Is the NSA spy­ing on you?

Los Angeles Times - - OPINION -

The Trump ad­min­is­tra­tion is ur­gently lob­by­ing Congress to reau­tho­rize Sec­tion 702 of the For­eign In­tel­li­gence Sur­veil­lance Act, which al­lows the Na­tional Se­cu­rity Agency to col­lect the elec­tronic com­mu­ni­ca­tions of for­eign­ers liv­ing abroad. Be­fore he was fired, FBI Di­rec­tor James B. Comey told the Se­nate Ju­di­ciary Com­mit­tee that los­ing Sec­tion 702 would be “dis­as­trous.”

But Congress should not sim­ply rub­ber­stamp the law as it ex­ists. Rather, Sec­tion 702 should be fine-tuned to af­ford greater pri­vacy pro­tec­tions for Amer­i­cans.

Yes, Amer­i­cans. Be­cause even though res­i­dents of this coun­try aren’t the tar­gets of Sec­tion 702’s elab­o­rate elec­tronic drag­net, their emails, phone calls and In­ter­net chats can be caught up in it in­ci­den­tally — for ex­am­ple, when a for­eign “tar­get” is email­ing or talk­ing on the phone to an Amer­i­can liv­ing in the United States.

Sec­tion 702 is the direct de­scen­dant of the war­rant­less elec­tronic sur­veil­lance pro­gram in­sti­tuted by the Ge­orge W. Bush ad­min­is­tra­tion af­ter Sept. 11, 2001, that caused a sen­sa­tion when its ex­is­tence was ex­posed by the New York Times in 2005. Un­like that shad­owy pro­gram, Sec­tion 702 was duly en­acted by Congress and is over­seen fairly rig­or­ously by a fed­eral court, al­beit one that meets in se­cret.

Un­der Sec­tion 702, the gov­ern­ment does not need to ob­tain in­di­vid­ual war­rants au­tho­riz­ing the sur­veil­lance of each per­son who is tar­geted. In­stead, at the re­quest of the at­tor­ney gen­eral and the di­rec­tor of na­tional in­tel­li­gence, the For­eign In­tel­li­gence Sur­veil­lance Court cer­ti­fies cat­e­gories of for­eign­ers who may be ap­pro­pri­ately tar­geted. The court also ap­proves pro­ce­dures for “min­i­miz­ing” (pro­tect­ing the pri­vacy) of in­for­ma­tion about U.S. cit­i­zens col­lected as part of the sur­veil­lance.

Comey’s view of the value of Sec­tion 702 is widely shared. Sen. Dianne Fe­in­stein says it “has been a valu­able part of our counter-ter­ror­ism ef­fort.” In a 2014 re­port af­ter Ed­ward Snow­den’s rev­e­la­tions, the pres­i­dent’s Pri­vacy and Civil Lib­er­ties Over­sight Board con­cluded that in­tel­li­gence col­lected un­der Sec­tion 702 “has en­abled the dis­cov­ery of pre­vi­ously un­known ter­ror­ist op­er­a­tives as well as the lo­ca­tions and move­ments of sus­pects al­ready known to the gov­ern­ment.”

But civil lib­er­ties groups ar­gue that the pro­gram does not suf­fi­ciently pro­tect Amer­i­cans’ pri­vacy, although they ac­knowl­edge that there is no ev­i­dence of egre­gious abuses.

One per­sua­sive com­plaint about Sec­tion 702 is that the in­tel­li­gence com­mu­nity hasn’t quan­ti­fied the num­ber of Amer­i­cans whose con­ver­sa­tions have been cap­tured by sur­veil­lance un­der the pro­gram, mak­ing it dif­fi­cult to as­sess whether it is suf­fi­ciently cir­cum­scribed. Trump’s di­rec­tor of na­tional in­tel­li­gence, Dan Coats, told the Se­nate that “it re­mains in­fea­si­ble to gen­er­ate an ex­act, ac­cu­rate, mean­ing­ful and re­spon­sive method­ol­ogy that can count how of­ten a U.S. per­son’s com­mu­ni­ca­tions may be col­lected.” That strikes us as de­featist. Congress should in­sist the in­tel­li­gence com­mu­nity make a good­faith ef­fort to keep track of how many Amer­i­cans are caught in the Sec­tion 702 net.

And while the ac­qui­si­tion of in­tel­li­gence un­der the law is sup­posed to be “con­sis­tent with the 4th Amend­ment,” in­for­ma­tion about Amer­i­cans (which, re­mem­ber, is gath­ered with­out an in­di­vid­u­al­ized war­rant) can be re­tained and turned over to law en­force­ment if it shows ev­i­dence of crim­i­nal ac­tiv­ity. The Pri­vacy and Civil Lib­er­ties Over­sight Board rec­om­mended that the FBI be re­quired to ob­tain ap­proval from the FISA court be­fore search­ing a database of com­mu­ni­ca­tions gath­ered un­der the pro­gram in con­nec­tion with crim­i­nal mat­ters so that the Sec­tion 702 database doesn’t be­come a repos­i­tory for fish­ing ex­pe­di­tions.

That rec­om­men­da­tion might seem less ur­gent given statis­tics from the Of­fice of the Di­rec­tor of Na­tional In­tel­li­gence show­ing that the FBI searched the Sec­tion 702 database only once in 2016 in con­nec­tion with crim­i­nal mat­ters un­re­lated to na­tional se­cu­rity. Still, Amer­i­cans shouldn’t have to face the pos­si­bil­ity of pros­e­cu­tion based on in­for­ma­tion gath­ered — with­out a war­rant — for for­eign in­tel­li­gence pur­poses. That con­tra­venes the guar­an­tee of the 4th Amend­ment that searches must be rea­son­able and the long-stand­ing prac­tice of re­quir­ing war­rants based on prob­a­ble cause.

Another way to pro­tect Amer­i­cans’ pri­vacy would be for Congress to cod­ify a re­cent de­ci­sion by the NSA to no longer col­lect com­mu­ni­ca­tions in which the email ad­dress of a for­eign tar­get ap­peared in the text of a mes­sage be­tween Amer­i­cans. The NSA stopped col­lect­ing such “about” mes­sages be­cause it ap­par­ently felt it couldn’t do so with­out in­ad­ver­tently vi­o­lat­ing Amer­i­cans’ pri­vacy.

Fi­nally, un­like the Trump ad­min­is­tra­tion and some Repub­li­cans in Congress, we be­lieve that this law — even in an im­proved ver­sion — should be au­tho­rized for no more than five years, as the cur­rent ver­sion was in 2012. A pro­gram that col­lects so much per­sonal in­for­ma­tion about Amer­i­cans, and that was en­acted in re­sponse to a ter­ror­ist threat that we all hope is tem­po­rary, should be sub­ject to pe­ri­odic re­view.

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.