Con­tro­ver­sial spy­ing pro­gram un­der re­view

USA TODAY US Edition - - NEWS - Erin Kelly USA TO­DAY

Congress must deWASHINGTON cide by year’s end whether to over­haul a con­tro­ver­sial sur­veil­lance pro­gram that col­lects the con­tent of Amer­i­cans’ emails, phone calls, text mes­sages and other elec­tronic com­mu­ni­ca­tion with­out a war­rant.

“This law is sup­posed to be a tool to fight ter­ror­ist threats overseas; in­stead it’s be­ing used as an end-run around the Con­sti­tu­tion,” said Sen. Ron Wy­den, DOre., a mem­ber of the Se­nate In­tel­li­gence Com­mit­tee. Wy­den promised to put a hold on any bill that al­lows the gov­ern­ment to con­tinue spy­ing on Amer­i­cans with­out a search war­rant.

The pro­gram, known as Sec­tion 702 of the For­eign In­tel­li­gence Sur­veil­lance Act, was ap­proved by Congress in 2008 to in­crease the gov­ern­ment’s abil­ity to track and foil for­eign ter­ror­ists in the wake of the 9/11 at­tacks.

Sec­tion 702 was de­signed to spy on for­eign ci­ti­zens liv­ing out­side the USA, and it specif­i­cally bars the tar­get­ing of Amer­i­can ci­ti­zens or any­one re­sid­ing in the USA. Crit­ics say the pro­gram sweeps up the elec­tronic data of in­no­cent Amer­i­cans who may com­mu­ni­cate with for­eign na­tion­als, even when those for­eign­ers aren’t suspected of ter­ror­ist ac­tiv­ity.

The gov­ern­ment calls this “in- ciden­tal sur­veil­lance,” and in­tel­li­gence of­fi­cials have re­fused to tell Congress how many un­know­ing Amer­i­cans have had their per­sonal data col­lected.

The law is set to ex­pire at the end of De­cem­ber, leav­ing it to Congress to ei­ther re­new the pro­gram as it is or make changes to strengthen pri­vacy and con­sti­tu­tional pro­tec­tions. Law­mak­ers are not likely to let the law lapse.

Anti-ter­ror law al­lows war­rant­less snoop­ing on Amer­i­cans

The House Ju­di­ciary Com­mit­tee is work­ing to come up with a bi­par­ti­san bill that would al­low le­git­i­mate sur­veil­lance of for­eign­ers overseas to con­tinue while bet­ter pro­tect­ing Amer­i­cans’ civil lib­er­ties.

Crit­ics say Sec­tion 702 is more dan­ger­ous to Amer­i­cans’ civil lib­er­ties than the bet­ter-known Sec­tion 215 of the Pa­triot Act, which Congress voted in 2015 to rein in af­ter its ex­is­tence was dis­closed by for­mer NSA con­trac­tor Ed­ward Snow­den.

That pro­gram col­lected phone record meta­data that re­vealed whom Amer­i­cans called, when the calls were made and how long they lasted. It did not col­lect the con­tent of con­ver­sa­tions, but the Sec­tion 702 pro­gram does.

“The 702 pro­gram is about the ac­tual data — your con­ver­sa­tions, your pho­to­graphs, your emails,” said Rep. Thomas Massie, R-Ky., a for­mer tech com­pany ex­ec­u­tive, soft­ware de­vel­oper and en­gi­neer who wants to stop the war­rant­less sur­veil­lance of Amer­i­cans. “This is not just who you send it to, but what’s in it.”

In­tel­li­gence of­fi­cials ap­pealed to law­mak­ers to re­new the pro­gram, which they said has helped stop ter­ror­ist plots with­out vi­o­lat­ing Amer­i­cans’ pri­vacy rights.

In one case, the CIA used in­tel­li­gence gath­ered un­der Sec­tion 702 to un­cover a pho­to­graph and

“This law is sup­posed to be a tool to fight ter­ror­ist threats overseas; in­stead it’s be­ing used as an end-run around the Con­sti­tu­tion.” Sen. Ron Wy­den, D- Ore.

other de­tails that en­abled al­lies in an African na­tion to ar­rest two Is­lamic State mil­i­tants con­nected to plan­ning “a spe­cific and im­me­di­ate threat against U.S. per­son­nel and in­ter­ests,” ac­cord­ing to joint tes­ti­mony be­fore the Se­nate In­tel­li­gence Com­mit­tee in June by Na­tional In­tel­li­gence Director Dan Coats, Na­tional Se­cu­rity Agency Director Michael Rogers, Deputy At­tor­ney Gen­eral Rod Rosen­stein and act­ing FBI Director An­drew McCabe.

“To pro­tect pri­vacy and civil lib­er­ties, this pro­gram has op­er­ated un­der strict rules and been care­fully over­seen by all three branches of the gov­ern­ment,” Coats tes­ti­fied.

One of the big­gest con­cerns crit­ics have is that in­for­ma­tion col­lected “in­ci­den­tally” on U.S. ci­ti­zens is stored by the NSA in data­bases that the FBI and other law en­force­ment agen­cies can search to build crim­i­nal cases against Amer­i­cans.

SAUL LOEB, AFP/GETTY IMAGES

From left, An­drew McCabe, Rod Rosen­stein, Dan Coats and Michael Rogers tes­tify be­fore the Se­nate in­tel­li­gence panel in June about Sec­tion 702 of the For­eign In­tel­li­gence Sur­veil­lance Act.

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