Foreign Intelligence Surveillance Act (FISA)
Top News
- Irish High Court Orders DPC to Move Forward in Facebook Investigation: The Irish High Court today issued an order in a follow-on case to Irish Data Protection Commissioner v. Facebook and Schrems ("Schrems II") and, as a result, the investigation into Facebook's U.S.-EU data transfers will move forward. The case arises from a complaint filed with the DPC in Ireland against Facebook by privacy activist Max Schrems in 2013 alleging that the company violated EU law when it transferred personal data to the U.S. (where the company is obliged to provide access to the government). The case has since been referred two separate times to the highest court in Europe (the CJEU), and has led to the invalidation of both the U.S.-EU Safe Harbor Agreement and the U.S.-EU Privacy Shield Agreement. The CJEU in the Schrems II decision last year remanded the case to the Irish DPC to determine whether Facebook violated the law and whether it was necessary to block Facebook's U.S.-EU data transfers. The DPC later issued a Preliminary Draft Decision to Facebook and laid out procedures for the inquiry. Both Facebook and Schrems challenged the DPC procedures. The DPC agreed in a settlement with Schrems that it would complete the investigation into his original complaint. The Irish High Court today rejected Facebook's challenge to the DPC inquiry, and both the Schrems complaint and this new DPC inquiry against Facebook will move forward. EPIC participated as an amicus curiae in Schrems II, arguing that U.S. Surveillance law does not provide adequate privacy protections or remedies for non-U.S. persons abroad. (May. 14, 2021)
- Coalition Amicus Brief: Civil Litigants Must Be Able to Challenge FISA Surveillance: EPIC has joined a group of organizations across the political spectrum—EFF, Americans for Prosperity, the Brennan Center, FreedomWorks, and TechFreedom—to urge a federal appeals court to revive a challenge to an NSA surveillance program. A lower court judge in the case, Wikimedia v. NSA, found that Wikimedia could not demonstrate that its communications had actually been intercepted under the Upstream surveillance program—and that further litigation was barred for national security reasons. The amicus brief argues that “it is critical that those directly affected by mass foreign intelligence surveillance be able to obtain judicial review” because “FISA is broken.” EPIC has participated as amicus in several previous cases challenging FISA surveillance, including Smith v. Obama and Clapper v. Amnesty International. EPIC also brought the first challenge to the NSA telephone records surveillance program, In re EPIC, in the U.S. Supreme Court. (Jul. 9, 2020)
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- Senate Amends FISA Reauthorization Bill, Sends Back to the House » (May. 15, 2020)
The Senate voted today to pass an
amended version of the
USA FREEDOM Reauthorization Act of 2020, which was passed by the House in March. The bill would end the NSA’s bulk telephone metadata program and make further reforms to the Foreign Intelligence Surveillance Act. The Senate agreed this week to further amendments by Senators Lee and Leahy that expand FISA protections, but rejected amendments proposed by Senators Wyden and Daines that would have protected Americans’ internet browsing and search histories. The adopted
Leahy/Lee amendment strengthens the role of “amici curiae,” who are independent, expert advisors to the Foreign Intelligence Surveillance Court, by increasing their access to information, their power to raise issues with the Court, and the number of cases they are appointed in. Since amendments were adopted, the bill now returns to the House of Representatives for consideration. Members of both parties have expressed support for reform of the controversial NSA surveillance program. EPIC closely
tracks the use of FISA authority. EPIC has advocated for significant
FISA reforms, and recently advised Congress to
limit Section 702 surveillance and to allow
Section 215 to expire.
- Inspector General Report Uncovers Widespread FISA Abuse » (Apr. 1, 2020)
A
report from the Department of Justice's Inspector General has uncovered widespread abuse of FISA surveillance authority by the DOJ. The Inspector General "identified apparent errors or inadequately supported facts" in each of the 25 surveillance applications it reviewed. The report follows an
earlier investigation by the Inspector General which found the FBI personnel investigating Russian interference in the 2016 presidential election "fell far short of the requirement in FBI policy that they ensure that all factual statements in a FISA application are 'scrupulously accurate.'" EPIC closely
tracks the use of FISA authority. EPIC has advocated for significant
FISA reforms for more than a decade, and recently advised Congress to
reform Section 702 of FISA and to
sunset Section 215 of the Patriot Act. Members of both parties have recently
expressed support for reforming U.S. surveillance authorities.
- Senate Passes Short-term Extension of Surveillance Authorities » (Mar. 17, 2020)
The Senate voted late Monday to
extend certain national security authorities for 75 days that were set to expire. Last week the House
passed a bill that included several reforms.
EPIC and other civil liberties groups backed a bill that would establish a warrant requirement for location data and internet browsing history, increase transparency, and strengthen the
Privacy and Civil Liberties Oversight Board. Members of both parties have expressed support for reform of the controversial NSA surveillance program. EPIC closely
tracks the use of FISA authority. EPIC has advocated for significant
FISA reforms, and recently advised Congress to
limit Section 702 surveillance and to allow
Section 215 to expire.
- Congress Considers Reforms as Surveillance Authorities Set to Expire » (Mar. 10, 2020)
Congress is reviewing proposals to
reform the Foreign Intelligence Surveillance Act. Several bills have been introduced, including a
bill backed by EPIC and other civil liberties groups that would establish a warrant requirement for location data and internet browsing history, increase transparency, and strengthen the
Privacy and Civil Liberties Oversight Board. Members of both parties have expressed interest in reform of the controversial NSA surveillance program. Even the FISA court has
criticized the program, following
abuses uncovered by the Inspector General. EPIC closely
tracks the use of FISA authority. EPIC has advocated for significant
FISA reforms, and recently advised Congress to
limit Section 702 surveillance and to allow
Section 215 to expire. The Section 215 program is scheduled to sunset on March 15.
- Privacy Board Supports End of NSA Call Record Program » (Feb. 27, 2020)
The Privacy and Civil Liberties Oversight Board has issued a
report emphasizing the minimal value of the NSA's call details records program. The Board recommended the end of the program, which the NSA
suspended last year after
concerns about compliance with legal standards established in the US Freedom Act. According to the PLCOB report, the government spent $100 million on the program, yet opened only one non-duplicative investigation. EPIC recently joined 44 civil liberties organizations in
backing the end of the NSA surveillance program. In 2013, EPIC filed a
petition with the U.S. Supreme Court, In re EPIC, challenging the lawfulness of the NSA's bulk collection of American's telephone records.
- House Judiciary Committee to Consider Surveillance Reform » (Feb. 25, 2020)
The House Judiciary Committee will
consider this week the USA FREEDOM Reauthorization Act of 2020, a bill that will repeal authority to access call detail records, declassify opinions of the FISA court, and improve the Privacy and Civil Liberties Oversight Board. EPIC has joined 44 civil liberties organizations in
support of similar legislation. But the bill does not address surveillance conducted under Section 702, concerning non-US persons. EPIC recently
advised Congress to reform Section 702 and to end Section 215 surveillance of Americans.
- EPIC Joins Civil Liberties Groups, Backs Surveillance Reform » (Feb. 12, 2020)
EPIC has joined 44 civil liberties organizations in
endorsing the Safeguarding Americans' Private Records Act of 2020 (
S. 3242 /
H.R. 5675), sponsored By Senator Wyden [D-OR] and, in the House, Rep. Lofgren [D-CA]. The bills would repeal the NSA's bulk telephone surveillance program, establish a warrant requirement for location data and internet browsing history, increase transparency, and strengthen the
Privacy and Civil Liberties Oversight Board. EPIC recently
advised Congress to reform Section 702 of FISA and to sunset Section 215 of the Patriot Act.
- Intelligence Court Rebukes FBI » (Dec. 19, 2019)
The
Foreign Intelligence Surveillance Court this week criticized the FBI for misleading judges, following a scathing report from the
Inspector General. In a rare
public order, the Court explained that the Bureau's representations were "antithetical to the heightened duty of candor" that the government must satisfy in surveillance applications. Presiding Judge Collyer wrote, "The frequency with which representations made by F.B.I. personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other F.B.I. applications is reliable." The Court ordered the FBI to propose new procedures by January 10, 2020. EPIC has advocated for significant
FISA reforms for almost 20 years, and recently advised Congress to
limit Section 702 of FISA and to
sunset Section 215 of the Patriot Act.
- Inspector General's Report Highlights Need for FISA Reforms » (Dec. 17, 2019)
The Inspector General's
review of
FISA applications for the FBI's investigation into Russian interference in the 2016 Presidential Election raises new concerns about the use of the surveillance authority. The Inspector General concluded that the FBI investigation was properly predicated and there was no evidence of political bias or improper motivation. However, the IG Report also detailed significant misrepresentations and errors made in the investigation designated "Crossfire Hurricane." The Report found that "FBI personnel fell far short of the requirement in FBI policy that they ensure that all factual statements in a FISA application are 'scrupulously accurate.'" EPIC has advocated for significant
FISA reforms for more than a decade, and recently advised Congress to
reform Section 702 of FISA and to
sunset Section 215 of the Patriot Act.
- EPIC to Congress: Do Not Renew Section 215 Surveillance Program » (Sep. 18, 2019)
In advance of a
hearing on the Foreign Intelligence Surveillance Act, EPIC has sent a
statement to the House Judiciary Committee urging Congress to end the NSA's phone record collection program, known as "Section 215." Section 215 of the Patriot Act,
according to White House legal advisors including now Supreme Court Justice Brett Kavanaugh, allowed the NSA to collect in bulk the telephone records of Americans. In 2013, following the Snowden disclosures, EPIC filed a
petition with the Supreme Court, challenging the lawfulness of Section 215. Congress found the 215 program was ineffective and passed the USA Freedom Act to limit data collection. NSA has since acknowledged significant
compliance problems with the reformed program, and the Director of National Intelligence
confirmed that the limited collection program was suspended. Section 215 will sunset unless Congress chooses to renew the program.
- EPIC Comments on Third Annual Privacy Shield Review » (Jul. 15, 2019)
EPIC provided
comments to the European Commission to inform the third annual review of the
EU-U.S. Privacy Shield, a framework that permits the transfer of Europeans' personal data to the U.S. EPIC detailed the latest developments in the U.S., including the
failure to reform bulk surveillance under Section 702 of FISA, the absence of comprehensive federal privacy law and a data protection authority, and an
executive order to collect data about non-citizens from across the federal government. EPIC also applauded
appointments to the PCLOB and the U.S. endorsement of the
OECD AI Principles. The Commission
approved Privacy Shield last year, but urged the U.S. to adopt privacy legislation and to join the
International Privacy Convention. The European Commission will make a determination about whether to renew the Privacy Shield this fall.
- U.S. Courts Release 2018 FISA Report » (Jul. 11, 2019)
The Administrative Office of the U.S. Courts has
issued the 2018 report on activities of the
Foreign Intelligence Surveillance Court. The 2018 report reveals a significant decline in the number of total applications to the FISC. There were 1,318 FISA applications in 2018, down by three hundred applications from the total of 1,614 in 2017. The scrutiny of FISA applications by the Court remained steady after an
uptick last year: 985 orders were granted, 261 orders were modified, 42 orders were denied in part, and 30 applications were denied in full. EPIC
testified before Congress in 2012 on the need to improve review of FISA applications. EPIC Senior Counsel Alan Butler also
recently appeared before Europe's highest court to provide expert analysis on U.S. surveillance law, including FISA authorities.
- Privacy Board to Review Use of Biometrics at Airports, Privacy of Passenger Data, and FBI Surveillance » (Jun. 26, 2019)
The
Privacy and Civil Liberties Oversight Board has announced three new oversight projects. The PCLOB reviews federal agency programs to ensure they do not diminish privacy and civil liberties. The Board said it
will review: (1) the use of biometrics, such as facial recognition, in airports; (2) how the FBI queries data collected under the Foreign Intelligence Surveillance Act's Section 702, including searches for US person information called "backdoor searches"; and (3) oversight of passenger identity databases used by airlines. Earlier this year, EPIC sent a
statement to the Board urging limits on the government use of facial recognition and and end to backdoor searches. In 2012, EPIC sent a
detailed statement to PCLOB outlining priorities for the agency. In 2016, EPIC awarded former PCLOB Board Member Judge Patricia Wald with the
EPIC Champion of Freedom Award.
- Annual Surveillance Report Reveals Upturn in U.S. Persons Call Record Searches, Unmasking » (Apr. 30, 2019)
According to the Office of Director National Intelligence 2018
report, the use of information on U.S. persons collected under
Foreign Intelligence Surveillance Act increased. The instances in which the NSA "unmasked" - revealed a U.S. person's identity in foreign intelligence data - to another agency grew from 9,529 to 16,721. In 2018, the government also searched domestic call detail records for U.S. persons at five times the rate in 2017, rising from 31,196 to 164,682. Notably, the government notifications to defendants of the use of FISA information in criminal proceedings increased from 7 in 2017 to 14 in 2018. EPIC previously
testified before Congress on the need for more public reporting about the use of FISA for domestic surveillance. Several of EPIC's recommendations, including greater detail on government surveillance activities, were incorporated in the USA Freedom Act.
- U.S. Defends Privacy Shield, But Fails to Comply with Privacy Commitments » (Sep. 5, 2018)
The Department of Commerce has
told the President of the European Parliament that the US is in compliance with the
Privacy Shield, a pact that permits US companies to obtain the personal data of Europeans. The statement follows a
resolution of Parliament to suspend the international arrangement if the U.S. did not comply in full by September 1. The Parliament cited the
Cambridge Analytica data breach, the reauthorization of
FISA Section 702 without reform, the failure to stand up
the PCLOB, the passage of the
CLOUD Act, and the absence of a Privacy Shield ombudsman. The Commerce Department
disputed the Parliament's findings but failed to show progress on the issues identified. EPIC highlighted similar problems with data protection in the United States in recent
comments to the European Commission. Almost six months have passed since the FTC
reopened the investigation of Facebook's compliance with the
2011 consent order, which followed a
complaint from EPIC and other consumer privacy organizations.
- NSA Inspector General Issues First Unclassified Report » (Jul. 25, 2018)
The NSA's
Office of Inspector General issued the
first unclassified
semi-annual report to Congress on the
National Security Agency. The report describes the internal watchdog's audits, studies, and investigations of the NSA's activities. Among other findings, the OIG uncovered improper searches through U.S. persons' data collected under the
Foreign Intelligence Surveillance Act, as well as "many instances of noncompliance" with rules to secure NSA networks, systems, and data. In 2012, EPIC
testified before Congress on the need for better reporting on the use of FISA authorities. EPIC also
routinely highlights reporting on federal surveillance under the Wiretap Act. In
EPIC v. NSA, EPIC obtained the
Presidential Decision Directive, outlining the agency's authority for domestic surveillance.
