It says nothing good about the state of surveillance reform that Congress is considering flipping the Fourth Amendment on its head. In a bid to put a patina of reform on a key spying program, Congress is poised to make it harder for the FBI to spy on those whom the agency has probable cause to believe have committed a crime. But while this provides a layer of protection against invasive searches to those suspected of wrongdoing, there is no such protection for anyone else, which means it would be easier to spy on a completely innocent person than a suspected criminal.
The spying program—known as Section 702 of the FISA Amendments Act—authorizes one of the sweeping, warrantless surveillance programs first exposed by Edward Snowden. It gives the government the power to make American telecommunications and tech companies turn over the communications of foreigners located overseas for purposes like counterterrorism, counterproliferation, and counterespionage.
Under one part of the program, often called PRISM, the government asks providers like Google, Microsoft, and Apple for the emails, texts, chats, stored documents, and other associated records of a target. Under another part of the program, called Upstream, telecommunications companies search for emails and other internet communications as they transit through the backbone of those companies’ networks. Under both programs, the government obtains the messages of the target (including any statements about American citizens) and the messages of any people the target might be speaking to.
The government calls the collection of those speaking to a target, which includes significant amounts of emails and other communications from Americans living in the U.S., “incidental” collection, though it is not at all incidental to the way Section 702 is designed to work.
Congress is rushing to reauthorize the program. While intelligence collection can continue through April, the law itself expires on January 19. Congress had all last year to reform and reauthorize the program, but the intelligence community balked at bills that implemented even minor reforms, such as one passed by the House Judiciary Committee in November. When Congress passed a short-term government funding bill last month, it tagged the same extension to the FISA Amendments Act, giving itself 20 days to pass a new bill. It is now on the clock.
On Tuesday, the Rules Committee in the House will consider a bill that strikes a middle ground between the Judiciary Committee’s weak reform bill and one passed by the House Intelligence Committee that codifies some of the more problematic aspects of Section 702 and is arguably worse for privacy than the current law. As written, the new bill is likely to win the approval of Adam Schiff, the ranking Democrat on the Intelligence Committee (who did not support his committee’s bill), and Bob Goodlatte, the Republican chair of Judiciary Committee. Those pushing a quick reauthorization hope that this bill, by resolving jurisdictional fights between the two committees and appeasing the most important leaders, will get through the House.
A key provision is a backdoor search fix. Backdoor searches are queries of massive databases of communications collected under Section 702. The National Security Agency, the CIA, the FBI, and the National Counterterrorism Center are able to search Americans’ names, email addresses, or other “selectors.” For years, critics have complained that such queries amount to unconstitutional warrantless searches, because they allow the government to get the contents of an American’s communications without an individualized warrant.
The problem is particularly acute for the FBI. After all, unlike the CIA and the NSA, the FBI can put Americans in prison. Plus, because FBI’s jurisdictional focus is primarily American law enforcement, not foreign intelligence, it does far more of these searches than other agencies. Effectively, it does such searches every time it gets a new lead.
The transcript from a hearing at the Foreign Intelligence Surveillance Court, which oversees requests for surveillance warrants, shows an unidentified Department of Justice official explaining that, “[T]hese systems are queried on such a routine basis, these federated systems in some ways are FBI’s Google of its lawfully acquired information.” The official said these queries are “the way that the FBI, looking at its lawfully acquired information, makes its initial determinations about whether further investigation, which often involves further more privacy invasive steps, is warranted or not.”
The FBI has never explained how accessing this information in response to a tip is less invasive than, say, obtaining call records. Nor has it explained how such access complies with the requirement that FBI agents consider using the “least intrusive” approach at each stage of their investigations. Its investigative manual even explains that “collecting information regarding an isolated event, such as a certain phone number called … is less intrusive or invasive of an individual’s privacy than collecting a complete communications … profile.” It also notes that wiretaps are particularly intrusive. Nevertheless, the FBI starts out any inquiry by pulling up everything it has in its databases from what are, effectively, wiretaps.
Privacy-oriented members of Congress like Ron Wyden, Rand Paul, Justin Amash, and Zoe Lofgren have long complained about the practice. And in the last year, even long-time champions of surveillance like Senator Dianne Feinstein and former CIA Director Michael Hayden have expressed concerns about it, with Feinstein attempting to add an amendment that would require a warrant to query Americans’ communications. After it failed, Feinstein said, “I believe that putting a warrant requirement in place for U.S. person queries under Section 702 actually protects the program by preserving its core capability and putting it on more solid constitutional footing.”
Meanwhile, other Republicans have begun to demand real reforms, in response to spying tied to the collection of former National Security Advisor Michael Flynn’s communications with Russian Ambassador Sergey Kislyak.
As a result, the current bill includes a requirement that the FBI obtain a warrant before it accesses 702 content for any search conducted as part of a criminal investigation. However, it still permits the FBI to access the content of communications using queries “reasonably designed to find and extract foreign intelligence information, regardless of whether such foreign intelligence information could also be considered evidence of a crime.” Under current practice, this enables the FBI to coerce a well-placed person to inform on those he or she communicates with, so long as doing so was justified in the name of national security. Furthermore, it doesn’t define what it means by a query “reasonably designed” to return foreign intelligence information, which means that it would essentially allow the FBI to define the term.
Worse still, the bill preserves—or even expands—the most problematic form of backdoor searches. It explicitly permits the FBI “to access the results of queries conducted when evaluating whether to open an assessment or predicated investigation relating to the national security of the United States.”
This means that even before the FBI decides whether there’s merit to a tip, it can access Americans’ communications collected under 702 to see what’s there. Indeed, the bill is describing queries that happen prior to the FBI opening a so-called assessment, a very early investigative step that doesn’t require any evidence of wrongdoing. This would seem to go further than what the Privacy and Civil Liberties Oversight Board approved with some reservations in 2014, which described the query as happening when an intelligence agent initiated an assessment.
As a result, Congress is, in an apparently serious attempt at surveillance reform, about to make it easier for the FBI to spy on those whom it has zero evidence of wrongdoing than those whom it has probable cause to suspect of illegal behavior. This bill would protect a very small subset of suspected criminals—perhaps just one a year, based on reporting from 2016. But it would do nothing to prevent the FBI from reading the communications of any innocent American who is named in a tip.