Privacy advocates are headed for a showdown with the U.S. intelligence community this winter when Section 702 of the Foreign Intelligence Surveillance Act comes up for reauthorization in Congress.
Sens. Rand Paul (R-Ky.) and Ron Wyden (D-Ore.) told Independent Journal Review in interviews over the last month that they want to limit the intelligence community's use of information related to U.S. citizens incidentally collected under Section 702 surveillance with reforms that intelligence analysts say would hurt their operational capabilities.
Wyden told IJR he and Paul plan to introduce an amendment to the reauthorization bill, which already has some bipartisan support in the House, requiring intelligence agencies to obtain a warrant before conducting searches of incidentally collected information pertaining to known American citizens.
But a senior NSA analyst told reporters in a briefing Monday that such a change would have a negative operational impact on her work because it is rare for investigators to have the amount of information needed to meet probable cause requirements to obtain a search warrant in foreign intelligence cases.
She gave an example: if a terrorist attack happened abroad, and a slip of paper in the attacker's pocket contained an email address with “the American” or another identifier written next to it, a trained intelligence analyst would be able to get approval for the desired search terms from attorneys within the agency before conducting a database query.
If Wyden and Paul's changes were implemented, she said, such a scenario wouldn't satisfy requirements to obtain a warrant in order to run the search.
A senior U.S. government official authorized to speak on behalf of the CIA added that the database queries are important to his organization as well.
He said, in one recent instance, the CIA identified a shipment of classified materials that was destined for a classified (and illegal) location. The CIA wanted to know whether the American manufacturer was involved with the scheme, and — using a Section 702 database search of the manufacturer — the Agency found he was unwitting, reached out to the American manufacturer, and prevented the shipment from leaving.
The official said the information CIA agents used to run the database query likely wouldn't have been enough to obtain a warrant if Wyden and Paul's reforms were to be passed.
FISA Section 702 provides authority for U.S. intelligence agencies to conduct surveillance of foreign individuals who are located outside the United States through U.S. Internet Service Providers and communications companies that targets use.
Supporters say Section 702 strikes the right balance between promoting agility and flexibility for investigators while still protecting the privacy of American citizens who can sometimes be caught up in FISA surveillance if they are in communication with foreign intelligence targets.
But privacy advocates disagree. Some lawmakers have called for an annual report of the number of Americans impacted by incidental collection, but those in intelligence say it is difficult to come up with a precise number because they can't always determine the nationalities of people included in foreign intelligence based only upon information like an email address.
What investigators do provide, though, is the estimated number of database search queries related to known U.S. persons who may have been incidentally surveilled under FISA Section 702 authority. In 2016, that figure was 5,288 queries among intelligence agencies (not including the FBI).
Paul and Wyden see such database queries of Americans as a violation of Fourth Amendment privacy protections despite court rulings that maintain FISA Section 702 information can be lawfully searched because it was lawfully obtained.
“We do not believe that security and liberty are mutually exclusive. You can have both,” Wyden told IJR. “You can target foreign threats that are serious for the United States and the country, and you can protect people's liberties, which is why we're going to try to eliminate the backdoor search loophole.”
President Donald Trump's official position is support for the permanent, unaltered reauthorization of FISA Section 702, but whether or not Congress can come to an agreement on the contentious matter before the end of the year is up in the air.
Director of National Intelligence Dan Coats told reporters at the Monday briefing that FISA Section 702 reauthorization is “clearly a major issue for the intelligence community.”
“It's one of our top priorities this year,” he said.
If Congress doesn't reauthorize Section 702 before December 31, the program — described by one senior U.S. government official authorized to speak on behalf of the NSA as “the single most important operational statute the NSA has” — would lapse, causing uncertainty and delays for current foreign intelligence operations.
And on the heels of Trump's agreement with top Democrats to push the debt ceiling hike and government funding fight to December, some lawmakers are worried they won't have time for a robust debate on the merits of the surveillance program.
That's why Wyden is already talking up the issue.
“We're going to pull out all the stops to fight a flawed bill,” he said.