- EPIC, Coalition Urge Compliance With Freedom Act Transparency Requirements » (May. 31, 2018)
EPIC and a coalition of privacy and civil liberties groups
urged the Office of the Director of National Intelligence to abide by the transparency requirements of the
USA FREEDOM Act. The Act ended the NSA's bulk collection of domestic call detail information. The Act also requires the public reporting of the number of unique identifiers gathered under the
Foreign Intelligence Surveillance Act. A related
letter to the House Judiciary Committee urged the Committee to oversee the reporting requirement. In 2012, EPIC
testified before Congress on the need for better reporting on the use of FISA authorities. Several of EPIC's recommendations were incorporated in the USA FREEDOM Act.
- Annual ODNI Report Reveals Upturn in US Surveillance » (May. 7, 2018)
According to the Office of Director National Intelligence
2017 report, the number of
Foreign Intelligence Surveillance Act orders to collect call records more than tripled last year, from 151 million records in 2016 to 534 million in 2017. In 2012, EPIC
testified before Congress on the need for more public reporting concerning the use of FISA authorities. Several of EPIC's recommendations, including better reporting on government surveillance activities, were incorporated in the
USA FREEDOM Act.
- EPIC Comments to UN Highlight Privacy Flaws in US Surveillance, Consumer Protection » (Apr. 6, 2018)
EPIC has submitted
input to the
UN Office of the High Commissioner for Human Rights for an
upcoming report on the right to privacy in the digital age. The OHCHR is soliciting information for a report to
Human Rights Council on the right to privacy around the world. EPIC's comments detail shortcomings in US privacy law, including the
CLOUD Act, the reauthorization of
FISA Section 702, and FTC's
failure to enforce consumer privacy guarantees. EPIC also highlighted the need for the
Special Rapporteur on Privacy to promote fundamental privacy rights, particularly
Article 12 of the Universal Declaration of Human Rights.
- EPIC Joins Call for Increased Oversight of Intelligence Agencies » (Feb. 9, 2018)
EPIC and other leading open government organizations
urged Congress to promote transparency and accountability of the Intelligence agencies. The groups called for the release of annual public reports, all significant opinions by the Foreign Intelligence Surveillance Court, and an accounting on the number of Americans subject tp foreign intelligence surveillance. EPIC previously
called on lawmakers to require federal agencies to obtain a warrant before searching information about Americans in foreign intelligence databases. Through a
Freedom of Information Act lawsuit, EPIC obtained a
report detailing the FBI's failure to follow procedures regarding the use of foreign intelligence data for a domestic criminal investigation. EPIC has also
testified in Congress on reforms to the
Foreign Intelligence Surveillance Act.
- Congress Renews Controversial Surveillance Measure, EU Impacted » (Jan. 18, 2018)
In a decision that could jeopardize relations with Europe, Congress has
renewed "Section 702" of the
Foreign Intelligence Surveillance Act, which permits broad surveillance of individuals outside of the United States. The
FISA Amendment Reauthorization Act also permits government
surveillance of Americans and restarts the controversial
"about" collection program. Congress rejected
updates, including limits on data collection, that would preserve a
privacy agreement between Europe and the United States. The European Court of Justice will also soon
decide whether to allow data transfers from Ireland to the United States. EPIC
served as the US NGO amicus curiae in that case.
- EPIC v. NSD: EPIC Obtains Secret Report on "Backdoor Searches," FBI's Failure to Follow Procedures » (Jan. 9, 2018)
As the result of a Freedom of Information Act lawsuit
EPIC v. NSD, EPIC has obtained a
report from the Department of Justice National Security Division detailing the FBI's use of foreign intelligence data for a domestic criminal investigation. Section 702 of the
Foreign Intelligence Surveillance Act authorizes the surveillance of foreigners located abroad. However, the FBI can also
use this data to investigate Americans. The report obtained by EPIC also shows that the FBI analyst failed to follow internal guidance to notify superiors of the search, raising questions about whether the FBI is accurately
reporting these searches. The
USA Rights Act, now pending in Congress, would require a federal agency to obtain a warrant to search foreign surveillance data for information on Americans.
- Senators Leahy and Lee Introduce USA Liberty Act, Reform for FISA Spying » (Nov. 20, 2017)
Senator Patrick Leahy (D-VT) and Senator Mike Lee (R-UT) have introduced the
USA Liberty Act to reform surveillance under Section 702 of the
Foreign Intelligence Surveillance Act. The Leahy-Lee bill would close the
"backdoor search" loophole by requiring a probable cause court order before the government can review the contents of Americans' communications. The Leahy-Lee bill also codifies the
ban on collecting "about" communications, mandates the appointment of amicus curiae for review of the surveillance programs, and establishes new reporting requirements. In a Freedom of Information Act lawsuit,
EPIC v. NSD, EPIC is
seeking the release of a Foreign Intelligence Surveillance Court report detailing the FBI’s use of section 702 data for domestic criminal purposes.
- EPIC v. DOJ: Court Orders DOJ to Defend Withholding of FISA Reports » (Nov. 7, 2017)
A federal court,
ruling in an EPIC FOIA
lawsuit, has
ordered the Department of Justice to defend the agency's refusal to release portions of its
Foreign Intelligence Surveillance Act (FISA) reports. The semiannual reports, prepared for Congressional oversight committees, summarize significant FISA Court decisions and include the total number of FISA applications filed by the government and the number of U.S. persons targeted for surveillance. Though the court ruled that the DOJ can withhold some of the material requested by EPIC, the court found multiple "inconsistencies in the redactions that the government must address." Previously, EPIC's FOIA request and lawsuit led to the release of secret
documents about the government's use of pen registers to collect records of private communications.
- Senators Introduce USA Rights Act, Back Significant Reforms to FISA Spying » (Oct. 24, 2017)
Eleven senators introduced bipartisan
legislation to reauthorize the
Foreign Intelligence Surveillance Act with significant new civil liberties protections. Among other reforms, the USA Rights Act
codifies the
ban on collecting "about" communications, prohibits collection of domestic communications, expands the powers of the Civil Liberties Oversight Board, and requires independent amicus review during the
FISC's annual authorization. The bill does not establish
certain protections sought by Europeans during the recent
Privacy Shield review. Senate Intelligence Committee Chair Richard Burr
bill would expand 702 surveillance authorities. EPIC and a coalition of organizations recently
urged the markup hearing on the proposal be opened to the public.
- EPIC, Coalition Call for Public Hearings on Surveillance Reform Proposals » (Oct. 20, 2017)
EPIC joined a coalition of privacy and civil liberty organizations
urging the Senate Intelligence Committee to open to the public any markup hearing on proposals to reauthorize Section 702 of the
Foreign Intelligence Surveillance Act, which authorizes the surveillance of foreigners located abroad. "To the greatest degree possible, the consideration of legislation pertaining to Section 702...Should take place in public," the groups made clear in the letter to Senate Intelligence Committee leaders. EPIC has previously backed open public hearing on important security matters, include
consideration of the
Cyber Intelligence Sharing and Protection Act of 2013.
- EPIC, Coalition Call for End to Warrantless Section 702 Searches of Americans' Data » (Oct. 3, 2017)
EPIC and a coalition of over 50 organizations
called on lawmakers to require federal agencies to obtain a probable cause warrant before searching foreign intelligence databases for information about U.S. citizens and residents. Section 702 of the
Foreign Intelligence Surveillance Act allows agencies - without a warrant and in a broad range of circumstances - to search for information about Americans among communications collected for foreign intelligence purposes. In a letter to leaders of the House Judiciary Committee, the groups explained that this practice "undermine[s] constitutional protections create an unacceptable loophole to access Americans' communications in criminal and foreign intelligence investigations alike." EPIC and a coalition also recently
urged Director of National Intelligence Dan Coates to uphold a promise to give a public estimate of how many Americans are caught up in NSA surveillance of foreign targets. EPIC is currently pursuing a Freedom of Information Act
request for a government report to the
Foreign Intelligence Surveillance Court about FBI search of Section 702 data for domestic criminal investigations.
- Senator Feinstein Proposes Reforms to Broad Spying Authority » (Jun. 9, 2017)
Senator Dianne Feinstein, the former chair of the Senate Intelligence Committee, today
outlined reforms to
Section 702 surveillance authority. The law, which allows the NSA "PRISM" and "Upstream" surveillance programs, is set to expire at the end of this year. Senator Feinstein would end permanently the NSA's "about" searches, expand the amicus role at the intelligence court, and require the continued sunsetting of FISA authorities created in the
The FISA Amendments Act of 2008. In 2012, EPIC
testified before Congress on the need to establish better oversight for Section 702 prior to renewal.
- EPIC Seeks Release of FISA Order for Trump Tower » (Mar. 6, 2017)
EPIC has filed an urgent
FOIA request with the Department of Justice for the release of the warrant for wiretapping the Trump Tower in New York city. The President has charged that President Obama "had [his] wires tapped in Trump Tower." EPIC has filed a formal Freedom of Information request of the public release of any applications filed under
"FISA" for wiretapping in Trump Tower. Such an order would have been filed by the National Security Division of the Justice Department and approved by the
Foreign Intelligence Surveillance Court. The complete text of the Foreign Intelligence Surveillance Act is available in the
Privacy Law Sourcebook (EPIC 2016) at the
EPIC Bookstore.
- EPIC Urges House Committee To Ensure Transparency, Public Reporting in Surveillance Law » (Mar. 1, 2017)
In advance of a
hearing on Section 702 of the Foreign Intelligence Surveillance Act, EPIC has sent a
letter to the House Judiciary Committee urging increased transparency and new public reporting of the Government's surveillance activities. EPIC also highlighted that Section 702 is the central focus of multiple current
legal challenges to international data transfer agreements occurring abroad. Section 702, which authorizes the bulk surveillance on the communications of non-U.S. persons, sunsets on December 31, 2017. EPIC
testified before the Committee during the 2012 FISA reauthorization hearings.
- Senator Leahy Calls for FISA Reforms » (May. 13, 2016)
The Senate Judiciary Committee held a
hearing on the FISA Amendments Act, a law that grants the government broad surveillance powers over Internet communications. The Act, commonly referred to as "Section 702,: is the basis for the NSA’s “
PRISM” program. EPIC
testified before the House Judiciary Committee in 2012 on the need to limit the scope of Section 702 surveillance and to improve transparency of the Foreign Intelligence Surveillance Court. US and EU NGOs have since
called for the end of the section 702. This week Senator Patrick Leahy (D-VT)
stated that "additional reforms are needed to protect Americans’ privacy, and restore global trust in the U.S. technology industry."
- Intelligence Court Skeptical of Some FISA Applications » (May. 3, 2016)
The Department of Justice has published the
2015 FISA report, which summarizes the use of the
Foreign Intelligence Surveillance Act. The report also details the number of applications rejected or modified by the
FISA Court (FISC). Overall, the Government’s applications for FISA warrants has
declined since 2003 but there was a slight uptick this year with 1,456 orders granted. A significant number of orders were modified by the FISC. The FISC modified 80 orders and the Government even withdrew one application. Prior to the
USA FREEDOM Act, which limited bulk collection under section 215, the FISC modified many of those orders.
- EPIC Joins Call for Transparency on Number of Americans Caught in NSA Surveillance » (Nov. 2, 2015)
EPIC, joined by over 30 other organizations,
urged the Director of National Intelligence, James Clapper, to disclose data on how many Americans are caught up in NSA surveillance of foreign targets. Americans’ communications are incidentally collected under Section 702 of the
Foreign Intelligence Surveillance Act, and the FBI searches this data without a warrant or judicial oversight. EPIC, in
testimony before Congress and
comments to the Privacy and Civil Liberties Oversight Board, has repeatedly called for greater oversight and transparency of surveillance authorities.
- Surveillance Court Ignores Court Ruling, Reauthorizes NSA Bulk Collection Program » (Jul. 1, 2015)
The
Foreign Intelligence Surveillance Court has
reauthorized the collection of domestic telephone records for 180 days. The Surveillance Court ignored the recent
decision of the Federal Court of Appeals, which held that the NSA bulk collection program is unlawful. In 2012, EPIC
testified before the House Judiciary Committee on the need to reform the Surveillance Court. In 2013, EPIC filed a petition in the Supreme Court,
In re EPIC, arguing that the NSA program was unlawful. In 2014, EPIC and a broad coalition
urged the President to end the NSA surveillance program. Congress then passed the
Freedom Act to end program, but the FISC didn't get the memo.
- House Passes Surveillance Reform Bill, Deadline Looms for Senate » (May. 14, 2015)
The House of Representatives has
passed the
USA Freedom Act of 2015. The bill would end the NSA's controversial
domestic telephone record collection program--a program the Second Circuit Court of Appeals recently
ruled was unlawful. The Freedom Act would also establish new transparency requirements for
the Foreign Intelligence Court, recommended by EPIC in
testimony before the House Judiciary Committee in 2012. EPIC also
opposed renewal of the NSA's Section 215 orders and
petitioned the Supreme Court to suspend the program. The Senate is expected to take up the bill before the June 1 expiration of Section 215 of the Patriot Act.
- Federal Appeals Court Strikes Down NSA Bulk Record Collection Program » (May. 7, 2015)
The Second Circuit Court of Appeals
ruled today that the NSA's
telephone record collection program exceeds legal authority. The government claimed that it could collect all records under the Section 215 "relevance" standard. But the court rejected that argument and held that "such an expansive concept of 'relevance' is unprecedented and unwarranted." The conclusion mirrors the argument EPIC, and a coalition of technical expert, legal scholars, and former members of the Church Committee made in
Petition to the Supreme Court in 2013. EPIC explained in its petition, "It is simply not possible that every phone record in the possession of a telecommunications firm could be relevant to an authorized investigation." The Second Circuit found that Section 215 does not "authorize anything approaching the breadth of the sweeping surveillance at issue here."
- Schneier: Over 700 Million People Taking Steps to Avoid NSA Surveillance » (Dec. 17, 2014)
Famed technologist and EPIC Advisory Board member Bruce Schneier
pushed back against media claims that Edward Snowden's revelations about the NSA have had little impact on Internet users. A
recent global survey found that 39% of Internet users who have heard of Snowden have taken steps to protect their online privacy. Some news articles have characterized these users as
"merely 39%" and
"only 39%." But Schneier did the math and found that Snowden’s impact has been far from insignificant: "706 million people have changed their behavior on the Internet because of what the NSA and GCHQ are doing." A recent
Pew survey also indicates that the NSA revelations have had a dramatic impact on Internet users. Last year, EPIC filed a
petition to the U.S. Supreme Court to stop the NSA's collection of domestic telephone records, following the release of the "Verizon Order." For more information, see
EPIC: In re EPIC,
EPIC: Smith v. Obama, and
EPIC: Foreign Intelligence Surveillance Act Reform.
