Leading progressive organizations hope to turn the reform of government surveillance programs into a litmus test for 2020 presidential candidates.
In a letter to congressional Democrats, 34 groups, led by the digital rights-focused Demand Progress Action, demand new protections for civil liberties in the reauthorization of a key surveillance law. The groups favor allowing the expiration of Section 702 of the Foreign Intelligence Surveillance Act, which enables the federal government to search the electronic communications of Americans without a warrant.
Given the political difficulty of such a goal, however, the groups are trying to leverage Democrats’ fear of overreach by President Donald Trump to unite the party behind a more limited, but nonetheless sweeping, set of reforms aimed at preventing surveillance of Americans without a warrant.
“The Trump administration has made no secret of its desire to criminalize people of color and activists,” the letter says. “No Democrat should support a law that grants Trump the ability to spy — without a court-issued warrant — on the more than 325 million people that live in this country.”
Section 702, which Congress added to FISA in 2008, allows the attorney general and director of national intelligence to order the surveillance of non-Americans “reasonably believed to be located outside the United States” for the collection of foreign intelligence information.
The provision is the legal basis for two digital data collection programs revealed by former National Security Agency contractor Edward Snowden in June 2013. The NSA uses its Prism program to collect data from Google, Facebook, Apple and Microsoft that is sent to or from a foreigner targeted for national security or intelligence reasons, and its “upstream” collection picks up communications from the international fiber-optic cables that transport phone and internet data across borders.
The law limits data collection to foreigners not on United States soil, but it places no such limits on searching already-collected data. As a result, civil liberties groups say, the provision has been used to create a “back-door” search mechanism granting the government access to data involving U.S. citizens, green-card holders, and foreigners living in the U.S. who corresponded with a targeted foreigner.
Until April, the NSA’s Upstream program had been collecting data on Americans’ whose electronic communications contained the contact information of a targeted foreigner, even if a foreigner targeted for security or intelligence purposes was not involved in the correspondence. That tactic is known as “about” collection.
The NSA discontinued the practice after it could not find a way to maintain it and remain in compliance with FISA court rules permitting the Upstream program.
But were it not for Snowden’s leaks, civil liberties advocates noted, the “about” searching would never have been discovered and stopped. (Snowden argued on Twitter that the cessation of the practice would be “the most substantive of the post-2013 NSA reforms, if the principle is applied to all other programs.”)
For Demand Progress Action ― and allies on the letter, including the American-Arab Anti-Discrimination Committee, the Asian American Legal Defense and Education Fund, Color of Change, and Credo ― the exposure shows that FISA courts alone are not enough to ensure that the federal government respects the constitutional right to privacy enshrined in the Fourth Amendment. Demand Progress Action’s policy arm documented numerous other violations of FISA rules in a September report, making the case that FISA courts have proven incapable of deterring intelligence agency abuses under Section 702.
Section 702 has “grown into a tool so powerful that it is changing the way innocent people speak and associate,” the letter says.
Left unchecked, the federal government, particularly under Trump’s leadership, is liable to abuse its powers in even more pernicious ways, the letter says. It points to intelligence agencies’ historic use of mass surveillance to engage in political persecution against Martin Luther King Jr. and other progressive leaders as an indication of what is possible.
“Surveillance has always been justified on the back of national security concerns, even though on many occasions it has been employed to counter progressive reform movements, and it invariably disproportionately targets communities of color and people working for social change,” the letter says.
The progressive organizations propose far-reaching reforms. They want Congress to write into the law the NSA’s cessation of “about” searches in which neither correspondent is a foreigner based in a different country. Further, they would have Congress explicitly forbid the federal government from accessing the data of U.S. citizens, green-card holders and foreigners living in the United States without a court-issued warrant.
Additionally, they are pressing Congress to force the NSA to disclose how much data it has collected on American citizens, green-card holders and foreigners on U.S. soil, and require the Department of Justice’s Office of Legal Counsel to explain how it is interpreting Section 702.
The groups are also seeking to revise a procedure known as “parallel construction,” in which the government uses secretly collected information against defendants without disclosing to them or courts the origin of the evidence. The practice prevents Americans and foreigners living in the U.S. from challenging evidence prosecutors launder from national security-related searches and later share with other law enforcement authorities.
Finally, the progressive groups are trying to limit the re-authorization of the FISA Act to a single year “so that Congress and the public have the opportunity to re-examine how (and if) the Trump-run surveillance agencies operate under the framework it enshrines.”
“There is a broad set of Democratic activists and voters who are very concerned about affording these sorts of powers to Trump.”
Even under President Barack Obama, civil libertarians had limited success curtailing the authority of the NSA and other intelligence agencies, thanks to post-9/11 laws expanding their powers.
A June 2015 reform entitled the USA Freedom Act transferred the storage of phone data previously held by the NSA to phone companies and required the federal government to petition a federal court to search the cache.
But civil liberties groups, including Demand Progress Action, considered the measure a fig leaf for real reform, arguing that the NSA’s practice of searching personal data on tens of millions of Americans would continue through a different process.
In December 2012, prior to Snowden’s revelations, Congress quietly renewed the 2008 amendments to the FISA Act for five years.
Support for substantial reform of the FISA Act has grown stronger in libertarian wings of both parties, but political backing for the status quo has proven resilient. A bipartisan amendment to the annual defense spending bill that would have barred the NSA from using federal dollars to conduct back-door searches on Americans’ data passed the House twice in 2014 and 2015, before being stripped out in the Senate. In June 2016, following the massacre at the Orlando nightclub, the House defeated the amendment by a narrow margin.
Ahead of the December deadline for reauthorization of the FISA Act, the prospects for deep reforms of the kind advocated by organizations like Demand Progress Action and libertarian conservative outfits like FreedomWorks has grown more remote ― not least because of the Trump administration’s hostility to those efforts. A White House official said in March that the administration supports a “clean reauthorization” free from reforms aimed at buttressing privacy rights.
Attorney General Jeff Sessions, Director of National Intelligence Dan Coats, FBI Director Chris Wray and NSA Director Michael Rogers are likely to make their views known in a classified briefing on Section 702 for members of Congress on Wednesday.
Meanwhile, a group of hawkish Senate Republicans led by Sen. Tom Cotton (R-Ark.) introduced a bill in June that would permanently reauthorize Section 702.
David Segal, executive director of Demand Progress Action, said the group’s effort aims to consolidate Democratic support for reform.
“There is a broad set of Democratic activists and voters who are very concerned about affording these sorts of powers to Trump,” Segal said. “They’ll be watching how everybody votes on this issue with particular attention to people running for president ― Sens. Bernie Sanders, Kamala Harris, Kirsten Gillibrand, Corey Booker and others ― when they consider who has the interests of communities that comprise the Democratic Party in mind.”
Democrats who may have been less sensitive to those concerns under the Obama administration might reconsider now that Trump is president, according to Segal.
“Because they trusted Obama, they helped erect surveillance structures that amount to a turnkey tyranny that Donald Trump can steward,” Segal said. “There’s now an understanding of the danger of having people like Trump and Jeff Sessions having control over these extraordinary powers.”