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.”
The emphasis on interagency consensus, while well-intentioned, has become a structural impediment to bold or innovative policy options. When every agency effectively holds veto power over proposals, the path of least resistance becomes maintaining existing approaches with minor modifications.
The Federation of American Scientists supports H.R. 471, the re-introduction of the Fix Our Forests Act.
As people become less able to distinguish between what is real and what is fake, it has become easier than ever to be misled by synthetic content, whether by accident or with malicious intent. This makes advancing alternative countermeasures, such as technical solutions, more vital than ever before.
Throughout this phase of work, there are many actions hiring managers and staffing specialists can take to streamline the process and improve the quality of eligible candidates. Most importantly, hiring managers and staffing specialists can collaborate within and across agencies to expedite and simplify the process.