- British Court Upholds Mass Surveillance by UK Spy Agency » (Dec. 8, 2014)
The
Investigatory Powers Tribunal, which reviews complaints of unlawful surveillance by Britain's intelligence agencies,
ruled that mass collection of online communications is legal. The complaint was brought by several privacy rights groups in the UK and focused on GCHQ's electronic surveillance program, TEMPORA, and information the UK spy agency obtained through NSA's PRISM and Upstream programs. The privacy rights groups plan to appeal the decision to the European Court of Human Rights. EPIC previously challenged the NSA's mass surveillance of U.S. phone records in a 2013
petition to the Supreme Court. EPIC's petition argued that the Foreign Intelligence Surveillance Court exceeded its authority when it ordered Verizon to turn over records on all of its customers to the NSA. The EPIC petition was supported by legal scholars and former members of the Church Committee. For more information, see
In re EPIC and
EPIC: Foreign Intelligence Surveillance Act Reform.
- Senator Leahy Calls on the President to End Bulk Collection of Phone Records » (Dec. 4, 2014)
Today Senator Patrick Leahy (D-VT)
urged President Obama to end the dragnet collection of U.S. telephone records under Section 215 of the Patriot Act. The current authorization for the NSA's bulk collection program
expires on Friday, December 5, 2014. Senator Leahy's comments follow the recent efforts to pass the USA FREEDOM Act of 2014, which would end the NSA's surveillance program. Senator Leahy said that ending the reauthorization of the program "would not be a substitute for comprehensive surveillance reform legislation - but it would be an important first step." In June EPIC, joined by many organizations,
urged the President and Attorney General to end the bulk collection program. And in 2013 EPIC
petitioned the Supreme Court, arguing that a special surveillance court exceeded its authority when it ordered Verizon to turn over records on all of its customers to the NSA. For more information, see
In re EPIC and
EPIC: Foreign Intelligence Surveillance Act Reform.
- EPIC Seeks Reports on FISA Court Decisions » (Nov. 24, 2014)
In a Freedom of Information Act
lawsuit against the Department of Justice, EPIC filed a
Motion for Summary Judgment on Friday arguing that the agency improperly withheld surveillance reports sought by EPIC. The semiannual reports, prepared for Congressional oversight committees, summarize significant FISA Court decisions and include the total number of FISA applications filed by the government and the number of U.S. persons targeted for surveillance. They are similar to reports that are routinely disclosed to the public. EPIC argued that the "FISA Pen Register" reports should also be disclosed because they describe topics of "utmost importance to the public and are necessary to inform the ongoing debate over current surveillance authorities." EPIC maintains a summary of all the annual FISA statistics published by the Attorney General. For more information, see
EPIC v. DOJ: FISA Pen Register Reports and
EPIC: FISA Court Orders.
- Senate Republicans Block US Surveillance Reform » (Nov. 19, 2014)
An effort
led by Senator Patrick Leahy (D-VT) to pass the
USA FREEDOM Act failed on a narrow procedural vote last night. The FREEDOM Act would have ended the NSA's bulk collection of US telephone records. The bill would also improve oversight and accountability of the Foreign Intelligence Surveillance Act. Last year, EPIC
petitioned the Supreme Court to suspend the bulk collection of Americans' telephone records. EPIC's petition was supported by dozens of legal scholars and former members of the Church Committee. EPIC also
testified in Congress in support of improved reporting for domestic surveillance activities. For more information, see
EPIC: Foreign Intelligence Surveillance Act Reform and
In re EPIC.
- Documents Obtained by EPIC Lawsuit Show NSA’s Internet Metadata Program Was Sharply Criticized By FISA Judges While Congressional Oversight Lagged for Years » (Aug. 12, 2014)
In a FOIA lawsuit against the Department of Justice, EPIC has obtained
many documents about the NSA's Internet Metadata program. These include the Government's
original FISA application seeking authorization to collect data from millions of e-mails, as well as declarations from NSA officials describing the program. The documents show that FISA Court Judge John Bates
chastised the agency for "long-standing and pervasive violations of the prior [court] orders in this matter.'' The FISA Court first authorized the program in 2004, but the
documents obtained by EPIC show that the legal justification was not provided to Congress until 2009. The documents also reveal that the DOJ withheld information about the program
in testimony for the Senate Intelligence hearing prior to the reauthorization of the legal authority. The program was shut down in 2011 after a
detailed review. For more information, see
EPIC v. DOJ (FISA Pen Register) and
EPIC: Foreign Intelligence Surveillance Court.
- Senator Leahy Introduces Bill to End NSA Bulk Record Collection » (Jul. 29, 2014)
Today Senator Patrick Leahy (D-VT), joined by Democratic and Republican Senators, introduced
legislation to end the NSA's practice of collecting telephone records of Americans. Leahy described the bill as "the most significant reform of government surveillance authorities since Congress passed the USA PATRIOT Act 13 years ago." The USA Freedom Act would require require the government to specify specific "search terms" to obtain telephone record information. The government would have to demonstrate that it has a "reasonable, articulable suspicion" that the search term is associated with a foreign terrorist organization. The bill also requires a comprehensive transparency report for the use of FISA surveillance authorities. However, the bill
exempts the FBI from certain reporting requirements. Civil liberties organizations
support the bill. EPIC previously filed a
Petition for Mandamus with the U.S. Supreme Court, seeking to end the bulk collection of American's phone records. EPIC's petition was supported by legal scholars, technical experts, and former members of the Church Committee. For more information, see
In re EPIC and
EPIC: FISA Reform.
- Federal and State Wiretaps Up 5% in 2013 According to Annual Report, But Stats Don't Support FBI Claims of "Going Dark" » (Jul. 29, 2014)
The Administrative Office of the U.S. Courts has issued the
2013 Wiretap Report, detailing the use of surveillance authorities by law enforcement agencies. This annual report, one of the most comprehensive issued by any agency, provides an insight into the debate over surveillance authorities and the use of privacy-enhancing technologies. In 2013, wiretap applications increased 5%, from 3,576 to 3,395. Authorities encountered encryption during 41 investigations, but encryption prevented the government from deciphering messages in only 9 cases. This statistic contradicts
claims that law enforcement agencies are "going dark" as new technologies emerge. Of the 3,074 individuals arrested based on wiretaps in 2013, only 709 individuals were convicted based on wiretap evidence. EPIC has repeatedly
called on greater transparency of FISA surveillance, citing the Wiretap Report as a model for other agencies. EPIC also maintains a comprehensive index of the annual wiretap reports and FISA reports. For more information, see
EPIC: Title III Wiretap Orders,
EPIC: Wiretapping, and
EPIC: Foreign Intelligence Surveillance Act.
- House Adopts Weakened NSA Reform Bill, Senators Now Look to Improve Privacy and Transparency Protections » (May. 23, 2014)
The U.S. House of Representatives
has voted to adopt a modified
USA "FREEDOM" Act. The bill no longer prohibits bulk collection of communications records. Other key provisions were also removed. Senator Leahy said that the bill is "an important step towards reforming" surveillance authorities, but expressed disappointment that the current version "does not include some of the meaningful reforms contained in the original" bill. In 2013 EPIC filed a
Petition to the Supreme Court seeking to end bulk collection of telephone call records. EPIC also testified before the House in 2012 that the FISA should not be renewed without adoption of new reporting requirements. For more information, see
EPIC: FISA and
EPIC: FISA Reform.
- House Judiciary Committee to Consider Bill to End Bulk Surveillance, Improve NSA Oversight » (May. 5, 2014)
The House Judiciary Committee has
scheduled a markup of the USA Freedom Act. The proposed
"Manager's Amendment", sponsored by James Sensenbrenner (R-WI), would prevent bulk collection of phone records and other business records, and would limit the scope of phone record searches. The bill would also (1) limit the collection of US persons communications by the NSA's PRISM program, (2) require public reports on the use of FISA surveillance, (3) require declassification of significant FISA Court opinions, and (4) create a public advocate at the FISA Court. In 2012, EPIC
testified before the House Judiciary Committee on the need for public reports and the declassification of significant FISC opinions. In 2013, EPIC filed a
petition with the Supreme Court, alleging that the bulk collection of telephone record was unlawful. For more information, see
EPIC: FISA Reform and
In re EPIC.
- Annual FISA Report Shows Decrease in Surveillance Orders, Questions About Scope Remain » (May. 1, 2014)
The Department of Justice has published the
2013 FISA Report. The brief report provides summary information about the government's use of the Foreign Intelligence Surveillance Act. In 2012 the Foreign Intelligence Surveillance Court granted 1,789 FISA orders and 212 "Section 215" orders. In 2013, there were 1,588 requests to conduct FISA surveillance, with 34 modifications. The FISC also granted 178 business record orders under Section 215, with 141 modified by the court. The significant number of modified orders indicates that the government's initial applications are too broad. For example, the controversial NSA Metadata program, was authorized by the surveillance court under a
modified order. It is possible that in 2013 the court authorized other bulk collection programs. For more information, see
EPIC: FISC Orders 1979-2014 and
EPIC: FISA Graphs.
- EPIC Obtains Secret Attorney General Reports on Electronic Surveillance » (Mar. 19, 2014)
As a result of an FOIA lawsuit, EPIC has obtained copies of the
Attorney General Reports on the government's electronic surveillance activities. These reports have been submitted to Congress every six months since 2001 but have never before been disclosed to the public. These reports include new details about government collection of telephone and Internet records. The reports include the number of US persons targeted for "Pen Register" surveillance under the Foreign Intelligence Surveillance Act. The reports also contain noncompliance incidents and significant foreign intelligence court opinions, but those details have been withheld by the Justice Department. The documents obtained by EPIC also show that the Justice Department told Congress that the collection of telephone subscriber information would decrease, even after the section 215 bulk collection program began. The case is EPIC v. Dept. of Justice, No. 13-961. For more information, see
EPIC v. DOJ - FISA Pen Registers and
EPIC: FISA Stats.
- In FOIA Lawsuit, EPIC Obtains Secret Reports on Data Collection » (Mar. 3, 2014)
In a Freedom of Information Act
lawsuit, EPIC has obtained
reports that detail the number of times the Surveillance Court authorized the use of techniques that gather the telephone numbers and metadata of phone customers and Internet users. The previously secret reports obtained by EPIC cover the period between 2000 and 2013. The reports reveal a dramatic increase in the use of these techniques in 2004 and then a significant reduction in 2008, likely the consequence of a shift to other investigative techniques. The documents show that nearly all applications to the Surveillance Court were approved without modifications. In 2013, EPIC petitioned the Supreme Court to end the bulk telephone record collection program. Former members of the Church Committee and dozens of legal scholars supported the EPIC petition. For more information see:
EPIC v. Department of Justice - Pen Register Reports,
EPIC: Foreign Intelligence Surveillance Court Orders 1979-2012, and
In re EPIC.
- Federal Communications Commission Seeks Public Comment to Protect Phone Record Privacy » (Jan. 7, 2014)
The Federal Communications Commission has
invited public comments on a
petition requesting the FCC to rule that the sale of consumer phone records to the government is a violation of the federal Communications Act. EPIC joined the petition, which was organized by Public Knowledge. In 2013, EPIC
urged the FCC to determine whether AT&T violated the Communications Act when it sold private consumer call detail information to the Drug Enforcement Administration and Central Intelligence Agency. In 2013 EPIC also
wrote to the FCC to explain that Verizon had likely violated the Communications Act when it disclosed telephone records to the NSA. Public comments on the petition are due January 17, 2014 and reply comments are due February 3, 2014. For more information, see
EPIC: CPNI (Customer Proprietary Network Information), and
EPIC: Foreign Intelligence Surveillance Act.
- Senate Confirms Judge Wald for Privacy Oversight Board » (Dec. 13, 2013)
The Senate
confirmed the reappointment of Judge Patricia M. Wald to the
Privacy and Civil Liberties Oversight Board. Judge Wald's current term was set to expire next month, but President Obama re-nominated her on March 21, 2013. Last year, EPIC recommended that the Oversight Board, consistent with its mandate, pursue a broad agenda, including (1) suspension of the Fusion Center Program ; (2) limiting closed-circuit television surveillance; (3) eliminating the use of body scanners; (4) establishing privacy regulations for drones; (5) improving Information Sharing Environment (ISE) and Suspicious Activity Reporting (SARS) Standards; and (6) Privacy Act adherence. More recently, EPIC
addressed the Board at a
workshop on NSA Surveillance. And in response to a public rulemaking, EPIC also provided
extensive comments on a proposed rule governing the Board's Freedom of Information Act practices. The Board adopted nearly all of EPIC's recommendations on transparency. For more information, See
EPIC: Foreign Intelligence Surveillance Act and
EPIC: Open Government.
- Presidential Task Force to Recommend Changes at NSA » (Dec. 13, 2013)
The
Review Group on Intelligence and Communications Technologies,
established to recommend surveillance reforms, will send a final report to the President this Sunday. According to one
news article, the task force will recommend putting a civilian leader in charge of NSA, separating out the code-breaking "Information Assurance Directorate," and splitting the U.S. Cyber Command off into a separate military unit. The Review Group will also recommend new limits on the NSA’s ability to search telephone call records, proposing that telephone records be stored with a third party rather than the NSA. The group will also recommend safeguards for the data of European citizens, and restrictions on the use of National Security Letters. Earlier this year, EPIC filed a
petition with the U.S. Supreme Court, supported by legal scholars and former members of the Church Committee, arguing that the NSA bulk collection program was unlawful. For more information, see
EPIC: Foreign Intelligence Surveillance Act,
EPIC: Foreign Intelligence Surveillance Act Reform, and
EPIC: In re EPIC.
- EPIC Supports Petition Urging FCC to Protect Phone Record Privacy » (Dec. 11, 2013)
EPIC has joined a
petition to the Federal Communications Commission, organized by Public Knowledge, that asks the FCC to rule that the sale of consumer phone records to the government is a violation of the federal Communications Act. Last month, EPIC
urged the FCC to determine whether AT&T violated the Communications Act when it sold private consumer call detail information to the Drug Enforcement Administration and Central Intelligence Agency. And in June, following the initial Snowden disclosure, EPIC
wrote to the FCC to explain that Verizon had likely violated the Communications Act when it disclosed telephone records to the NSA. EPIC has also long supported the FCC's consumer privacy enforcement authority, filing amicus briefs in significant cases, including
US West v. FCC and
NCTA v. FCC, to defend the agency’s privacy regulations. For more information, see
EPIC: CPNI (Customer Proprietary Network Information),
EPIC: Foreign Intelligence Surveillance Act.
- EPIC Asks Federal Court to Require Immediate Release of Government Surveillance Reports » (Dec. 9, 2013)
EPIC has filed
a Freedom of Information Act lawsuit for the reports that detail the NSA's collection of call record information from US telephone companies. Citing the Department of Justice's failure to comply with EPIC original
EPIC's FOIA Request and the urgency to inform the public, EPIC has also filed a
motion for a preliminary injunction, asking a federal judge to rule within 20 days on EPIC’s legal claims. EPIC is seeking the reports that the Justice Department has routinely prepared for Congress but never made available to the public. The Foreign Intelligence Surveillance Court, relying on these reports, has
approved the bulk, suspicionless collection of Internet and e-mail data, which is now widely debated. For more information, see
EPIC: EPIC v. DOJ (Pen Register / Trap and Trace).
