By ELLEN NAKASHIMA – The Washington Post
A measure granting the government expansive power to intercept electronic communications in the United States without a warrant is set to expire this month, setting up a sharp debate in the Senate over how to balance privacy against national security.
The government uses the measure, contained in a law known as the FISA Amendments Act, to intercept e-mails and telephone calls of foreigners located overseas under a blanket approval issued once a year by a special court. But communications of U.S. citizens talking with the foreigners also are being scooped up.
The intelligence community argues that the measure is essential to protect against foreign threats and has made renewing the law its top legislative priority. The House approved a five-year extension in September by a vote of 301 to 118. The Senate must vote by the end of the year or the authority expires.
Opposition has surfaced among a small, bipartisan group of senators worried that Americans engaged in harmless communications with foreigners could be monitored without a warrant or other privacy protections.
Under the law, a special court whose proceedings are secret issues a yearly certification that permits the government to monitor the e-mails and phone calls of foreigners if the government can satisfy the court that its procedures will target people located overseas and ensure the privacy of U.S. citizens caught in the monitoring. Targeting the communications of a U.S. citizen or anyone inside
the United States requires a warrant.
One of the complaints of the senators and civil liberties advocates is that the government refuses to disclose the number of U.S. citizens and residents whose communications have been collected or reviewed under the law.
"You have this potentially large pile of communications and nobody knows how many Americans are in that pile," Sen. Ron Wyden, D-Ore., a member of the Senate Intelligence Committee, said in an interview.
Wyden has threatened to block a vote on reauthorization unless Senate leaders agree to a debate on changes that would add safeguards for U.S. persons.
Twelve other senators, including conservative Sen. Mike Lee, R-Utah, have joined Wyden in pushing to require the government to provide an estimate of how many communications involving U.S. citizens have been collected under Section 702 of the statute. The senators also want the government to obtain a court-approved warrant before deliberately searching electronic data for individual Americans.
"The government ought not be able to search through that database for information about a U.S. citizen without a court order because that becomes akin to a warrantless wiretap," Lee said in an interview.
The law was passed in 2008 as an update to the 1978 Foreign Intelligence Surveillance Act. It expanded the government's power to conduct electronic surveillance on U.S. soil for foreign targets overseas without individual warrants.
The Obama administration, like the George W. Bush administration, has defended the program as vital to gathering quickly information about the plans and identities of terrorists and other threats.
"There is no question that we've gotten valuable information that has led to intelligence and national security successes," said Robert Litt, general counsel for the Office of the Director of National Intelligence, in a press call this year. "This would really create a risk for our security if we lost this capability." He cited "specific incidents both involving terrorist attacks and other kinds of threats where we have been able to thwart them or gain insight into them as a result of this collection activity," but he declined to elaborate.
Litt said estimating the number of communications by U.S. citizens collected "incidentally" under FISA cannot be done with any degree of accuracy. But he said the law is not "a tool for spying on Americans."
Jameel Jaffer, American Civil Liberties Union deputy legal director, countered that the law provides the government with too much leeway. "It's a law that gives the government almost unchecked power to monitor Americans' communications," he said in an interview. "It's indefensible that anyone's even thinking about reauthorizing it without asking questions about the law's use."
The ACLU sued the government over the law's constitutionality. A federal judge threw out the suit, saying the plaintiffs lacked standing, but the U.S. Court of Appeals for the 2nd Circuit reinstated it. The case was argued in October before the Supreme Court, which is considering only whether the plaintiffs have standing to proceed with their challenge.
The procedures involved in monitoring foreign communications remain largely hidden. Officials in the communications industry said the government gives companies the e-mail addresses, phone numbers, user names and other identifiers of foreign targets to tap.
The lists could run to dozens or hundreds of identities, said the officials, who spoke on the condition of anonymity to discuss sensitive details. The companies divert electronic copies of the communications in real time to a special FBI facility in Northern Virginia. In the case of e-mail, the government may receive virtual replicas of people's entire in-boxes, the officials said.
The National Security Agency stores the data for translation and analysis. Automated tools help analysts find links in the communications among, say, the e-mails of five members of a suspected terrorist cell.
"Some sniffer is looking for similarities among their contacts," said a former federal official, who spoke on the condition of anonymity because of the topic's sensitivity. "If all five are talking to a sixth, that sixth is going to be a person of interest."
The law allows collection of communications across a broad spectrum of "foreign intelligence" topics and threats, which include nuclear proliferation, foreign diplomats and extremist groups. Critics say the wide range increases the chances that Americans who are not targets of surveillance will have their communications picked up.
Intelligence officials say a warrant requirement would be burdensome and unnecessary, given that the information has been lawfully collected. They note that they have regularly briefed Congress on the program's operations.
Their reports to Congress have identified no cases of intentional or systematic misuse, according to a Senate Judiciary Committee review. But Wyden said the special court has already found that the government's efforts to protect the privacy of U.S. citizens failed on at least one occasion.