SUBSCRIBE TO OUR FREE NEWSLETTER
Daily news & progressive opinion—funded by the people, not the corporations—delivered straight to your inbox.
5
#000000
#FFFFFF
5
#000000
#FFFFFF
fisa court
27 Groups Urge Congress to Close FBI 'Backdoor Search' Loophole
"Ending this unconstitutional practice is imperative to ensure that foreign intelligence surveillance does not swallow Americans' privacy rights."
Jul 26, 2021
Over two dozen advocacy groups on Monday sent a letter urging members of Congress to back a measure that, if enacted, would close the so-called "backdoor search" loophole that allows warrantless surveillance of U.S. citizens' data by government agencies including the FBI and CIA.
"Right before its August recess, Congress might finally slam the FBI's warrantless backdoor in their faces."
--Fight for the Future
The letter (pdf), led by Demand Progress and signed by 27 groups, calls on House leaders to support an amendment to H.R. 4505--the Commerce, Justice, Science, and Related Agencies Appropriations Act for Fiscal Year 2022--proposed by Reps. Zoe Lofgren (D-Calif.), Pramila Jayapal (D-Wash.), Thomas Massie (R-Ky.), and Warren Davidson (R-Ohio).
If passed, the amendment would prohibit the use of funds for the warrantless search of Americans' communications acquired under Section 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA), which the letter's authors call a "controversial foreign intelligence authority that acquires an untold number of Americans' Fourth Amendment-protected information."
The groups' letter comes a day before the House Rules Committee will decide whether the amendment will proceed to a floor vote.
"Ending this unconstitutional practice is imperative to ensure that foreign intelligence surveillance does not swallow Americans' privacy rights," the letter asserts. "Recently released opinions by the Foreign Intelligence Surveillance Court (FISC) underscore the need for a warrant requirement to protect the privacy of those whose communications are 'incidentally' collected."
\u201cRight before its August recess, Congress might finally slam the FBI\u2019s warrantless backdoor in their faces. An amendment has been proposed as part of a budget bill to close the backdoor. Sign the petition telling lawmakers to support the amendment. https://t.co/7R8xGcOakg\u201d— @team@fightforthefuture.org on Mastodon (@@team@fightforthefuture.org on Mastodon) 1627334100
"According to one opinion, the FBI, over the course of one year, conducted three million queries of a single database containing Section 702 communications, most of which presumably were U.S. person queries in light of the FBI's primarily domestic mission," the letter says. "Although Congress has required the FBI to obtain a FISC order for a small subset of these queries, the FISC found that the FBI has literally never complied with this statutory requirement and has violated it on at least dozens of occasions."
The letter continues:
Moreover, the FBI's own court-approved procedures place some limits on queries, yet several recent FISC decisions found that FBI agents simply ignore those rules in a shocking number of cases, conducting queries when they have no reason to believe it would return foreign intelligence or evidence of a crime.
Agents queried Section 702 data to find the communications of people who came to the FBI to perform repairs; victims who reported crimes; and business, religious, and community leaders applying to participate in the FBI's Citizens Academy. In a move that has disturbing echoes of the NSA's bulk collection of Americans' phone records, agents have also conducted so-called "batch queries," such as one that swept in the 70,000 people who have authorized access to FBI facilities.
According to the San Francisco-based digital rights group Electronic Frontier Foundation (EFF), one of the letter's signatories, "in this wide-sweeping dragnet approach to intelligence collection, companies allow access to and the government collects a large amount of 'incidental' communications--that is millions of untargeted communications of U.S. persons that are swept up with the intended data."
"The FBI has the ability to then bypass the Fourth Amendment requirement of a warrant and sift through these 'incidental' communications of Americans--effectively using Section 702 as a 'backdoor' around the Constitution," EFF added. "They've been told by the FISA Court this violates Americans' Fourth Amendment rights but--it has not seemed to stop them and the FISA Court has failed to take steps to ensure that they stop."