- EPIC Urges FCC to Investigate AT&T’s Practice of Selling Consumer Phone Records » (Nov. 18, 2013)
In a
letter to Federal Communications Commission Chairman Tom Wheeler, EPIC urged the FCC to determine whether AT&T violated the Communications Act when it sold private consumer call detail information to the
Drug Enforcement Administration and
Central Intelligence Agency. EPIC's letter follows an
earlier letter where EPIC asked the FCC to resolve whether Verizon violated the Communications Act when it
released consumer call detail information to the National Security Agency. EPIC's letter also informed the Commission that the National Association of Regulatory Utility Commissioners has issued a
draft resolution underscoring the crucial role of the FCC in protecting consumer information. For more information, see
EPIC: In re EPIC and
EPIC: Foreign Intelligence Surveillance Act.
- Leahy and Sensenbrenner Introduce USA FREEDOM Act » (Oct. 29, 2013)
The Democratic Chair of the Senate Judiciary Committee and the Republican author of the Patriot Act have introduced the
USA FREEDOM Act, which would reform the Foreign Intelligence Surveillance Act and limit NSA surveillance activities. A bi-partisan coalition, including 17 Senators and 70 Members of Congress, have joined as original co-sponsors. Key provisions of the FREEDOM Act increase transparency of intelligence activities, prevent end-runs around the FISA Court, and improve public reporting. In 2012 EPIC
testified before the House Judiciary Committee about the need to reform FISA and to improve oversight of the FISA court. The FREEDOM Act also ends the controversial
bulk phone records collection program. EPIC has brought a
challenge in the Supreme Court to the phone records program, explaining that it is unlawful under current law. For more information, see
EPIC: In re EPIC and
EPIC - Foreign Intelligence Surveillance Act.
- Government Responds to EPIC's Supreme Court Challenge of NSA Telephone Record Program » (Oct. 14, 2013)
The Solicitor General has filed a
response to EPIC's challenge to the NSA's telephone record collection program. In July, EPIC
petitioned the Supreme Court to vacate the
order of the Foreign Intelligence Surveillance Court that requires Verizon to turn over all telephone records to the NSA. EPIC argued that the Intelligence Court exceeded its legal authority and could not compel a telephone company to disclose so much personal information unrelated to a foreign intelligence investigation. Legal scholars and former Members of Congress filed briefs in support of EPIC's petition, including
privacy and national security scholars,
constitutional scholars,
federal courts scholars, and
members of the Church Committee. Congressman James Sensenbrenner, the primary author of the Patriot Act, has
said that the telephone records collection program was never authorized by Section 215. For more information, see
In re EPIC.
- Senator Leahy Urges FISA Reform at Georgetown Law » (Sep. 25, 2013)
Speaking at a
conference hosted by the Georgetown University Law Center, the Chairman of the Senate Judiciary Committee
called for an end "to the bulk collection of Americans' phone records." Senator Leahy said "the system set up in the 1970s to regulate the surveillance capabilities of our Intelligence Community is no longer working. We must recalibrate." Senator Leahy has introduced
bipartisan legislation that would end the telephone record collection program, reduce secret law, and improve the structure of the Foreign Intelligence Surveillance Court. The Senate Judiciary Committee will hold an
oversight hearing next week on the Foreign Intelligence Surveillance Act. EPIC has filed a
petition with the US Supreme Court, arguing that the bulk collection of telephone toll records is unlawful. For more information, see
EPIC - In re EPIC.
- Senators Call for Public Report by IC Inspector General on NSA Surveillance » (Sep. 24, 2013)
A bipartisan group of Senators, including the Chairman and Ranking Members of the Senate Judiciary Committee, have
called for a full-scale review of the use of surveillance authorities by the intelligence community. The Senators emphasized that the findings and conclusions of this review be made public to "help promote greater oversight, transparency, and public accountability." The requested report would address activities conducted under Section 215 of the USA PATRIOT Act and Section 702 of the FISA, which includes the
collection of the telephone call records of hundreds of millions of Americans. Specifically, the report would review the use and implementation of 215 and 702, the applicable minimization procedures, any improper use of the authorities, and examine the effectiveness over the 2010-2013 period. EPIC is currently challenging the order for bulk collection of domestic call records in its
Petition for Writ of Mandamus in the U.S. Supreme Court. For more information, see
In re EPIC and
EPIC: FISA Reform.
- Foreign Intelligence Court Releases Controversial Opinion on Domestic Telephone Records Program » (Sep. 20, 2013)
The
Foreign Intelligence Surveillance Court (FISC) has released an
Opinion, justifying the NSA's telephone record collection program. In the Opinion, Judge Claire Eagan states that "there is no Fourth Amendment impediment to the collection" of all domestic call detail records. Judge Eagan also concluded that all domestic call detail records are "relevant" under Section 215 because "individuals associated with international terrorist organizations use telephonic systems to communicate" and because the government argued that bulk collection is 'necessary to create a historical repository of metadata' in order to identify 'known and unknown operatives. This FISC opinion was issued more than a month after EPIC filed its
Mandamus Petition challenging the NSA domestic surveillance in the U.S. Supreme Court. The Eagan opinion has also been
criticized by legal scholars. For more information, see
In re EPIC.
- EPIC Meets with President's Intelligence Review Group » (Sep. 9, 2013)
EPIC President Marc Rotenberg and EPIC Advisory Board Member Steve Aftergood met today with the
Review Group on Intelligence and Communication Technology. The President
tasked the panel with the responsibility to assess whether the "United States employs its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust." EPIC submitted
detailed recommendations and included copies of
EPIC's Supreme Court petition, arguing that the current domestic surveillance program is unlawful, as well as
EPIC's Congressional testimony on the FISA Amendments Act and
EPIC's 2010 letter to the Foreign Intelligence Surveillance Court concerning reform of FISA procedures. The panel will accept comments from the public until October 4, 2013. Comments are to be sent to
[email protected], which oddly is the domain of the current Director of National Intelligence.
- New Surveillance Reports for Intelligence Community » (Aug. 30, 2013)
The Director of National Intelligence has
announced that the Intelligence Community will release annually "aggregate information concerning" the use of national security authorities. The reports will include the use of both FISA and National Security Letter legal authorities. EPIC has previously
recommended improved reporting of FISA activities, similar to the
wiretap reports issued by the Administrative Office of the U.S. Courts.
News reports indicate that the Intelligence Community paid Internet companies $394 m in 2011 to provide customer data to the US government. For more information, see
EPIC: FISA Reform.
- President Announces Intelligence Review Group, EPIC Presses for FISA Reform » (Aug. 28, 2013)
President Obama met this week with the members of a newly formed group of experts to review intelligence and communications technologies. The group consists of computer security advisor Richard Clark, former CIA Director Michael Morell, and legal scholars Geoffrey Stone, Cass Sunstein, and Peter Swire. The White House
said the group would advise the President on how "the United States can employ its technical collection capabilities in a way that optimally protects our national security and advances our foreign policy while respecting our commitment to privacy and civil liberties, recognizing our need to maintain the public trust, and reducing the risk of unauthorized disclosure." This week, EPIC contacted each of the review group members to provide important materials regarding the protection of privacy and civil liberties. EPIC sent to the Review Group members copies of
EPIC's Supreme Court petition, arguing that the current domestic surveillance program is unlawful, as well as
EPIC's Congressional testimony on the FISA Amendments Act and
EPIC's 2010 letter to the Foreign Intelligence Surveillance Court concerning reform of FISA procedures. For more information, see
EPIC: FISA Reform.
- FISA Court: NSA Violated Fourth Amendment and the FISA » (Aug. 22, 2013)
A newly released
opinion by the
Foreign Intelligence Surveillance Court found that the NSA violated the Fourth Amendment and the
Foreign Intelligence Surveillance Act when it acquired tens of thousands of wholly-domestic Internet communications. According to the opinion of the former Presiding Judge of the FISA Court, the NSA acquired more than 250 Million Internet communications per year. Roughly 9% of these communications are obtained via "upstream collection" and more than 50,000 each year contain domestic communications. The FISC found that NSA's targeting and minimization procedures were not reasonable under the Fourth Amendment given the large number of wholly domestic communications obtained. The FISC also found that NSA's minimization procedures violated the FISA, and required that the agency adopt additional protections to ensure privacy. For more information, see
EPIC: Foreign Intelligence Surveillance Court.
- FISA Court Renews Unlawful Surveillance Program, DOJ Defends Program » (Jul. 22, 2013)
According to the Director of National Intelligence, on July 19, 2013 the Government "filed an application with the Foreign Intelligence Surveillance Court seeking renewal of the authority to collect telephony metadata in bulk, and that the Court renewed that authority." In a separate filing, in a July 18 response to a
challenge brought by the ACLU, the Department of Justice
said that a federal district court in New York could not overturn the order of the FISA court. And in a July 16
letter to Congressman Sensenbrenner the Department asserts that "because the telephony metadata must be available in bulk to allow the NSA to identify records of terrorist communications, there are 'reasonable grounds to believe' that the data is relevant to an authorized investigation. EPIC has recently filed a
petition with the US Supreme Court, challenging the lawfulness of the NSA domestic surveillance program. For more information, see
EPIC - In re Electronic Privacy Information Center.
- EPIC Speaks to Oversight Board, Former Judge Questions FISC » (Jul. 10, 2013)
EPIC, in a prepared
statement, addressed the Privacy and Civil Liberties Oversight Board regarding NSA surveillance under the Patriot Act and the Foreign Intelligence Surveillance Act at day long
workshop. Retired Judge
James Robertson, who served on the FISA Court, told the panel that he was "stunned" by the news that the government was collecting all of the telephone records of Americans. EPIC, which has recently filed a challenge to the domestic surveillance program with the Supreme Court, recommended increased public reporting for FISA and new limitations on the authority of the FISA court. EPIC previously provided
recommendations to the Board for future work. Several of the recommendations were incorporated in the Board's semi-annual
report. For more information, see
EPIC: Foreign Intelligence Surveillance Act and
EPIC: NSA Petition.
- Federal and State Wiretaps Up 24%, Primary Target Mobile Devices According to 2012 Report » (Jun. 28, 2013)
The Administrative Office of the United States Courts has issued the the
2012 Wiretap Report. The annual report, provides comprehensive data on all federal and state wiretap applications, including the types of crimes investigated, as well as the costs involved and whether arrests or convictions resulted. In contrast,
the annual report from the Foreign Intelligence Surveillance Court provides almost no information about a surveillance authority that is routinely directed toward the American public. According to the 2012 Wiretap Report, 3,395 intercept orders were issued in 2012. Of these orders, 3,292 (97%) targeted "portable devices" and 7 were "roving" taps to target individuals using multiple devices. The vast majority (87%) of wiretaps were issued in narcotics investigations, though some involved multiple offenses. In 2012, installed wiretaps were in operation for an average of 39 days, 3 days below the average in 2011. Encryption was reported for 15 wiretaps in 2012 and for 7 wiretaps conducted during previous years. In four of these wiretaps, officials were unable to decipher the plain text of the messages. This is the first time that jurisdictions have reported that encryption prevented officials from obtaining the plain text of the communications since the Administrative Office began collecting encryption data in 2001.There were 3,743 arrests related to these intercepts, which resulted in 455 (12%) convictions. EPIC maintains a comprehensive index of the annual wiretap reports and FISA reports. For more information, see
EPIC: Title III Wiretap Orders - Stats,
EPIC: Wiretapping, and
EPIC: Foreign Intelligence Surveillance Act.
- Senator Leahy Introduces Legislation to Limit NSA Domestic Surveillance » (Jun. 25, 2013)
Senator Patrick Leahy (D-VT), joined by several other Senators, has introduced a
bill that will amend certain provisions of the USA PATRIOT ACT and the FISA Amendments Act to address recent revelations about domestic surveillance by the National Security Agency. The
provisions of the bill will increase the threshold for the NSA to obtain domestic metadata and require court-approved minimization procedures. In addition, the bill will move up expiration dates on surveillance authorities to June 2015. In a
statement, Senator Leahy said, "these are all commonsense, practical improvement that will ensure that the broad and powerful surveillance tools being used by the Government are subject to appropriate limitations, transparency, and oversight." EPIC recommended similar proposals in
testimony last year before the House Judiciary Committee. For more information, see
EPIC: Foreign Intelligence Surveillance Act and
EPIC: NSA Petition.
- NSA Targeting and Minimization Procedures Released » (Jun. 21, 2013)
The Guardian has posted the procedures used by the National Security Agency to
target non-US citizens under the Foreign Intelligence Surveillance Act, as well as the
minimization procedure for information collected about US citizens. The documents indicate that "[a] person whose location is not known will be presumed to be a non-United States person," and that the NSA maintains databases of the telephone numbers, email accounts, and other identifiers of US citizens. EPIC recently
petitioned the NSA to suspend its domestic surveillance pending public comment. Last year, in testimony for the House Judiciary Committee, EPIC
urged Congress not to reauthorize the FISA Amendments Act until adequate oversight procedures were in place. For more information, see
EPIC: Foreign Intelligence Surveillance Act and
EPIC: NSA Petition.
- EPIC Calls on FCC to Investigate Unlawful Disclosure of Consumer Phone Records » (Jun. 12, 2013)
In a
letter to Federal Communications Commission Chairwoman Mignon Clyburn, EPIC urged the FCC to determine whether Verizon violated the Communications Act when it released consumer call detail information to the National Security Agency. In response to an unprecedented Foreign Intelligence Surveillance Court
order which focused on solely domestic communications, Verizon released telephone customer information to the NSA, including telephone numbers and time and call duration. Congress explicitly charged the Commission with investigating unauthorized disclosures of consumer call detail information. EPIC's letter stated that Verizon violated legal protections for consumer phone records when it disclosed consumer information in response to a facially invalid order. For more information, see
EPIC: Foreign Intelligence Surveillance Act,
EPIC: Clapper v. Amnesty Int'l, and
EPIC: USA Patriot Act.
