Secrecy News

Loophole in Law May Allow Warrantless Surveillance of Americans

Members of the Senate Intelligence Committee are divided over whether there is a loophole in current law which would permit government agencies to monitor the communications of American citizens without any kind of warrant or other judicial authorization.

The dispute was presented but not resolved in a new Senate Intelligence Committee report on the Foreign Intelligence Surveillance Act Amendments Act (FAA) Sunsets Extension Act, which would renew the provisions of the FISA Amendments Act through June 2017.

“We have concluded… that section 702 [of the Act] currently contains a loophole that could be used to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens,” wrote Senators Ron Wyden and Mark Udall.

But Senator Dianne Feinstein, the Committee chair, denied the existence of a loophole.  Based on the assurances of the Department of Justice and the Intelligence Community, she said that the Section 702 provisions “do not provide a means to circumvent the general requirement to obtain a court order before targeting a U.S. person under FISA.”

It is unclear from the public record which of these conflicting positions is more likely to be correct.

Senators Wyden and Udall offered an amendment to explicitly prohibit searches of U.S. persons’ communications that are incidentally gathered in the course of FISA surveillance of foreign persons abroad unless there is a warrant or other authorization permitting surveillance of that specific person, but their amendment was voted down in Committee by 13-2.

“We have sought repeatedly to gain an understanding of how many Americans have had their phone calls or emails collected and reviewed under this statute, but we have not been able to obtain even a rough estimate of this number,” Sens. Wyden and Udall wrote.  An Inspector General review is now underway to determine whether it is feasible to estimate the number, Sen. Feinstein noted.

See FAA Sunsets Extension Act of 2012, Senate Report 112-174, June 7, 2012.

The first three semi-annual reports on compliance with the procedures of Section 702 of the FISA Amendments Act were recently released in redacted form by the Office of the Director of National Intelligence.

Those reports generally found no evidence of “any intentional or willful attempts to violate or circumvent the requirements of the Act.”  On the other hand, “certain types of compliance incidents continue to occur, indicating the need for continued focus on measures to address underlying causes, including the potential need for additional measures.”

7 thoughts on “Loophole in Law May Allow Warrantless Surveillance of Americans

  1. The development and/or existence of the technology which creates the necessity for analyzing whether a loophole in this kind of law exists, must be made a primary issue in the civil liberties conversation. The kind of medieval parsing of legal concepts, as can be seen here, will be insufficient to protect the interests about which Wyden and Udall are concerned, so long as the technology which makes such invasions of privacy possible escapes unnoticed.

  2. Are we going to remain a free democratic society or other? This is what we should be concerned with. We are not socialist or communist.

  3. Any public servant that is willing to stand-up against the unPatriot Act or warrentless survelliance is a true statesman as laws are made to protect only the guilty.

  4. We are well on our way to a military coup in this country. When reductions in the “defense” budget are rejected by policy makers without discussion and some propose a minimum percentage be established (4% of GDP has been proposed by a military spokesman) we have a run-away military establishment. When was the last time anyone discussed our 865 military facilieries in 40 countries or proposed closing any or all to assist in balancing our budget?
    Our all volunteer army has become a separate institution and it’s profile is less and less like the general population. Eighty per cent of the Army is recruited from five states! Poor states. You don’t even need a high school diploma to join. Our military is no longer representative of the genral population; it’s no longer a “citizens army”. Our choice is simple: bankruptcy or a military coup. Watch what’s happening in Egypt.

  5. I have to ask J. O’Connor in what branch and during what period she served in the military to sound off so vociferously about its current state. If the military today is not representative of the “genral” population, it’s because our service men and women today are better educated, more patriotic, and more closely attuned to real-world situations than the “genral” population.
    Regarding closing “any or all” of our bases, one need only look at the statistics for the five or six rounds of BRAC (Base Realignment and Closing) already accomplished or under way.

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