U.S. government's embattled email surveillance program proves resilient
U.S. government's embattled email surveillance program
proves resilient
By Evan Halper December 13, 2017 3:00 AM
Ever since Edward Snowden revealed the extent to which
the U.S. government searches and reads the email of millions of people — and
the complicity of telecom and tech companies in the effort — demands that the
massive surveillance program be reined in have been intense across party lines.
Yet with the imminent expiration of the legal authority
that allows law enforcement to monitor the email of foreigners and many
Americans, lawmakers are no closer to overhauling the surveillance process than
they were when Snowden, the now-fugitive former National Security Agency
contractor, sought asylum in Russia four years ago.
Congress is paralyzed on the contentious national
security challenge. Lawmakers appear most likely to throw their hands up and
leave in place, for now, the machinery of online surveillance by extending the
Dec. 31 expiration date of the existing authority, potentially for years.
Lawmakers have burned endless hours trying to find a fix
aimed at easing public concerns that the program has grown evermore Orwellian.
The tech industry worries that American government snooping will motivate
clients to move their business abroad. Yet they can’t agree on a solution.
Civil libertarians on the right and left who demand searches be limited and
accompanied by warrants clash with national security hawks who say any such
modifications would endanger Americans.
The pressure from law enforcement to keep the program
unchanged has been strong.
“We need every tool and every authority we’ve got to keep
people safe,” FBI Director Christopher Wray said at a House Judiciary Committee
hearing last week. “I would implore the committee and the Congress not to begin
rebuilding the wall that existed prior to 9/11.”
The Trump administration has signaled that even if
Congress fails to act, an obscure legal ruling could allow it to keep the
program in place for at least several months. Those negotiating the issue on
Capitol Hill now anticipate Congress will just grant a two-year extension of
the status quo. It would be tacked on to the budget bill Congress must pass
this month to keep government open. Lawmakers would have little choice but to
approve it.
A broad coalition of civil rights, internet freedom and
free market advocacy groups is warning lawmakers that punting will have
consequences.
“This is an issue that concerns people across party
lines, and they want Congress to have this debate,” said Neema Singh Guliani,
legislative counsel for the ACLU. “They don’t want something snuck through at
the last minute without vetting.”
Even as action to change the program is stalling in
Congress, hand-wringing over it isn’t.
Sen. Dianne Feinstein (D-Calif.), whose steadfast
advocacy for the surveillance program had long put her at odds with Democratic
activists back home, is among those shifting course. As a high-ranking member
of the Intelligence Committee, the issue is prominent on Feinstein’s plate as
she faces a primary battle.
She is now calling for warrants to be required before law
enforcement can access the emails found through one of the most controversial
and legally precarious types of searches, in which the NSA scrapes databases
for messages of Americans who may have had incidental contact with — or merely
mentioned — foreigners on watch lists.
Some experts read the legal authority to search and read
emails of Americans, known as Section 702, to go even further. For example, if
an American participates in or promotes an event abroad as benign as a climate
change protest or an academic conference on international affairs, they could
get swept into the surveillance, according to the interpretations.
The government doesn’t always limit its probes to issues
of national security. The FBI might use “backdoor searches” in pursuit of a
tax-evasion case, for example. The information may not be usable as evidence in
a criminal complaint, but it can be used to help the FBI find other information
that is.
“This improperly obtained information has been used in
court against Americans charged with crimes that have nothing to do with
national security,” said Rep. Jackie Speier (D-Hillsborough) at a congressional
hearing last week. The FBI won’t say how often that happens, only that it is
infrequent. It told the federal Privacy and Civil Liberties Oversight Board in
2014 that it is “extremely unlikely” that an agent pursuing a case unrelated to
national security would find their target’s email in the Section 702 database.
The assurance did not impress privacy advocates, who note
that law enforcement searches of the 702 databases targeted at Americans have
surged. The Office of the Director of National Intelligence revealed in April
that more than 30,000 such searches were conducted last year.
“This is not just an abstract legal concern,” said a
recent letter to Congress from the advocacy groups coalition, which warned the
intelligence report revealed a “strikingly high number” of searches of
Americans.
The groups recently found themselves in an unexpected
place: praising their longtime nemesis Feinstein, after she joined the push for
warrant requirements in a closed session of the Senate Intelligence Committee.
Feinstein argued that “Americans have a reasonable expectation of privacy in
their communications” and that the 4th Amendment requires the government to
show probable cause before reading private email messages, according to a
committee report made public.
But most of the committee was not persuaded, and
Feinstein ultimately joined her colleagues in voting to advance a plan that
reauthorizes the surveillance authority without the new warrant requirement.
Other Democrats, including California Sen. Kamala Harris, voted against the
bill.
The political odd couple of Sens. Ron Wyden, an Oregon
Democrat, and Rand Paul, a Kentucky Republican, have found common ground in
their distaste for warrantless searches. In the House, tea party activists have
joined liberals in crusading to limit the opaque online intelligence gathering.
The full House has twice voted in recent years to
restrict the type of data collection that concerns Feinstein. The House
Judiciary Committee included such a restriction in the reauthorization measure
it recently advanced. But the House Intelligence Committee left it out.
There are so many competing visions for how to reshape
the program that none of them right now appear to have enough support to reach
the desk of President Trump, who has signaled little interest in restricting
the monitoring.
Trump’s own disputes with intelligence agencies have
further complicated the debate.
Politically compromising and possibly illegal
communications between Trump associates and Russian nationals intercepted by
intelligence officials before Trump took office have moved the president’s
allies to demand their own tweaks to Section 702. They would prohibit
intelligence agencies from revealing to other government officials — or
“unmasking” — the identities of Americans whose communications with foreigners
are monitored through the surveillance program.
After the provision was tucked into what had been a
bipartisan House Intelligence Committee plan to make some reforms to Section
702, Democrats abandoned the bill. The ranking Democrat on the committee, Rep.
Adam Schiff of Burbank, lamented that the provision has imperiled the measure,
as Republicans don’t have enough support to pass it through the House on their
own.
But they may ultimately have saved Schiff a lot of grief.
The bill he was poised to vote for is not popular among activists influential
in his district. They complain it does not go far enough in restricting
warrantless surveillance.
Schiff is unmoved.
“If we put a warrant requirement on the front end for
everything, there are a number of circumstances where we would want law
enforcement and intelligence agencies to do searches, but they would lack
probable cause,” Schiff said. “Some groups will not be satisfied with anything
short of a blanket warrant requirement. I fear that could lead to a reluctance
to conduct searches in national security cases, and a stove-piping of
information.”
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