- Senators Push For Release of Foreign Intelligence Surveillance Court Orders » (Jun. 12, 2013)
A bipartisan group of senators, led by Senator Jeff Merkley (D-OR) and Senator Mike Lee (R-UT), has
proposed a bill that would declassify the opinions of the Foreign Intelligence Surveillance Court. In 2012
testimony before the House Judiciary Committee, EPIC recommended the publication of Foreign Intelligence Surveillance Court Opinions prior to the renewal of the FISA Amendments Act. Last week, EPIC charged the Foreign Intelligence Surveillance Court with acting outside of its authority. In a
letter to Congress, EPIC stated, "The Foreign Intelligence Surveillance Court ordered an American telephone company to disclose to the NSA records of wholly domestic communications. The FISC lacks the legal authority to grant this order." EPIC asked Congress to conduct hearings and determine whether the specialized court, charged with overseeing the collection of foreign intelligence, may also authorize surveillance of solely domestic communications. EPIC has also filed
Freedom of Information Act request a with the Department of Justice, seeking the agency's justification for the NSA domestic surveillance program. For more information, see
EPIC: Foreign Intelligence Surveillance Act,
EPIC: Clapper v. Amnesty, and
EPIC: USA Patriot Act.
- EPIC Seeks Legal Justification for NSA Domestic Surveillance Program » (Jun. 7, 2013)
EPIC has filed a
Freedom of Information Act request with the Department of Justice, seeking the agency's justification for the NSA domestic surveillance program. The Department of Justice
authorized a request for "all call detail records or 'telephony metadata' created by Verizon for communications . . . (ii) wholly within the United States, including local telephone calls." By statute, the scope of the Foreign Intelligence Surveillance Court is limited to investigations concerning the collection of foreign intelligence. The Department of Justice and the President have been acknowledged that the Department conveyed information about the program to Congress. EPIC has
asked Congress to determine whether the special court exceeded its authority when it compelled Verizon to turn over the records of millions of telephone customers. For more information, see
EPIC: Foreign Intelligence Surveillance Act,
EPIC: Clapper v. Amnesty Int'l, and
EPIC: USA Patriot Act.
- Congress Begins Investigation of NSA Domestic Surveillance Program » (Jun. 7, 2013)
Following the revelation of that the National Security Agency is
monitoring domestic communications, members of Congress are initiating new oversight proceedings. The Senate Intelligence Committee
will review the program's legal authority. Members of the House Judiciary Committee
wrote to President Obama, saying, "We believe this type of program is far too broad and inconsistent with our nation's founding principles." During a
hearing of the Senate Appropriations Committee, Sen. Mark Kirk (R-IL)asked Attorney General Eric Holder whether the NSA has spied on members of Congress. EPIC has sent a
letter to leaders in Congresscalling for an investigation into the NSA's activities, and alleging that the FISC's authorization of the Verizon search was unlawful. For more information, see
EPIC: Foreign Intelligence Surveillance Act,
EPIC: Clapper v. Amnesty Int'l, and
EPIC: USA Patriot Act.
- EPIC to Congress: 'NSA Domestic Surveillance Program is Unlawful' » (Jun. 7, 2013)
EPIC has sent a
letter to Congress charging that the National Security Agency's demand for domestic telephone records is unlawful. EPIC stated, "The Foreign Intelligence Surveillance Court
ordered an American telephone company to disclose to the NSA records of wholly domestic communications. The FISC lacks the legal authority to grant this order." EPIC's letter calls on Congress to conduct hearings and determine whether the specialized court, charged with overseeing the collection of foreign intelligence, may also authorize surveillance of solely domestic communications. For more information, see
EPIC: Foreign Intelligence Surveillance Act,
EPIC: Clapper v. Amnesty Int'l, and
EPIC: USA Patriot Act.
- Sweeping NSA Domestic Surveillance Order Approved Without Any Ties to Foreign Intelligence Collection » (Jun. 6, 2013)
An
unprecedented order from the
Foreign Intelligence Surveillance Court indicates that the FBI and the NSA obtained vast amounts of data on Verizon customers without any ties to a foreign intelligence investigation. Last year, in
testimony for the House Judiciary Committee, EPIC urged Congress not to renew the Foreign Intelligence Surveillance Act without first establishing appropriate oversight mechanisms. EPIC warned "there is simply too little known about the operation of the FISA today to determine whether it is effective and whether the privacy interests of Americans are adequately protected." For more information, see
EPIC: Foreign Intelligence Surveillance Act,
EPIC: Clapper v. Amnesty Int'l, and
EPIC: USA Patriot Act.
- 2012 FISA Orders Up, National Security Letters Down, No Surveillance Request Denied » (May. 2, 2013)
According to the
2012 Foreign Intelligence Surveillance Act (FISA) Report, the Department of Justice submitted 1,856 applications to the Foreign Intelligence Surveillance Court (FISC), a 6.4% increase over 2011. Of the 1,856 search applications, 1,789 sought authority to conduct electronic surveillance. The FISC did not deny any of the applications, although one was withdrawn by the Government. However, the FISC did make modifications to 40 of the applications, including one from the 2011 reporting period. In addition to the FISA orders, the FBI sent 15,229 National Security Letter requests for information concerning 6,223 different U.S. persons. This is a modest decrease from the 16,511 requests sent in 2011. Almost no information is available about FISA surveillance beyond the figures contained in the annual FISA letter, sent to the Senate each year by the Department of Justice, Office of Legislative Affairs. EPIC has
recommended greater reporting of FISC applications and opinions, similar to what is disclosed in the
Federal Wiretap Reports. For more information, see
EPIC: Foreign Intelligence Surveillance Act Court Orders 1979-2012 and
EPIC: Foreign Intelligence Surveillance Act.
- Supreme Court Blocks Challenge to FISA Surveillance » (Feb. 27, 2013)
The Supreme Court ruled today in
Clapper v. Amnesty Int'l USA that a constitutional challenge to the Foreign Intelligence Surveillance Act (FISA) cannot go forward. A group of attorneys and journalists
alleged that the U.S. government could be intercepting their communications with their foreign contacts, in violation of the Fourth Amendment. In a divided 5-4 decision, Justice Alito wrote that the group's alleged injuries were too speculative to be considered. Justice Breyer, joined by Justices Ginsburg, Kagan, and Sotomayor, dissented and said that the Court's "certainly impending" standard was inconsistent with prior decisions. Justice Breyer also cited EPIC's
"friend of the court" brief which described the extraordinary capacity of the NSA to capture private communications. For more information, see
EPIC: Clapper v. Amnesty Int'l USA and
EPIC: FISA.
- Senate to Debate Privacy Amendments for Surveillance Law » (Dec. 26, 2012)
The Senate is
scheduled to debate several proposals that would establish new safeguards for the FISA Amendments Act, a controversial law that allows surveillance of the phone and email communications of US citizens without a warrant. Earlier this year, EPIC
testified before the House Judiciary Committee, and recommended increased transparency and new public reporting of the Government's surveillance activities. Currently, the
FISA letter to Congress provides little information about Government conduct. "Congress should not reauthorize the FISA Amendments Act until adequate oversight procedures are in place," EPIC Executive Director Marc Rotenberg said at the May hearing. For more information, see
EPIC: Foreign Intelligence Surveillance Act and
EPIC: Clapper v. Amnesty International.
- Justices Hear Arguments in Surveillance Standing Case » (Oct. 29, 2012)
The Supreme Court heard oral arguments in
Clapper v. Amnesty International, a case concerning the right to challenge illegal surveillance. A federal appeals court ruled in favor of a group of plaintiffs, including human rights advocates, journalists and attorneys, and held that their costs incurred to avoid surveillance were sufficient to establish a live controversy under the Constitution. Solicitor General Donald Verilli, arguing on behalf of the United States and the Director of National Intelligence, claimed that plaintiffs could not establish a sufficiently concrete injury because they do not know if they had been subject to surveillance. The Justices, including Justice Kennedy, seemed concerned about the possibility of government surveillance of privileged attorney-client communications. EPIC filed an
amicus brief, joined by thirty-two legal scholars and technical experts, and six privacy and open government organizations, arguing that the plaintiffs concerns were well founded considering the surveillance capabilities of the NSA and the failure to establish sufficient public reporting requirements for lawful surveillance. For more information, see:
EPIC: Clapper v. Amnesty Int'l USA and
EPIC: Foreign Intelligence Surveillance Act.
- EPIC Urges Supreme Court to Uphold Review of Wiretapping Programs » (Sep. 24, 2012)
Today EPIC filed an
amicus brief with the US Supreme Court in Clapper v. Amnesty International USA, a case challenging the interception of communications of US persons under foreign intelligence surveillance laws. This case presents the issue of constitutional "standing," whether the journalists and human rights organizations who brought he lawsuit can establish an imminent threat or reasonable fear that their communications will be collected. The federal appeals court
found in their favor. In urging affirmance, EPIC argued that the capacity of National Security Agency to intercept private communications combined with the failure to establish meaningful oversight underscores the concern that the interception of private communications would occur. The EPIC brief is supported by 32 legal scholars and technical experts, and six organizations devoted to privacy and open government. For more information, see
EPIC: Clapper v. Amnesty,
EPIC: Foreign Intelligence Surveillance Act (FISA).
- House Renews Foreign Intelligence Surveillance Powers » (Sep. 12, 2012)
The House
has voted to reauthorize the
FISA Amendments Act (301-118). The Act authorizes programs of surveillance intended to target foreign agents, but allows collection of private communications of United States citizens without individualized suspicion. In May 2012, EPIC Executive Director Marc Rotenberg
testified before the
House Judiciary Committee on the legislation and recommended new oversight procedures. The Senate has yet to consider the measure. Senator Ron Wyden (D-OR) and others have expressed concern about renewal of the Act. For more information, see
EPIC: Foreign Intelligence Surveillance Act and
EPIC: Clapper v. Amnesty International USA.
- FISA Reform Proposal Moves Forward in Senate » (Jul. 20, 2012)
The Senate Judiciary Committee has approved a
bill that would established new safeguards for the
Foreign Intelligence Surveillance Amendments Act. The Act provides for court approval of 'programs of surveillance' that allow for the collection of communications of US citizens. The bill, sponsored by Senator Patrick Leahy (D-VT), would renew the Act but also establish new reporting requirements to improve government accountability. In May 2012, EPIC Executive Director Marc Rotenberg
testified before the House Judiciary Committee, and recommended increased oversight and reporting. For more information, see
EPIC: Foreign Intelligence Surveillance Act and
EPIC: Clapper v. Amnesty International USA.
- House Panel Votes to Renew Surveillance Law Without New Safeguards » (Jun. 21, 2012)
The
House Judiciary Committee voted to reauthorize the
FISA Amendments Act, HR 5949, through Dec. 31, 2017 without any changes. The Act authorizes "programs of surveillance" intended to target foreign agents, but also allows collection of private communications of United States citizens without individualized suspicion. EPIC Executive Director Marc Rotenberg recently
testified before the Committe and recommended that Congress strengthen oversight procedures to protect privacy and limit possible misuses of the legal authority. But
amendments to improve accountability introduced by Rep. John Conyers (D-MI), Rep. Jerold Nadler (D-NY), Rep. Bobby Scott (D-VA), and Rep. Sheila Jackson-Lee (D-Texas), were all defeated. In the Senate, Senator Ron Wyden (D-OR) and others have expressed concern about renewal of the Act. For more information, see
EPIC: Foreign Intelligence Surveillance Act and
EPIC: Clapper v. Amnesty International USA.
- House to Consider Bill to Reauthorize Expansive Surveillance Law » (Jun. 18, 2012)
The House Committee on the Judiciary will
markup the
FISA Amendments Act Reauthorization Act of 2012 on Tuesday, June 19, 2012. The
Act authorizes government surveillance of international communications, including the private communications of United States citizens. Currently, the law provides
little information to Congress or the public about these surveillance activities. EPIC Executive Director Marc Rotenberg recently
testified at an
oversight hearing, and called on Congress to strengthen oversight procedures and increase transparency before the Act is renewed. In a recent
report by the Senate Intelligence Committee, Senators Mark Udall and Ron Wyden also said that the FISA contains a loophole that allows the government "to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens." For more information, see
EPIC: Foreign Intelligence Surveillance Act and
EPIC: Clapper v. Amnesty International.
- EPIC to Congress: "Strengthen FISA Oversight" » (Jun. 1, 2012)
EPIC Executive Director Marc Rotenberg will testify before the
House Judiciary Subcommittee on the FISA Amendments Act of 2008. The
Act authorizes Government surveillance of international communications, including the private communications of U.S. citizens. EPIC will
recommend increased transparency and new public reporting of the Government's surveillance activities. Currently, the FISA
letter to Congress provides little to no information about Government conduct. "Congress should not reauthorize the FISA Act until adequate oversight procedures are in place," Rotenberg said. The hearing will be
webcast. For more information, see
EPIC: Foreign Intelligence Surveillance Act and
EPIC: Clapper v. Amnesty International.
- EPIC to Testify on Foreign Intelligence Surveillance Act » (May. 25, 2012)
- Supreme Court Set to Review Wiretap Case » (May. 21, 2012)
The Supreme Court has
agreed to hear Clapper v. Amnesty International USA, a challenge to the
FISA Amendments Act of 2008. The Act expanded the Government's authority to engage in warrantless surveillance, and followed news of the Bush administration's program to wiretap international communications. A group of lawyers, journalists, and public interest organizations, who regularly engage in international communications, challenged the new law saying they feared that their private communications would be intercepted. The US Court of Appeals for the Second Circuit
ruled that the case could proceed even though the plaintiffs had not established that they were subject to surveillance. The Government filed a petition for the Supreme Court to hear the case, which was granted today. EPIC recently filed an amicus brief in a Supreme Court case,
First American v. Edwards, raising similar Article III standing issues in the context of a consumer protection statute. EPIC also filed an amicus brief along with the Stanford Constitutional Law Center and other interested groups, in
Hepting v. AT&T, a case challenging AT&T's involvement in the FISA warrantless wiretapping program. For more information, see
EPIC: Foreign Intelligence Surveillance Act (FISA).
- 2011 FISA Orders Up, National Security Letters Down, No Surveillance Request Denied » (May. 4, 2012)
According to the
2011 Foreign Intelligence Surveillance Act (FISA) Report the Justice Department submitted 1,745 applications to the Foreign Intelligence Surveillance Court, a 10.5% increase over 2010. Of the 1,745 FISA search applications, 1,676 concerned electronic surveillance. The FISA court did not deny any applications, though it did modify 30 applications. Also in 2011, the FBI made 16,511 National Security Letter requests for information pertaining to 7,201 different U.S. persons. This is a substantial decrease from the 24,287 national security letter requests concerning 14,212 U.S. persons in 2010. The annual report on FISA, released by the Department of Justice, is far less extensive than the
annual wiretap report, produced by the Administrative Office of the US Courts. EPIC has
recommended greater accountability for the FISA Court. For more information, see:
EPIC: Foreign Intelligence Surveillance Act Court Orders 1979-2011 and
EPIC: Foreign Intelligence Surveillance Act.
