored this article.