Having come to the realization there may be little hope for renewing the warrantless surveillance program known as Section 702 by the end of the month, Trump administration attorneys now contend there’s a legal basis for continuing the program through next April, despite the widely held assumption it would expire come New Year’s Day.
Debate over potential reforms to the program, enacted under the FISA Amendments Act of 2008, continue in Congress, but have been largely overshadowed by Republican efforts to overhaul the tax code.
The Office of the Director of National Intelligence (ODNI) has acknowledged that the government believes the program could remain active for several months past its supposed expiration date, even if Congress fails to extend it, the New York Times reports. Section 702, which authorizes the government to collect intelligence on foreign targets located outside of the United States, is set to expire by the end of the year.
Critics of Section 702 point out that, while the law prohibits the targeting of US citizens, the program regularly results in the collection of innocent Americans’ communications.
As it is currently written, Congress must reauthorize the program on a yearly basis. But as it was last certified on April 26th, executive branch attorneys argue that the program may remain operational for a full 12-month period. This extension would ostensibly give the intelligence committees an additional four months to discuss potential changes to the program, including, perhaps, new privacy protections for Americans whose communications are routinely swept up by US intelligence agencies.
The program was reauthorized in April this year, instead of at the end of 2016, after the Foreign Intelligence Surveillance Court issued two short-term extensions, giving the National Security Agency (NSA) time to wrestle with how to continue collecting intelligence under the program without constantly skirting the Fourth Amendment. Leaks by former intelligence contractor Edward Snowden had revealed that the NSA were collecting not just emails to and from foreign targets, but the communications of Americans who simply mentioning them in conversation. The NSA referred to these systemic violations as “inadvertent compliance incidents.”
That the program allows government officials to read the content of Americans’ private communications without a warrant has long been a point of contention among privacy advocates—and certain lawmakers. Earlier this year, Sen. Ron Wyden pressed Dan Coats, the director of National Intelligence (DNI), to confirm whether or not the government believes the program authorizes intelligence agencies to collect communications they know to be entirely domestic. That’s classified, he said.
In July, top intelligence and law enforcement officials, including Coats, were asked during a hearing before the Senate Select Committee on Intelligence (SSCI) whether they believed Section 702's blanket authorization allowed the government to compel US tech companies to build so-called “backdoors” into encrypted consumer products, such as iPhones. The officials responded by saying the program authorized the government to “direct” tech companies to provide the government with information and assistance “necessary to accomplish the acquisition.”
Should a tech company refuse to comply with the request, the government said, it may seek an order from the Foreign Intelligence Surveillance Court (FISA) compelling the company to assist. The DNI said as of yet the government has not sought such an order. But it remains unclear whether or not the government has ever requested access to an encryption backdoor citing Section 702—or whether any companies have automatically complied with such a request, if it were made.
Earlier this year, Sen. Wyden introduced an amendment that would have prohibited under Section 702 the acquisition of communications known to be entirely domestic. Only Senators Martin Heinrich and Kamala Harris supported the amendment. About a dozen fellow SSCI members voted against it.
National security reporter Marcy Wheeler wrote on November 15th that the Wyden amendment would have effectively prevented intelligence agencies from collecting—to obtain foreigners’ data—traffic routed through the Tor network, which tens of thousands of Americans use. (Tor is software used to anonymize users and defeat surveillance by encapsulating traffic in layers of encryption and routing it through a series of nodes, called “onion routers.”)
The US government has repeatedly refused to disclose an estimate of how many Americans have had their communications swept up via Section 702 surveillance, and earlier this year announced it has no plans to issue one.
“[W]hen I asked the director of national intelligence whether Section 702 could be used to collect communications the government knows are entirely domestic, he first testified no; then said he was answering a different question than the one I asked; and then said the whole thing was classified.” Sen. Wyden wrote in a recent op-ed for Just Security. “When the government throws a blanket of secrecy over such a fundamental question, it is clear that the public and the Congress are operating in the dark.”