Law­mak­ers re­luc­tant to re­new FISA pow­ers

Seek strong safe­guards to Amer­i­cans’ pri­vacy

The Washington Times Daily - - FRONT PAGE - BY ALEX SWOYER

Congress shouldn’t reau­tho­rize the gov­ern­ment’s most po­tent snoop­ing pow­ers un­til it im­poses stronger safe­guards for Amer­i­cans, a key con­ser­va­tive law­maker said in re­sponse to a judge’s rul­ing that U.S. in­tel­li­gence agen­cies tried to hide po­ten­tial breaches of pri­vacy rights.

Rep. Raul R. Labrador, Idaho Re­pub­li­can, said Judge Rose­mary M. Col­lyer’s April rul­ing is the lat­est in a string of warn­ing signs that fed­eral agen­cies need more over­sight be­fore Congress re­news their broad pow­ers un­der Sec­tion 702 of the For­eign In­tel­li­gence Sur­veil­lance Act.

In par­tic­u­lar, Mr. Labrador and sev­eral col­leagues want to know how of­ten Amer­i­cans’ in­for­ma­tion is scooped up and ex­am­ined in a process that, ac­cord­ing to Sec­tion 702, is sup­posed to be tar­geted at for­eign­ers.

The Na­tional Se­cu­rity Agency and other in­tel­li­gence branches have re­fused to di­vulge the in­for­ma­tion on Amer­i­cans to Congress, even though Judge Col­lyer said in her rul­ing that the gov­ern­ment could try to iden­tify it.

“The im­por­tance of this is­sue has grown in light of re­cent al­le­ga­tions that the NSA may have abused its power to carry out a po­lit­i­cal agenda,” Mr. Labrador told The Washington Times. “Congress should not reau­tho­rize Sec­tion 702 with­out real, mean­ing­ful safe­guards for the Amer­i­can peo­ple.”

Sec­tion 702 al­lows the sur­veil­lance of for­eign

tar­gets, who are nonci­t­i­zens and lo­cated out­side of the coun­try, with­out the stan­dard Fourth Amend­ment pro­tec­tions af­forded to United States cit­i­zens.

The sec­tion is slated to sun­set at the end of this year. Top se­cu­rity of­fi­cials are plead­ing for Congress to re­new the pro­vi­sion, which they say is one of the most im­por­tant tools as the U.S. bat­tles ter­ror­ism and tries to main­tain its global lead­er­ship po­si­tion.

The Se­nate Select Com­mit­tee on In­tel­li­gence has sched­uled a rare open hear­ing for Wed­nes­day to give top in­tel­li­gence of­fi­cials a chance to make their case in pub­lic.

But po­ten­tial abuses, in­clud­ing those doc­u­mented by Judge Col­lyer, have cre­ated hur­dles.

The judge said se­cu­rity of­fi­cials had been break­ing their own as­sur­ances for how they were us­ing the in­for­ma­tion gleaned from for­eign in­tel­li­gence snoop­ing — and only be­lat­edly re­ported their breaches to the FISA Court, which was set up to be an in­de­pen­dent check.

“On Oc­to­ber 24, 2016, the gov­ern­ment orally ap­prised the Court of sig­nif­i­cant non-com­pli­ance with the NSA’s min­i­miza­tion pro­ce­dures in­volv­ing queries of data ac­quired un­der Sec­tion 702 us­ing U.S. per­son iden­ti­fiers,” Judge Col­lyer wrote. “The full scope of non­com­pli­ant query­ing prac­tices had not been pre­vi­ously dis­closed to the Court.”

El­iz­a­beth Goitein, co-di­rec­tor of the Bren­nan Cen­ter for Jus­tice’s Lib­erty and Na­tional Se­cu­rity Pro­gram, said Judge Col­lyer’s opin­ion is just the lat­est to ex­pose vi­o­la­tions by the FBI, the CIA and the NSA.

“It is hard to find one of those opin­ions that doesn’t con­tain 20 to 30 pages de­scrib­ing all the ways in which the agen­cies fail to com­ply with court or­ders,” she said. “It shows that this is con­tin­u­ing — that the per­va­sive vi­o­la­tions of FISA Court or­ders has hap­pened from the be­gin­ning.”

Se­cu­rity of­fi­cials counter that Sec­tion 702 is crit­i­cal to the gov­ern­ment’s abil­ity to sniff out ter­ror­ist threats and other dan­gers and say los­ing such pow­ers would be a ma­jor blow to their ef­forts to keep the coun­try safe.

Matt Olsen, for­mer di­rec­tor of the Na­tional Coun­tert­er­ror­ism Cen­ter, said he hopes law­mak­ers don’t let Sec­tion 702 ex­pire — though he ac­knowl­edged that reau­tho­riza­tion will be tougher than it was in 2012.

“It does feel like some­thing has changed since 2012 that’s go­ing to make this harder,” he said. “I don’t think there re­ally is much de­bate over the fun­da­men­tals of 702 … the value of it, the sort of core prin­ci­ples about how it works — I think there is gen­eral sup­port for that.”

Pri­vacy ad­vo­cates, though, say they hope Judge Col­lyer’s rul­ing gets more at­ten­tion among mem­bers of Congress.

“This is not a Re­pub­li­can-Demo­crat is­sue. It is an is­sue about over­ween­ing ex­ec­u­tive branch power,” said Lee Tien, an at­tor­ney with the Elec­tronic Fron­tier Foun­da­tion.

He said the se­crecy sur­round­ing the ex­ec­u­tive branch’s sur­veil­lance au­thor­ity leads to vi­o­la­tions be­ing hid­den from the pub­lic and se­lec­tive leak­ing and al­lows “Congress to claim ig­no­rance when vi­o­la­tions are re­vealed.”

“Politi­cians essen­tially make the cal­cu­la­tion that Amer­i­cans are more con­cerned about ter­ror­ism than hon­est and in­formed over­sight, ac­count­abil­ity and trans­parency,” said Mr. Tien. “Over the last few months, we’ve watched a lot of politi­cians trip over ques­tions about sur­veil­lance, in­ci­den­tal col­lec­tion and un­mask­ing.”

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