\u201cHelp end warrantless FBI surveillance of communications. It\u2019s time to close the backdoor in Section 702 of FISA by telling your representatives to support @RepZoeLofgren @RepJayapal @RepThomasMassie @davidson @WarrenDavidson's amendment to H.R. 4505.\n\nhttps://t.co/bZqmgEDsAw\u201d— EFF (@EFF) 1627072010
Sean Vitka, senior policy counsel for Demand Progress, said in a statement that "the right to privacy doesn't know party lines, and it is heartening to see progressives and libertarians come together to once again defend civil liberties in the United States. Given the repeated, systemic abuse of Section 702 to violate Americans' rights, it is clear we must fight together, or we will lose together."
Bob Goodlatte, senior policy advisor for the Project for Privacy and Surveillance Accountability and former chair of the House Judiciary Committee, said that "the FBI shouldn't be able to snoop on our conversations without getting a warrant, especially not after years of breaking the rules set by Congress and the courts. The Lofgren-Massie amendment would put an end to this dangerous and unconstitutional practice."
Keep ReadingShow Less
'Our Right to Privacy Is at Stake': Jayapal Leads Demand for White House Answers on Possible Illegal Mass Surveillance
"We are concerned that the executive branch may, once again, be using questionable legal theories of executive authority to justify the illegal surveillance of the American people," the 39 lawmakers wrote.
Sep 25, 2020
A bipartisan group of House lawmakers on Thursday demanded that the Trump administration answer critical questions about possible unauthorized domestic mass surveillance conducted by the federal government after the expiration of controversial portions of the Foreign Intelligence Surveillance Act, or FISA.
In a letter (pdf) to Attorney General William Barr and Director of National Intelligence Daniel Ratcliffe, the lawmakers--led by Reps. Pramilla Jayapal (D-Wash.) and Warren Davidson (R-Ohio)--note than three FISA provisions expired in March: business records collection (Section 215), roving wiretap, and the so-called "lone wolf" provision added in 2004 to target potential terrorists not affiliated with known terror groups or foreign powers.
\u201cWe must ensure this administration is not illegally surveilling the American people. @WarrenDavidson and I sent a bipartisan letter demanding a full explanation of current surveillance practices. There must be oversight. Our right to privacy is at stake. https://t.co/tfH48a2Vra\u201d— Rep. Pramila Jayapal (@Rep. Pramila Jayapal) 1601056804
Section 215 was orginally used by the FBI to acquire records pertaining to a specific individual investigation. However, in 2013 whistleblower Edward Snowden revealed that the National Security Agency was using the law to justify bulk collection of domestic metadata. The controversial provision expired earlier this year.
In May, the Senate voted to reauthorize the USA FREEDOM Act--a move which effectively restored Section 215 and the other contentious FISA provisions--but failed to pass an amendment banning warrantless surveillance of Americans' internet searches, which Sen. Ron Wyden (D-Ore.) at the time likened to "almost spying on [people's] thoughts." The measure is currently stalled pending reconciliation of the House bill, which passed in March, and the more recent Senate version.
In the letter, the lawmakers state that "with the expiration of Section 215, we are concerned that the executive branch may, once again, be using questionable legal theories of executive authority to justify the illegal surveillance of the American people."
The legislators also express their concern that the Trump administration "believes it has the inherent authority to surveil the American people without any congressional authorization."
The letter notes that Sen. Richard Burr (R-N.C.), the former chairman of the Senate Select Committee on Intelligence, "stated that under Executive Order 12333, the executive branch could continue to engage in mass records surveillance of people in the United States without congressional approval."
E.O. 12333 is a Reagan administration directive cited by U.S. intelligence agencies as the justification for expanding surveillance, especially data collection, without satutory authorization or congressional oversight. The NSA has claimed the order provides all the legal justification it needs to collect unencrypted information that flows through companies like Google and Yahoo.
The lawmakers also cite Stellar Wind, an illegal mass surveillance program begun during the George W. Bush administration, exposed by Wired in 2012, and explained in great detail the following year by Snowden.
"Under Stellar Wind, the executive branch secretly conducted warrantless surveillance of communications content, as well as mass collection of communications metadata" in "direct contradiction to FISA and the Constitution for years," the lawmakers wrote.