- Congressional Leaders Strike Deal to Extend Patriot Act » (May. 20, 2011)
Lawmakers in the House and the Senate have reached an
agreement that would renew key provisions of the Patriot Act, though amendments are still possible. One of the sections, known as the "lone wolf" provision, allows terrorist investigations of non-citizens without having to show connections to a terrorist organization. The
Patriot Act expanded the authority of law enforcement and intelligence agencies to monitor private communications and access personal information. Among other things, the Patriot Act amended the
Foreign Intelligence Surveillance Act (FISA) to allow the FBI to use National Security Letters for In place of court-approved warrants. In 2010,
24,287 NSLs were issued, up 64% from the previous year. For more Information, see
EPIC: USA Patriot Act and
EPIC: Foreign Intelligence Surveillance Act.
- 2010 FISA Orders Up 19%, No Surveillance Request Turned Down » (May. 9, 2011)
The Department of Justice has released the
2010 Foreign Intelligence Surveillance Act (FISA) report. In 2010, the Justice Department submitted 1,579 FISA search applications to the Foreign Intelligence Surveillance Court, a 19% increase over 2009. The court did not deny or modify any applications. Also in 2010 the FBI made 24,287 National Security Letter requests for information pertaining to 14,212 different U.S. persons. This is a substantial increase from the 14,788 national security letter requests concerning 6,114 U.S. persons in 2009. EPIC has
recommended greater accountability for the
Foreign Intelligence Surveillance Court. For more information, see:
EPIC: Foreign Intelligence Surveillance Act Court Orders 1979-2010 and
EPIC: Foreign Intelligence Surveillance Act.
- EPIC v. DOJ: Warrantless Wiretapping Memos Disclosed » (Mar. 22, 2011)
Pursuant to
EPIC v. DOJ, the Justice Deparment has turned over two legal memos concerning the Bush-era warrantless wiretapping program. EPIC sought these memos within hours after the
New York Times first reported on the wiretapping program in 2005. The memos, dated
November 2, 2001 and
May 6, 2004, contain portions of the Bush Administration's justifications for the program, but are heavily redacted. The Obama Administration
withheld three other memos in their entirety. For more information, see
EPIC: Wiretapping,
EPIC: Foreign Intelligence Surveillance Act (FISA), and
Lawfare, "DOJ Releases Redacted Version of 2004 Surveillance Opinion."
- EPIC Supports Proposed Reforms for Surveillance Court, Urges Additional Measures » (Oct. 4, 2010)
EPIC has submitted
comments on the
proposed rules for the Foreign Intelligence Surveillance Court. In comparison to the
previous rules, promulgated in 2006, EPIC said that the new rules would strengthen judicial independence, improve congressional oversight, and promote, to some extent, greater transparency of the court that oversees the Foreign Intelligence Surveillance Act. EPIC also urged the Court to establish a web presence with information about the Court's activities and to publish detailed annual reports. EPIC said these measures would promote accountability and enhance public understanding of the Court and its functions. For more information, see
EPIC: Foreign Intelligence Surveillance Court and
EPIC: Foreign Intelligence Surveillance Act.
- Surveillance Court Seeks Public Comments on Proposed Rules » (Sep. 8, 2010)
The
Foreign Intelligence Surveillance Act (FISA) authorizes a special court the Foreign Intelligence Surveillance Court (FISC) to undertake electronic surveillance in the United States for foreign intelligence information. The FISC is now seeking
public comments concerning its procedures. Comments must received by Monday, October 4, 2010. EPIC previously submitted an
amicus brief regarding FISA authority and national security. EPIC will be submitting comments to the FISC and endorse changes that improve accountability and transparency for FISA orders. See
EPIC - Foreign Intelligence Surveillance Act (FISA) and
EPIC - Foreign Intelligence Surveillance Act Orders 1979-2010
- Inspector General Finds "Egregious Breakdown" in FBI Oversight » (Jan. 21, 2010)
The Department of Justice
Office of the Inspector General has issued a report on the FBI's use of "exigent letters" and other means to obtain telephone records from three unnamed phone companies.
The 300-page report concludes that many of the FBI's practices "violated FBI guidelines, Department policy," and the Electronic Communications Privacy Act. The report also found that "the FBI sought and acquired reporters' telephone toll billing records and calling activity information" through improper means. The report concludes that "the FBI's initial attempts at corrective action were seriously deficient, ill-conceived, and poorly executed" and makes several recommendations for improvement. In a 2007
letter to the Senate Judiciary Committee, EPIC recommended that the FBI's National Security Letter authority be repealed. For more information, see
EPIC National Security Letters.
- House Members Introduce PATRIOT and FISA Reform Bills » (Oct. 20, 2009)
Representatives Conyers, Nadler, and Scott
introduced two bills today that would amend the PATRIOT Act and the Foreign Intelligence Surveillance Act. The
Patriot Amendments Act of 2009 will enhance reporting and judicial oversight of law enforcement powers, including the National Security Letter process. The
FISA Amendments Act of 2009 will place new limits on the government's ability to collect and store Americans' communications without a warrant and repeals retroactive immunity. For more information, see
EPIC FISA,
EPIC PATRIOT Act.
- PATRIOT Act Revisions Introduced in Senate » (Sep. 17, 2009)
Today, Sen. Russ Feingold (D-WI) and seven cosponsors introduced the
Judicious
Use of Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act. The bill would amend the PATRIOT Act, the FISA Amendments Act, and other surveillance and intelligence laws. Among other changes, the JUSTICE Act would reform the National Security Letter process, revise the guidelines for business records orders, eliminate the catch-all provision for "sneak-and-peek" searches, and add new safeguards for FISA roving wiretaps. The JUSTICE Act would also repeal retroactive immunity for telecommunications companies, and is supported by many civil liberties organizations. For more information, see
EPIC USA PATRIOT Act,
EPIC FISA,
EPIC Wiretapping, and
EPIC National Security Letters.
- Senators Consider PATRIOT Act Reforms » (Aug. 7, 2009)
Senators
Russ Feingold (D-WI) and
Dick Durbin (D-IL) are
drafting legislative
reforms to revise the
USA PATRIOT Act. The USA PATRIOT Act allows authorities to conduct surveillance without judicial review through the use of
National Security Letters. The Senators asked the
Attorney General and the
Chairmen of the Senate Judiciary and Intelligence Committee to consider two
previous
bills that add protections to
PATRIOT ACT. Pursuant to a EPIC lawsuit, a federal judge had
ordered the
Justice Department to provide for independent judicial inspection of documents relating to
warrantless wiretapping. For more information, see
EPIC USA PATRIOT Act,
EPIC FISA,
EPIC Wiretapping, and
EPIC National Security Letters.
- Inspector Generals Release Report on President's Surveillance Program » (Jul. 10, 2009)
The Inspector Generals of the
Intelligence Community released a
report
on the President's Surveillance Program. The report summarizes the unclassified
collective results of the reviews. The Program involved the massive, warrantless
surveillance of Americans in the United States. The IG Report finds that the
absence of effective oversight contributed to the ineffectiveness of the program.
In December 2005, EPIC had
requested the legal opinions that were prepared to justify the program. The government has refused to produce many key documents, and
EPIC sued under the Freedom of Information Act. In March this year, the Attorney General
released several related memos, which previously were secret, following President Obama's
statement on government transparency. See
EPIC FISA,
EPIC Surveillance FOIA,
EPIC Wiretapping, and
EPIC National Security Letters.
- FBI's Use of FISA Increasing » (May. 20, 2009)
In a
report to Congress, the
Justice Department revealed a substantial increase in the use of National Security Letters to acquire information on American citizens without court order. In 2008, the FBI made 24,744 NSL requests pertaining to 7,225 persons compared to 16,804 requests pertaining to 4,327 persons in 2007. The report also detailed 2,082 applications by the FBI to the Foreign Intelligence Surveillance Court for authority to conduct surveillance and physical searches. An
earlier audit had revealed that some "blanket-NSLs" did not document the relevance of the information sought to a national security investigation and the statistics were not reported to the Congress. For more information, see EPIC's Page on
Foreign Intelligence Surveillance Act,
National Security Letters, and
Wiretapping.
- Applications for Court Approved Wiretaps Down in 2008 » (Apr. 28, 2009)
According to the 2008 Wiretap
report, federal and state courts issued 1,891 orders for the interception of wire, oral or electronic communications in 2008, down from 2,208 in 2007. (
Dept. of Justice Press release.) As in the last three years, no applications for wiretap authorizations were denied by either state or federal courts. The total number of authorized wiretaps had grown in each of the six past calendar years, beginning in 2003. The 2008 Wiretap Report does not include interceptions regulated by the
Foreign Intelligence Surveillance Act or interceptions approvedby the President outside the exclusive authority of the federal wiretap law and the FISA. See EPIC
Wiretapping page and EPIC
Title III Orders.
- Federal Intelligence Court Rules Warrantless Wiretapping Legal » (Jan. 15, 2009)
The Foreign Intelligence Surveillance Court of Review has
ordered the release of a redacted
opinion. The federal intelligence court
ruled in August, 2008 that warrantless wiretapping of international phone calls and the interception of e-mail messages were permissible. Giving support to the Protect America Act, the Court found that "foreign intelligence surveillance possesses characteristics that qualify" for an exception in the interest of "national security". For more information, see EPIC's page on
Foreign Intelligence Surveillance Act.
Overview of FISA
For ordinary criminal investigations, communications interception is viewed as a grave intrusion on the rights of privacy and speech. In United States v. U.S. District Court, 407 U.S. 297 (1972), the Supreme Court stated:
"Given these potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens."
In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA), which establishes a separate legal regime for "foreign intelligence" surveillance. Title III (the "Wiretap Statute) outlines the strict guidelines regulating ordinary law enforcement surveillance, while FISA regulates the government's collection of "foreign intelligence" information in furtherance of U.S. counterintelligence. FISA was initially limited to electronic eavesdropping and wiretapping. In 1994 it was amended to permit covert physical entries in connection with "security" investigations, and in1998, it was amended to permit pen/trap orders. FISA can also be used to obtain some business records.
Under the Fourth Amendment, a search warrant must be based on probable cause to believe that a crime has been or is being committed. This is not the general rule under FISA: surveillance under FISA is permitted based on a finding of probable cause that the surveillance target is a foreign power or an agent of a foreign power, irrespective of whether the target is suspected of engaging in criminal activity. However, if the target is a "U.S. person," there must be probable cause to believe that the U.S. person's activities may involve espionage or other similar conduct in violation of the criminal statutes of the United States. Nor may a U.S. person be determined to be an agent of a foreign power "solely upon the basis of activities protected by the first amendment to the Constitution of the United States."
Minimization Requirement
Although FISA surveillances must have an intelligence purpose (see below), courts allow FISA-obtained information to be used in criminal trials. However, FISA's "minimization" requirement mandates that procedures be implemented to minimize the collection, retention, and dissemination of information about United States persons. Minimization procedures are designed to prevent the broad power of "foreign intelligence gathering" from being used for routine criminal investigations. In a number of instances, however, there are overlaps between foreign intelligence gathering and criminal investigations. One common minimization procedure is what is known as an "information-screening wall." These "walls" require an official not involved in the criminal investigation to review the raw materials gathered by FISA surveillance and only pass on information that might be relevant evidence. The purpose is to ensure that criminal investigators do not use FISA authority for criminal investigations.
In March of 2002, the Attorney General proposed a new regime of minimization procedures. The Foreign Intelligence Surveillance Court ("FISC") rejected a government application for electronic surveillance shortly after these procedures went into effect. In the first published opinion of that court (described in detail below) the FISC imposed additional restrictions on intelligence community's interactions with criminal prosecutors. That FISC decision was overturned on appeal in In re Sealed Case, 310 F.3d 717 (FISCR 2002).
In 2014 President Obama ordered in Presidential Policy Directive 28 (PPD-28) that the intelligence community update existing or implement new policies to implement procedures for safeguarding all personal information collected through Signals Intelligence methods (including FISA). The Office of the Director of National Intelligence ("ODNI") has published these updated procedures as of May 16, 2017. The ODNI has also published additional minimization procedures that have been adopted by members of the intelligence community, including:
Foreign Intelligence Information
Foreign Intelligence Information (FII) is information that relates to U.S. ability to protect against possible hostile acts of a foreign power or an agent of a foreign power, sabotage or terrorism by a foreign power or agent, and clandestine intelligence activities by a foreign power or agent. FII includes information with respect to a foreign power or foreign territory that relates to the national defense, national security, or conduct of foreign affairs of the United States.
If the intended surveillance target is a U.S. person, the information must instead be "necessary to" protect against hostile acts, sabotage, or terrorism, or U.S. national defense, national security, or foreign affairs.
FISA established a special court--the Foreign Intelligence Surveillance Court (FISC)-- composed of seven federal district court judges appointed by the Chief Justice for staggered terms and from different circuits. Individual judges of the FISC review the Attorney General's applications for authorization of electronic surveillance aimed at obtaining foreign intelligence information. The FISC meets two days monthly.
The proceedings are not adversarial: they are based entirely on the DOJ's presentations through its Office of Intelligence Policy and Review.
Under FISA, the Justice Department reviews applications for counterintelligence warrants by agencies before submitting them to the FISC. The Attorney General must personally approve each final FISA application.
The application must contain, among other things:
- a statement of reasons to believe that the target of the surveillance is a foreign power or agent of a foreign power, (subject to the relevant amendments made by the USA-PATRIOT Act, discussed below)
- a certification from a high-ranking executive branch official stating that the information sought is deemed to be foreign intelligence information, and that the information sought cannot reasonably be obtained by normal investigative techniques;
- statements regarding all previous applications involving the target;
- detailed description of the nature of the information sought and of the type of communication or activities to be subject to the surveillance;
- the length of time surveillance is required;
- whether physical entry into a premises is necessary, and
- proposed procedures to minimize the acquisition, use, and retention of information concerning nonconsenting U.S. persons.
For U.S. persons, the FISC judge must find probable cause that one of four conditions has been met:
(1) the target knowingly engages in clandestine intelligence activities on behalf of a foreign power which "may involve" a criminal law violation;
(2) the target knowingly engages in other secret intelligence activities on behalf of a foreign power under the direction of an intelligence network and his activities involve or are about to involve criminal violations;
(3) the target knowingly engages in sabotage or international terrorism or is preparing for such activities; or
(4) the target knowingly aids or abets another who acts in one of the above ways.
An order of the FISC may approve electronic surveillance of an agent of a foreign power for ninety days and of a foreign power for a year. Extensions may be granted on the same terms.
The records and files of the cases are sealed and may not be revealed even to persons whose prosecutions are based on evidence obtained under FISA warrants (except to a limited degree set by district judges' rulings on motions to suppress). There is no provision for the return of executed warrants to the FISC, for certification that the surveillance was conducted according to the warrant and its "minimization" requirements, or for inventory of items taken pursuant to a FISA warrant.
The Foreign Intelligence Surveillance Court of Review
FISA provides for government appeals of FISC decisions to be made to the Foreign Intelligence Surveillance Court of Review. As of June, 2002, the Court of Review had never met, nor had an appeal ever been lodged. The court convened for the first time on September 9, 2002, to hear a unilateral appeal from the Department of Justice appealing a May 2002 FISC ruling (described in detail below).
