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New controversies as Trump passes US Foreign Intelligence Surveillance Act

The amended Foreign Intelligence Surveillance Act, which seeks to legitimise US surveillance on foreigners, has been signed off by president Trump

The US Senate has ended debate, by 60 votes to 38, on renewing parts of the Foreign Intelligence Surveillance Act. This reinforces a vote in the House of Representatives last week in favour of renewing the amended Act by 256 votes to 164. The Act was signed into law by president Donald Trump at 20:53 (US time) last Friday night (19 January) – too late for last week’s Federal Register, the official record.

The purpose of the Foreign Intelligence Surveillance Act is to legitimise US spying on foreigners outside the US. It prohibits surveillance – in theory, if not in practice – of US citizens or people resident in the US.

The debate in Washington on the renewal of the Act has been largely about the likely effects of the amended Act in the US, with no reported debate on the impact of the Act’s renewal on those targeted by the legislation – foreigners. 

US critics of the amended Act say it allows US intelligence agencies and the FBI to use information “incidentally” collected on US citizens, via foreign contacts, without a warrant. Four senators – Ron Wyden, Steve Daines, Parick Leahy and Elizabeth Warren, a mixture of Democrats and Republicans – have indicated they will continue to resist renewal, despite the Senate vote.

Wyden, a Republican, tweeted: “I’m heading to the floor to vote NO on cutting off debate on a #FISA #Section702 bill that would allow the government to conduct warrantless searches of your private communications.”

Wyden subsequently indicated that he will still try to force a final debate on the issue next week, but US sources are sceptical that he will have any impact. 

House of Representative speaker Paul Ryan said on the floor, quoted by CNN: “This is about foreign terrorists on foreign soil. That’s what this is about, so let’s clear up some of the confusion here.”

Much of the debate in both the Senate and the House of Representatives was conducted in secret, fuelling civil liberties concerns in the US.

The Congressional debate took place with an argument raging in the background about alleged Russian interference in last year’s US presidential election.

Trump’s tweets

President Donald Trump twice tweeted contradictory views about the issue as the Senate debate continued.

“‘House votes on controversial FISA ACT today.’ This is the act that may have been used, with the help of the discredited and phony Dossier, to so badly surveil and abuse the Trump Campaign by the previous administration and others?” Trump tweeted.

A couple of hours later, he corrected his apparent criticism of the Act: “With that being said, I have personally directed the fix to the unmasking process since taking office and today’s vote is about foreign surveillance of foreign bad guys on foreign land. We need it! Get smart!”

A row exploded over the weekend when mainly Republican members of Congress and the Senate reacted to a still classified report that is rumoured to contain details of how the Obama administration used the 702 loophole to spy on Trump’s election campaign last year. Republicans are demanding that the full memorandum be released to the public. This had not happened as this article was published.

US intelligence support

The section 702 amendments to the Act had the full support of the US intelligence community. The heads of the CIA, the Office of the Director of National Intelligence (ODNI), the FBI, the Justice Department and the NSA called the programme “vital” in a rare joint statement in December.

“There is no substitute for Section 702 (of FISA),” they said. “If Congress fails to reauthorise this authority, the intelligence community will lose valuable foreign intelligence information, and the resulting intelligence gaps will make it easier for terrorists, weapons proliferators, malicious cyber actors and other foreign adversaries to plan attacks against our citizens and allies without detection.”

There was no debate on assurances given to an EU delegation by the US Commerce Department late last year that the US would cease the mass surveillance of citizens’ data in the EU, which the US believes is authorised by FISA.

A spokesperson for EU justice commissioner Vera Jourova gave Computer Weekly a carefully worded comment: “We are following this process closely and are aware of the adoption. We will carefully analyse the decision before commenting. Generally, we have always made the point that for the Commission (and the Privacy Shield) it is crucial that there is no lowering of any personal data protection standards in the FISA re-authorisation.”

The Article 29 working party of EU data regulators, who were part of the European Commission delegation to the US, failed to respond. The UK’s Department for Digital, Culture, Media and Sport, which is generally responsible for data protection in the UK, also declined to comment.

Trump announced by Twitter that he had signed the FISA Amendments Reauthorization Act of 2017 into law. The current authorisation will expire in December 2023.

In an official statement, Trump said Section 702 had proved to be among the nation’s most effective foreign intelligence tools. The new Act requires the FBI to seek a warrant from the FISA court to conduct searches of data collected on US citizens for reasons unconnected with national security. It will not impede the FBI’s ability to “connect the dots” and look for national security threats, he said.

What is Section 702 of FISA?

Section 702 of the Foreign Intelligence Surveillance Act, as its name implies, was introduced to allow the US to collect foreign intelligence, including emails and phone records, from non-Americans located outside the US.

The US government routinely collects and searches the online communications of non-Americans, using “upstream” and “Prism” (now renamed “downstream”) surveillance. 

Upstream surveillance involves collecting communications as they travel over the internet backbone, for example through taps on internet cables, and downstream surveillance (formerly Prism) involves collection of communications from technology companies such as Google, Facebook and Yahoo.

As the law is written, the intelligence community cannot use Section 702 programmes to target Americans, who are protected by the Fourth Amendment’s prohibition on unreasonable searches and seizures.

 But the law gives the intelligence community space to target foreign intelligence in ways that inherently and intentionally sweep in Americans’ communications.

The US government can and does collect the communications of Americans who communicate with targeted individuals located abroad. It also collects other Americans’ communications that happen to be caught as part of NSA’s targeting of foreigners.

That means the government casts a spying net that routinely catches the communications of law-abiding Americans, who are protected by the Fourth Amendment’s privacy protections.

Section 702 is a surveillance authority passed as part of the FISA Amendments Act in 2008, which amended the Foreign Intelligence Surveillance Act of 1978.

Congress has to renew Section 702 every few years. It was last renewed in 2012 and is set to expire at the end of 2017. If Congress does not pass a bill to reauthorise Section 702, the surveillance programmes under the law will have to shut down.

Civil liberties communities are hopeful that the looming Section 702 sunset will force lawmakers to consider the privacy concerns of their constituents and rein in the surveillance programmes under the law.

Source: Electronic Frontier Foundation

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