The legislators then ask 15 pointed questions meant to "confirm that the administration is not illegally surveilling the American people" and to "ensure that surveillance activities under the expired USA FREEDOM authorities," which was meant to temper the infamous execesses of the USA PATRIOT Act, have ended. These include:
- Whether any federal agency is using E.O. 12333 "or any other claimed inherent surveillance powers" to conduct warrantless surveillance.
- Whether the administration believes there are "inherent or explicit legal authorities that authorize domestic collection of internet search history and website browsing information."
- Whether the government treats domestic information "as presumptively foreign."
- Whether the administration claims "inherent executive power to purchase records that would require a court order to compel production of records under Section 215."
- Whether the Justice Department seeks to obtain Americans' internet browsing history through a variety of means, including via subpoena.
The House lawmakers' letter comes two months after a similar bipartisan query, led by Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah), was sent to the administration, which has yet to reply.
Sean Vitka, senior policy counsel at the advocacy group Demand Progress, said in a statement that "the trail now appears to lead back to rogue legal theories founded upon horrifyingly broad claims of inherent executive authority to conduct mass surveillance domestically."
\u201cIn March, former SSCI Chairman @SenatorBurr said the government had the inherent executive authority to conduct warrantless surveillance at staggering scale, the kind of stuff @Snowden revealed and that Congress never really dealt with. Video: https://t.co/HCXg3u8Mal\u201d— Sean Vitka (@Sean Vitka) 1600997361
"This intelligence surveillance would happen in the absence of the law, the courts, and even the suspicion of wrongdoing," said Vitka. "This is how the government secretly started Stellarwind, the most stunningly illegal surveillance program in recent history... If the government is blanketing the United States in warrantless surveillance, this is how they would--and have--done it."
"We look forward to candid answers about how the government has interpreted the law and how far secret claims of inherent executive authority have embedded foreign intelligence surveillance into our daily lives," Vitka continued. "In the absence of those answers, Burr and [House Intelligence Committee Chairman Rep. Adam] Schiff's unwavering obstruction of real surveillance reform will further isolate them."
Keep ReadingShow Less
If This 'Doesn't Give You Chills I Don't Know What Will': McConnell Patriot Act Expansion Would Hand AG Barr Unprecedented Spy Powers
"These amendments would pretty much guarantee the ability of an incumbent administration to spy on its political opponents without consequence."
May 13, 2020
Sen. Ron Wyden was joined by privacy advocates Wednesday in forcefully condemning a new proposed amendment to the PATRIOT Act put forward by Senate Majority Leader Mitch McConnell that would greatly expand the U.S. attorney general's surveillance powers under FISA.
McConnell's amendment, which the Senate began debating Wednesday as lawmakers took up the reauthorization of the 2001 PATRIOT Act, would explicitly permit the FBI to collect records of Americans' internet search and browsing histories without a warrant. It would also mandate that Attorney General William Barr, and his successors, conduct an annual review of the FBI's submissions into the Foreign Intelligence Surveillance Act (FISA) Court.
"It is open season on anybody's most personal information."
--Sen. Ron Wyden (D-Ore.)
Barr would be permitted to review for "accuracy and completeness" evidence presented to the FISA Court by the FBI regarding potential surveillance targets.
"Under the McConnell amendment, Barr gets to look through the web browsing history of any American--including journalists, politicians, and political rivals--without a warrant, just by saying it is relevant to an investigation," Wyden told the Daily Beast this week, before speaking out against the amendment on the Senate floor.
\u201cMitch McConnell is forcing a Senate vote on his amendment to give Bill Barr warrantless access to Americans\u2019 browsing history. I\u2019ve heard a lot of bad ideas in my lifetime, but this is one of the worst. Tune in as I explain why: https://t.co/r53nm2HxzA\u201d— Ron Wyden (@Ron Wyden) 1589385331
"Typical Americans may think to themselves, 'I've got nothing to worry about, I've done nothing wrong. The government has no reason to suspect me of anything,'" said the senator. "Unfortunately, the question is not whether you did anything, the question is whether a government agent believes they have the right to look at your web searches... It is open season on anybody's most personal information."