The only public mandates governing the Court of Review, which are contained within FISA, direct that the information submitted to the court of review be done under the same seal of secrecy as that submitted to the FISC.
FISA Amendments in the USA-PATRIOT Act
The USA-PATRIOT Act, passed a month after September 11 to provide law enforcement with the tools necessary to combat the war against terrorism, contained several provisions enhancing the government's surveillance authority under FISA. See EPIC's USA-PATRIOT Act Page.
Lower Surveillance Standard
As originally passed, any FISA investigation must have had the collection of Foreign Intelligence Information as its sole or "primary purpose." The USA-PATRIOT Act expanded the application of FISA to those situations where foreign intelligence gathering is merely "a significant" purpose of the investigation. "Significant" is not defined, which vagueness will lead to inconsistent determinations and potential overuse of the FISA standards. The more lenient standards that the government must meet under FISA (as opposed to the stringent requirements of Title III) are justified by the fact that FISA's provisions facilitate the collection of foreign intelligence information, not criminal evidence. This traditional justification is eliminated where the lax FISA provisions are applicable to the interception of information relating to a domestic criminal investigation. The change is a serious alteration to the delicate constitutional balance reflected in the prior legal regime governing electronic surveillance.
Multi-Point ("Roving Wiretap") Authority
The USA-PATRIOT Act further expanded FISA to permit "roving wiretap" authority, which allows the interception of any communications made to or by an intelligence target without specifying the particular telephone line, computer or other facility to be monitored. Prior law required third parties (such as common carriers and others) "specified in court-ordered surveillance" to provide assistance necessary to accomplish the surveillance--under the new law, that obligation has been extended to unnamed and unspecified third parties.
Such "generic" orders could have a significant impact on the privacy rights of large numbers of innocent users, particularly those who access the Internet through public facilities such as libraries, university computer labs and cybercafes. Upon the suspicion that an intelligence target might use such a facility, the FBI can now monitor all communications transmitted at the facility. The problem is exacerbated by the fact that the recipient of the assistance order (for instance, a library) would be prohibited from disclosing the fact that monitoring is occurring.
The "generic" roving wiretap orders raise significant constitutional issues, as they do not comport with the Fourth Amendment's requirement that any search warrant "particularly describe the place to be searched." That deficiency becomes even more significant when where the private communications of law-abiding American citizens might be intercepted incidentally.
Liberalized Use of Pen Register/Trap and Trace Devices
Finally, the USA-PATRIOT Act removed the pre-existing statutory requirement that the government prove the surveillance target is "an agent of a foreign power" before obtaining a pen register/trap and trace order under the FISA. (A pen register collects the outgoing phone numbers placed from a specific telephone line, a trap and trace device captures the incoming numbers placed to a specific phone line. For example, a caller-id box is a trap and trace device.) The government can now obtain a pen register/trap and trace device "for any investigation to gather foreign intelligence information," without a showing that the device has, is or will be used by a foreign agent or by an individual engaged in international terrorism or clandestine intelligence activities. This amendment significantly eviscerates the constitutional rationale for the relatively lax requirements that apply to foreign intelligence surveillance. That laxity is premised on the assumption that Congress and the courts should not unduly restrain the Executive Branch, in pursuit of its national security responsibilities to monitor the activities of foreign powers and their agents. The removal of the "foreign power" predicate for pen register/trap and trace surveillance upsets that delicate balance.
However, USA-PATRIOT Act includes a provision prohibiting use of FISA pen register surveillance under any circumstances against a United States citizen where the investigation is conducted "solely on the basis of activities protected by the First Amendment." This exemption limits to some extent the potential overreach of this expanded authority.
Breakdown of the FISA Wall
In March 2002, the Attorney General submitted a memorandum to the FISC, requesting approval of newly created information sharing (minimization) procedures and other proposals, to be implemented upon approval at the Department of Justice. The Attorney General's proposed minimization procedures removed many of the existing limitations on the involvement of traditional criminal law enforcement officials in the FISA process. In a May 17, 2002, opinion, the FISC granted some of the Administration's newly requested powers, but refused to grant the Justice Department heightened information sharing powers proposed by the Attorney General.
According to the court, "in approving minimization procedures the Court is to ensure that the intrusiveness of foreign intelligence surveillances and searches on the privacy of U.S. persons is 'consistent' with the need of the United States to collect foreign intelligence information from foreign powers and their agents." The FISC found that the Justice Department and FBI had supplied inaccurate information to the court in more than 75 applications for search warrants and wiretaps, including one signed by then-FBI director Louis Freeh. Authorities also improperly shared intelligence information with investigators and prosecutors handling criminal cases on at least four occasions. These abuses were discovered by the Justice Department and reported to the FISC in 2000. In one case, the FISC was so angered by inaccuracies in affidavits submitted to the court that the judges barred the agent responsible from ever appearing again before the FISC. In rejecting the new minimization procedures, the FISC stated that "[i]n virtually every instance, the government's misstatements and omissions in FISA applications and violations of the Court's orders involved information sharing and unauthorized disseminations to criminal investigators and prosecutors."
Because of the Administration's history of misuse of FISA authority, the FISC decided that the new procedures proposed by Attorney General Ashcroft were improper because they would give prosecutors too much control over intelligence investigations, and would allow the government to "end-run" the more stringent Title III wiretap requirements by obtaining information for criminal investigations under the lower FISA standards. "The 2002 procedures appear to be designed to amend the law and substitute the FISA for Title III electronic surveillance and Rule 41 searches." The court was clearly unhappy with the lack of response from the Justice Department, which had not explained how the misrepresentations and abuses occurred.
Under the rules laid out in the 2002 FISC order, the Justice Department would have had to seek explicit court approval before disclosing information obtained in a FISA investigation with a criminal investigator or prosecutor. The DOJ procedures would have given criminal prosecutors routine access to such information, and provided that they be allowed to direct intelligence investigations when appropriate.
The Attorney General appealed the FISC order to the Foreign Intelligence Court of Review ("FISCR"). This was the first appeal of FISC order in the court's history. Until this incident, the FISC has approved all but one FISA application sought by the government since the court's inception. The Court of Review heard arguments from the Justice Department, from a coalition of civil liberties groups, and from the association of criminal defense attorneys. The FISCR issued its opinion on November 18, 2002, overturning the FISC decision and ordering the court to approve the government's applications for electronic surveillance.
FISA Warrantless Surveillance Reauthorization
The Protect America Act of 2007 (text) made several significant changes to the structure of FISA surveillance. The Act became law on August 5th, 2007, and will expire -- with some exceptions -- six months from that date. Lawmakers will during this period be discussing the reauthorization of these changes or further changes to these surveillance powers. The Protect America Act altered the definition of electronic surveillance; created additional procedures for authorization of intelligence gathering on a program-wide basis; and set up a procedure for the courts to review those programs. These changes are set to expire six months after the Act going into effect, with some exceptions. Other proposals, rejected in favor of the final bill, include S. 2011, and H.R. 3356.
Protect America Act Changes
FISA's new section 105A declares that "nothing in the definition of electronic surveillance . . . shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States." Since the FISA court procedures govern the use of electronic surveillance, this change in definition removes such surveillance from the review of the FISA court. There may be "surveillance" that is "electronic," but if it does not fit into the FISA law's definition of "electronic surveillance" then the FISA court does not control it. This provision permits the warrantless surveillance of Americans when the surveillance is "directed at" someone believed to be outside the United States -- whether that person outside the United States is an American or not.
Section 105B creates a set of procedures for the administration to use when acquiring information that is not "electronic surveillance." The government must certify that the program has reasonable procedures in place for determining that the acquisition of information "concerns" persons reasonably believed to be outside of the United States.The government must further certify that the acquisition is not "electronic surveillance." Certifications are also required that minimization procedures are followed and that "a significant purpose" of the acquisition is to obtain foreign intelligence information. The benefit the administration gains from following this procedure is that holders of information, such as telecommunicatiosn companies, are forced to comply. The holders of information are also immunized from lawsuits for having provided this information, notwithstanding any privacy laws that would otherwise hold the holders liable for releasing the information. These certifications are valid for up to a year.
Review of the procedures in 105B is provided by section 105C. The FISA court can review the administration's determination to see if it is "clearly erroneous." If it overturns the program, then the government can appeal to the FISA "Court of Review" and on to the Supreme Court. Even if overturned, the program can continue while these reviews and appeals are pending. The changes to the law are set to expire six months after enactment. However, any programs in place at the time of the expiration can continue their full course of up to a year.
News Stories on Protect America Act Changes:
- Spy Master Admits Error, Newsweek, 9/12/2007. Director of National Intelligence Mike McConnel told Congress that the Protect America Act changes helped to stop a terror polot in Germany. He has since withdrawn that statement.
- Transcript: Debate on Foreign Intelligence Surveillance Act, El Paso Times, 8/22/07. The Director of National Intelligence, Mike McConnel, goes on the record to discuss the FISA passage, private sector participation in illegal domestic spying, and the scope of the surveillance system.
Resources on Protect America Act Changes and Debate:
- "The Foreign Intelligence Surveillance Act: A Brief Overview of Selected Issues," December 7, 2007. Report by the Congressional Research Service.
- "The Foreign Intelligence Surveillance Act: Comparison of House-Passed H.R. 3773, S. 2248 as Reported By the Senate Select Committee on Intelligence, and S. 2248 as Reported Out of the Senate Judiciary Committee," December 6, 2007. Report by the Congressional Research Service.
- RESTORE Act, the House proposal to replace the Protect America Act. It contains no immunity for telecommuniations companies that participated in the administration's warrantless surveillance program.
- FISA Since Sept. 11, 2001. A copy of the FISA Law, marked up in 6 colors showing the various additions and subtractions since September 11, 2001. The first major revision is the Patriot Act, and the last is the Protect America Act of 2007. Prepared by David Kris.
- P.L. 110-55, the Protect America Act of 2007: Modifications to the Foreign Intelligence Surveillance Act, Congressional Research Service, RL 34143, 8/23/2007. This report discusses the changes made to FISA in 2007, and discusses its effect on parallel and existing laws. The CRS provides non-partisan research and expertise to Congress.
- FISA: Safeguarding Both Security and Privacy. A panel discussion hosted by the Center for American Progress.
- Spies Spent 50,000 Days in 2006 Writing Warrants, Chief Spy Says, Wired, 8/23/07. A Blogger extrapolates that 218 full time top secret staff must be preparing FISA warrants, per DNI McConnel's estimate of 200 man-hours to prepare a single one.
FBI Noncompliance with FISA Procedures
Background on "Crossfire Hurricane" and the Office of the Inspector General (OIG)'s 2019-2020 Reports
At the heart of the Crossfire Hurricane investigation, and the IG’s subsequent reports are
the FBI’s internal, deficient procedures for handling FISA applications. The main procedures are the “Woods Procedures,” which the FBI implemented in 2001 following FISA application errors that led to the unauthorized dissemination of information with prosecutors and other criminal investigators. Their stated purposes are “to minimize factual inaccuracies in FISA applications” and to ensure that statements made in applications are “scrupulously accurate.” The Procedures require that every single fact in a FISA application is verified, but they do not require corroboration of information by a second source for facts attributed to one source; additionally, it is common for officers to start the FISA drafting process before verifying source information.
The Procedures were later incorporated into other internal FISA procedures, like the 2016 Standard Minimization Procedures Policy Guide (SMPPG), which require the FBI to maintain an accuracy sub-file called a “Woods File.” The Woods File must contain supporting documentation for every fact asserted in a FISA application. Because FISC relies heavily on the government’s factual assertions to make its probable cause determinations, these procedures are meant to ensure FBI case agents are indeed presenting full and accurate facts in their FISA applications.
In 2016-2017, the FBI conducted an investigation into certain members of the Trump campaign called “Crossfire Hurricane.” Carter Page was one of its targets. The FBI used FISA applications to obtain information during its investigation, including a FISA application to surveil Page. Although the FBI initially did not have sufficient facts showing probable cause to target Page, the FBI later used reports from Christopher Steele that prompted the FBI to begin drafting a FISA request. The Page FISA application was submitted in October 2016 and promptly granted. The FBI submitted five renewal applications in the first half of 2017, and all five renewals were granted by the FISC. In July 2018, the National Security Division (NSD) submitted a letter to the FISC informing them of certain factual omissions in the Page application, but it also noted that the applications still contained sufficient facts to support probable cause despite the omissions.
In March 2019, the IG initiated review of the Page application. In December 2019, the IG released a lengthy report detailing numerous deficiencies in the Page application stemming from the FBI’s failure to follow its own FISA procedures.
Then in March 2020, the IG released another report after an extended audit of the FBI’s compliance with these same procedures. The IG examined twenty-nine FISA applications, including both initial and renewal applications. The March Report largely found that, despite the Woods Procedures and SMPPG, the IG did “not have confidence that the FBI has executed its Woods Procedures in compliance with FBI policy.” Some of the audited applications lacked the necessary supporting documents; the FBI could not locate the Woods Files for four of the FISA applications it reviewed, and the FBI did not know if Woods Files had ever existed in three of those four. Even in the 25 remaining applications for which the FBI was able to locate Woods Files, every application contained at least some factual assertions that lacked proper support. In some cases, the assertions were entirely unsupported by any material in the Woods File; on average, the auditors found an average of twenty factual issues per application reviewed, ranging from about five to sixty-five per application. When FBI agents sought reauthorization from the FISC for those faulty applications, the report found that they failed to reverify those assertions as required by the Woods Procedures. To top it all off, already-existing accuracy reports made regularly by FBI field offices and the NSD’s Office of Intelligence identified procedural deficiencies in thirty-nine out of forty-two FISA applications reviewed. There were a total of 390 individual problems in these applications; neither the FBI nor NSD accuracy reports deemed any of the 390 issues to be material to the applications.
At the end of its report, the IG made two recommendations. First, that the FBI and NSD systematically examine their accuracy reviews to identify patterns or trends that will inform how the FBI can better train agents’ compliance with the Woods Procedures. Second, that the FBI perform a “physical inventory to ensure that Woods Files exist for every FISA application submitted to the FISC in all pending investigations.”
Legislative Reforms Following the OIG Reports
In response to the IG’s findings regarding inaccuracies and error in the FBI’s Carter Page
FISA applications, both the USA FREEDOM Reauthorization Act of 2020 (H.R. 6172) and the Senate’s version of the bill (including the Lee-Leahy amendment) imposed limitations on intelligence officers to ensure greater accuracy in government applications to the FISA courts.
H.R. 6172 amended Titles I, III, IV, V, and VII of FISA to require government applicants to certify that the DOJ “has been apprised of all information that might reasonably call into question the accuracy of the application or the reasonableness of any assessment in the application.” Under Titles I and III, applications targeting U.S. persons would need to include “a statement describing the investigative techniques carried out before making the application.” The AG would be required to provide written approval of an investigation that targets a Federal elected official or candidate. The bill also provided for removal or suspension of Federal officers who “engage in deliberate misconduct” in proceedings before the FISA courts; it also defined penalties for these newly-enumerated FISA offenses.
The bill also tried to increase transparency within the FISA court system. It required declassification review and public release of each FISA court decision, order, or opinion including a “significant construction or interpretation of any provision of law” within 180 days of issuance. It also provided that any decision, order, or opinion issued before H.R. 6172’s enactment would need to be reviewed and released within a year of its enactment. This increased transparency also extended to files associated with relevant applications or orders, requiring them to include transcriptions of proceedings and “all written substantive communications” between the DOJ and the FISA courts. The bill also required annual reporting including the number of certifications made by FISCR, as well as the number of requests to certify a question of law made by an amicus.
The Lee-Leahy amendment to the USA FREEDOM Reauthorization Act also expanded government disclosures and created other accuracy procedures. For example, the amendment created a kind of Brady requirement for intelligence officers, requiring them to provide the FISC with all information, including exculpatory information, that is: “material determining whether the application satisfies the applicable requirements,” “call[s] into question the accuracy of the application,” and that “otherwise raise[s] doubts with respect to the findings that are required to be made...in order for the court order to be issued.” The amendment also would require increased disclosure and documentation by the government, coordination within the intelligence community, and stricter internal “compliance and auditing mechanisms.” This includes a requirement that the IG and DOJ audit FISA applications annually from the preceding year. The amendment finally would require that Section 215 warrants be based on a showing of probable cause that a known U.S. person is an agent of a foreign power, or that they have been or will soon be involved in an act of terrorism or illegal spy activities.
Ultimately, the 2020 Reauthorization Act did not become law.
Resources
Articles and Publications
- P.L. 110-55, the Protect America Act of 2007: Modifications to the Foreign Intelligence Surveillance Act, Congressional Research Service, RL 34143, 8/23/2007. This report discusses the changes made to FISA in 2007, and discusses its effect on parallel and existing laws. The CRS provides non-partisan research and expertise to Congress.
- Transcript: Debate on Foreign Intelligence Surveillance Act, El Paso Times, 8/22/07. The Director of National Intelligence, Mike McConnel, goes on the record to discuss the FISA passage, private sector participation in illegal domestic spying, and the scope of the surveillance system.
Legal Resources
- Foreign Intelligence Surveillance Act of 1978
- FBI Office of General Counsel "FISA Recipe" (PDF; updated Sept. 12, 2002) (internal FBI guidance obtained by EPIC under the FOIA; answers the question, "What do I have to do to get a FISA?")
- Attorney General Memorandum on Intelligence Sharing Procedures (Mar. 6, 2002)
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Prior Attorney General Memoranda on Intelligence Sharing Procedures, and Related Documents
- Memorandum Opinion (also available in PDF) of the FISC, rejecting and revising Justice Department intelligence sharing procedures (May 17, 2002)
- Letter to the FISC from Senators Leahy, Grassley, Specter (July 31, 2002)
- Letter of Transmittal from Presiding Judge Colleen Kollar-Kotelly (Aug. 20, 2002)
- Justice Department Appeal to the U.S. Foreign Intelligence Surveillance Court of Review, seeking to vacate FISC Opinion and Order, (Aug. 21, 2002)
- Amicus Brief of EPIC and civil liberties coalition urging the Court of Review to uphold the FISC decision (Sept. 20, 2002)
- Amicus Brief (PDF) of National Association of Criminal Defense Lawyers (NACDL) urging affirmance of the FISC decision (Sept. 26, 2002)
- Justice Department's Supplemental Brief filed upon request of the Court of Review, following the Sept. 9 hearing (Sept. 26, 2002)
Websites
More news »
- Federal Intelligence Court Rules Warrantless Wiretapping Legal. The Foreign Intelligence Surveillance Court of Review has ordered the release of a redacted opinion. The federal intelligence court ruled in August, 2008 that warrantless wiretapping of international phone calls and the interception of e-mail messages were permissible. Giving support to the Protect America Act, the Court found that "foreign intelligence surveillance possesses characteristics that qualify" for an exception in the interest of "national security". For more information, see EPIC's page on Foreign Intelligence Surveillance Act. (Jan. 15)
- Telecom Immunity "Compromise" Okays Unaccountable Warrantless Surveillance. White House and Congressional officials have struck a deal (pdf) in ongoing debates on updating the Foreign Intelligence Surveillance Act (FISA). The deal will effectively end court inquiry into the President's warrantless surveillance program. Courts will be bound to follow the President's determination that the program was legal, rather than actually inquire into the program and judge the actions of the President and the Telecommunications companies. The proposal grants an expansion of warrantless surveillance powers from last year's Protect America Act until 2012, and requires that Inspectors General inquire into the warrantless surveillance program. Senators Leahy and Feingold have expressed deep opposition. (June 19)
- FISA Orders Up, Government Reporting on National Security Letters Begins. According to the 2007 FISA report, the Foreign Intelligence Surveillance Court approved 2,370 application to conduct electronic surveillance and physical searches in the United States in 2007, up from 2,176 applications approved in 2006. For the first time, the report includes information regarding the total number of requests made by the Department of Justice with National Security Letter authority for information concerning U.S. persons. in 2006, the government made approximately 12,583 NSL requests for information concerning 4,790 U.S. persons. The 2007 NSL statistics are expected later this year. (May 1)
- House Holds Fast on Privacy Law Enforcement, President's Unconstitutional Warrantless Surveillance Powers to Expire. The House of Representatives will recess this Thursday, allowing the Protect America Act to expire on Saturday. That law, passed in August, expanded the warrantless surveillance powers of the President. The White House also wants legal immunity for telephone companies that participated in the warrantless surveillance program. The House last year passed the RESTORE Act, which rejected the effort to gut the federal wiretap law. After extensive White House lobbying, the Senate this week passed S. 2248 with the immunity provision, but the House said no to the White House effort to adopt the Senate bill. EPIC and other groups are suing the Department of Justice for documents on the legal justification for the warrantless surveillance program.
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Security Experts Warn That FISA Changes Weaken US Security. In a report in IEEE Security & Privacy, leading experts in computer security warn that the Protect America Act -- enacted as a temporary measure last August and the continuing subject of attention -- could make the United States vulnerable to attack. The paper, "Risking Communications Security: Potential hazards of the Protect America Act (pdf)," warns that warrantless wiretapping creates serious security risks, including the "danger of exploitation of the system by unauthorized users, danger of criminal misuse by trusted insiders, and danger of misuse by government agents." Congress continues to debate FISA changes, including making permanent the Protect America Act. (Jan. 31)
- House, Key Senate Committee Reject Immunity for Telephone Companies that Violated Wiretap Law. House and Senate proposals to reform the Foreign Intelligence Surveillance Act (FISA) advanced without the controversial immunity provision. Senator Leahy, following action in the Senate Judiciary Committee on FISA legislation, said "When we give the government sweeping surveillance powers, there need to be clear rules and checks and balances to prevent abuses against the American people." Meanwhile, the House passed the RESTORE Act, which establishes new oversight for domestic surveillance and does not allow retroactive immunity for past violations of law. The Protect America Act, which these bills replace, is set to expire in February of 2008. (Nov. 16)
- Congress Opens Investigation Into Warrantless Surveillance.The House Committee on Energy and Commerce has launched an investigation into the National Security Agency's domestic warrantless wiretapping program and the involvement of the telephone companies. "Congress has a duty to determine what occurred and also to examine the difficult position of the phone companies who may have been asked by the government to violate the privacy of their customers without the assurance of liability protections," said Committee Chairman John Dingell. Last year, EPIC joined almost 40 organizations in a statement (pdf) urging the Committee to investigate the program's possible violations of the privacy provisions of the Communications Act. (Oct. 4)
- Director of National Intelligence on The Record About Spy Programs. In an on the record discussion with the El Paso Times, Director of National Intelligence Mike McConnell revealed past and current surveillance activities, as well as details of the passage of the new FISA law. For the first time, an administration official confirmed that private sector companies illegally assisted with the President's domestic spying program. According to McConnel, a FISA court judge refused to authorize certain interceptions of wired communications without a warrant. Complaining that it took 200 man hours to craft a warrant, McConnel argued that surveillance of a foreigner in a foreign country should not be restricted by warrants. Per McConnell, this prompted the administration to introduce 66 pages of changes to FISA. The final version was only 11 pages long. McConnell discussed that he had problems with one alternative proposal, because on language concerning minimization, but he did not elaborate. (Aug. 24)
- Congress Enacts Sweeping Changes to FISA Law. Following a frantic, week-long push by the White House to expand domestic spying and reduce judicial oversight, the Congress passed amendments to the Foreign Intelligence Surveillance Act that will permit warrantless surveillance of American citizens when one party to the conversation may be outside of the United States. It is the most dramatic change in the 30 year history of the FISA and will leave millions of Americans subject to electronic surveillance, without court review, regardless of whether they are suspected of any wrongdoing. However, the amendments will sunset in 180 days, which will provide an opportunity for further debate in Congress. (Aug. 6)
- Secret Surveillance Continues to Increase. The Foreign Intelligence Surveillance Act Report reveals that the government made 2,072 secret surveillance requests in 2005, a record high and 18 percent more than 2004. None of the requests were denied by the Foreign Intelligence Surveillance Court, the secretive body that issues the warrants. In contrast, the Department of Justice reports (pdf) that law enforcement agencies across the country were authorized to conduct 1,773 wiretaps, which are issued under a more stringent standard. The report on secret wiretap warrants also indicated that the government issued 9,254 National Security Letters during 2005. These letters can be used to obtain information about individuals without the government applying for a court-reviewed warrant. (May 2, 2006)
- American Bar Association Says Unlawful Surveillance Should Stop. A new report (pdf) from the American Bar Association calls on the President to abide by constitutional checks and balances, and to end electronic surveillance inside the United States that does not comply with the Foreign Intelligence Surveillance Act. The Association overwhelmingly supported the report, which also urged the Congress to undertake comprehensive investigations. (Feb. 15, 2006)
- Electronic Surveillance at an All-Time High in 2004. The Foreign Intelligence Surveillance Act Annual Report (pdf) reveals that there were 1758 applications for secret surveillance in 2004, an all-time high. None of the applications for secret suveillance warrants were denied. In 2004, as in 2003, more secret surveillance warrants were granted than federal wiretap warrants, which have more stringent standards. A report on federal wiretapm warrants in 2004 reveals that state and federal courts authorized 1,710 interceptions in 2004, an increase of 19 percent over 2003 and more than in any previous year. Federal officials made an all-time high 730 intercept applications in 2004, a 26 percent increase over 2003. (Apr. 29, 2005)
- 2003 Surveillance Report: Secret Warrants Surpass Standard Warrants. The 2003 Foreign Intelligence Surveillance Act Annual Report (pdf) reveals that the Foreign Intelligence Surveillance Court granted 1724 applications for secret surveillance last year, more than in any previous year. The report shows that 2003 was the first year ever that more secret surveillance warrants were granted than federal wiretap warrants, which are issued only under a more stringent legal standard. The PATRIOT Act significantly expanded the government's authority to make use of secret surveillance, including in circumstances where part of the investigation is unrelated to an intelligence investigation. The report also reveals that a small number of applications for secret surveillance were denied in 2003 for the first time ever. For more information, see EPIC's FISA statistics page. (May 6, 2004)
- FISA Wiretaps At All-Time High. According to the 2002 FISA Annual Report from the Attorney General, "All 1228 applications presented to the Foreign Intelligence Surveillance Court in 2002 were approved." In2001, 934 applications were approved. See EPIC's FISA statistics page. (May 1, 2003)
- Surveillance Oversight Act Introduced. Members of the Senate Judiciary Committee have introduced the Domestic Security Oversight Act (pdf). The bill would increase the public reporting requirements of the Department of Justice on its implementation of the Foreign Intelligence Surveillance Act. The American Bar Association has also urged (pdf) better public reporting regarding the FISA. An interim report by the bill sponsors (pdf) on the FBI's use of the FISA details major problems with its implementation. (Feb. 25, 2003)
- American Bar Association Urges FISA Oversight. The American Bar Association has adopted a resolution calling on Congress to conduct oversight of the Foreign Intelligence Surveillance Act to ensure that government investigations do not violate Constitutional protections. The ABA also urged Congress to require annual reports for FISA investigations, comparable to those required by the federal wiretap act. The ABA action follows a controversial decision by the Foreign Intelligence Court of Review. (Feb. 11, 2003)
- Secret Appeals Court Permits Broader Electronic Surveillance. The secretive Foreign Intelligence Surveillance Court of Review today issued an opinion (PDF) granting the executive branch broader surveillance authority in foreign intelligence cases. The opinion, which overturned the lower court's determination, was the first issued by the Court of Review since FISA's inception in 1978. The case involves an unprecedented decision made public in August which revealed a pattern of FBI misrepresentations to a secret surveillance court. For more information, see the ACLU's press release on the decision. (Nov. 18, 2002)
- Memo Reveals FBI Wiretap Violations. A recently disclosed FBI memo reveals that agents illegally videotaped suspects, intercepted e-mails without court permission, recorded the wrong phone conversations, and allowed electronic surveillance operations to run beyond their legal deadline, during sensitive terrorism investigations. The mistakes referenced in the internal memo are different than those delineated and criticized in May by the Foreign Intelligence Surveillance Court. The existence of the memo was first revealed in documents EPIC obtained in a FOIA lawsuit. (Oct. 10, 2002)
- Rights Groups File Brief With Secret Appeals Court. EPIC has joined with a coalition of civil liberties groups to urge a secret appeals court to reject a government bid for broadly expanded powers to conduct "national security" surveillance on U.S. citizens. In an amicus brief (PDF) filed with the Foreign Intelligence Surveillance Court of Review, the groups said that expanding such powers would jeopardize fundamental constitutional interests. The case involves an unprecedented decision made public last month which revealed a pattern of FBI misrepresentations to a secret surveillance court (see below). (Sep. 20, 2002)
- FISA Court Chastises DOJ, FBI. In a published opinion (also available in PDF), the secretive Foreign Intelligence Surveillance Act (FISA) Court sharply criticized the DOJ and FBI for providing the tribunal misleading information in 75 cases. The Court limited the request of the DOJ to share intelligence information for criminal prosecutions. The Court said that DOJ substituted relaxed foreign intelligence gathering wiretapping procedures to evade higher requirements for standard criminal investigations: "The 2002 procedures appear to be designed to amend the law and substitute the FISA for Title III electronic surveillances" The Court continues to say that this may be because "the government is unable to meet the substantive requirements of these law enforcement tools..." (Aug. 23, 2002)