"If that doesn't give you chills I don't know what will," Wyden added on social media. "I'm fighting it every step of the way."
Evan Greer, deputy director of the digital privacy group Fight for the Future, was more succinct in her rejection of McConnell's proposal:
\u201cabsolutely.\nthe.\nfuck.\nnot.\u201d— Evan Greer is on Mastodon (@Evan Greer is on Mastodon) 1589310878
An amendment proposed by Wyden and Sen. Steve Daines (R-Mont.), which would have required the Justice Department to show probable cause before collecting data under the PATRIOT Act, was voted down by one vote on Wednesday. Journalist Jeremy Scahill denounced 10 Democratic senators who joined the majority of Republicans in opposing the bill, as well as Sen. Bernie Sanders (I-Vt.), who did not attend the vote.
\u201cThe 10 Democrats who joined GOP in defeating amendment to stop FBI warrantless surveillance of web browser history: Carper, Casey, Feinstein, Hassan, Jones, Kaine, Manchin, Shaheen, Warner and Whitehorse. Joined 2 Republicans & a Democrat in not showing up to vote: Bernie Sanders\u201d— jeremy scahill (@jeremy scahill) 1589392243
Critics raised concern that the McConnell amendment would allow the Trump administration to spy on its political opponents, with Barr giving approval of evidence used to argue in favor of beginning surveillance.
Under the proposal, the FISA Court and its amicus--an attorney appointed to challenge the government's submissions for potential surveillance--would be limited in their ability to question the FBI's reasoning.
McConnell would limit the involvement of an amicus only when the FBI submits an application to "targe[t] a campaign for federal office or an application that targets a United States person when the application relies for its criminal predicate on only the provisions of the Foreign Agents Registration Act."
Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah) proposed an amendment which would require an amicus to challenge evidence presented for targeting "a domestic religious or political organization," a "domestic public official or political candidate," or their staff, according toThe Daily Beast.
"Adversarial process is a cornerstone of our legal system," wrote Neema Singh Guiliani and Billy Easley of the ACLU this week. "Americans expect that when the government makes a claim in a court of law that they aren't the only voice heard in the courtroom."
Critics said the amendment's provision allowing Barr--or any future attorney general--to review evidence presented to the FISA Court is likely a response to the FBI's reasoning for conducting surveillance on President Donald Trump's campaign aide, Carter Page.
Singh Giuliani told The Daily Beast it was "bizarre" to "create an amicus to participate when targeting political candidates, but we're not going to provide that same oversight in cases involving religious organizations, domestic news media or everyday individuals who are facing new or significant civil rights concerns."
"It's hard to look at that amendment and conclude it's intended to really address not just problems exposed by the Carter Page report but the subsequent IG audit," she added.
The progressive group Demand Justice called McConnell's provisions "two of the most cynical attempts to undermine surveillance reform."
"McConnell is literally trying to take a privacy safeguard designed for the press and religious groups and instead give it only to politicians and people suspected of being foreign agents. He's also trying to sneak warrantless surveillance of internet and search histories into an amendment that claims to prohibit it," Sean Vitka, senior policy council for the group, told The Daily Beast.
On Twitter, Wyden wrote that whistleblowers like Dr. Rick Bright and the anonymous person who disclosed the president's attempt to pressure the Ukrainian government into investigating former Vice President Joe Biden could be targeted for surveillance under Barr's expanded powers.
\u201cBill Barr\u2019s top priority as Trump\u2019s AG is consolidation of power by unmasking anyone who makes his client look bad. If McConnell\u2019s amendment to give Barr access to Americans\u2019 browser history passes, whistleblowers are sure to be some of the first people Barr will target.\u201d— Ron Wyden (@Ron Wyden) 1589375097
"These amendments would pretty much guarantee the ability of an incumbent administration to spy on its political opponents without consequence," wrote Charles Pierce at Esquire.
Keep ReadingShow Less
Most Popular