FISA Scuffle

The coming months look rich with potential turning points in the debate over whether the U.S. has gone too far in the expanded eavesdropping allowed by amendments to the Foreign Intelligence Surveillance Act.

The FISA collection strategy is a top contributor to the intelligence community's big data storage dilemma and inevitably sweeps up emails, texts and telephone calls to and from people on U.S. soil. For critics, the collections amount to trampling American privacy rights. For supporters, there are plenty of safeguards in place to protect privacy and keep Americans safe.

About the only consensus is that if Congress doesn't act, the sun will set Dec. 31 on the FISA amendments and their expanded eavesdropping.

Rep. Mike Rogers, R-Mich., supports renewing the amendments in his role as chairman of the House Permanent Select Committee on intelligence, and he predicts at most a political "scuffle" over a bill introduced in June that would extend the eavesdropping through 2017.

One reason for his optimism could be the rare election-year accord among Obama administration officials and Republicans about the need to renew the FISA amendments. Director of National Intelligence James Clapper and Attorney General Eric Holder told Congress earlier this year that the reauthorization is their number one legislative priority for intelligence.

Critics, however, are seizing the FISA renewal as a chance to re-examine the post-9/11 relationship between privacy, intelligence and security. They hope to turn Roger's scuffle into a fight by pointing out that the private communications of U.S. citizens are being swept up and no one knows or will say how many Americans have been affected.

Sens. Ron Wyden of Oregon and Mark Udall of Colo., two Democrats on the Senate Select Committee on Intelligence, have been asking pointed questions in writing and during hearings about the FISA reauthorization. The CATO Institute and the American Civil Liberties Union are lining up to oppose the reauthorization, and now the Supreme Court is getting into the act too. When the court reconvenes in October, it's scheduled to consider whether the ACLU can challenge the constitutionality of the FISA amendments.

"This debate in the Fall is going to be one of the most important in years,” Wyden said in July at a CATO Institute symposium, according to a webcast. “Before the law is reauthorized the public ought to be able to learn more about its impact on the privacy rights of law-abiding Americans…I continue to believe after 11 years on the intelligence committee that protecting this country at a dangerous time and protecting people’s individual liberties are not mutually exclusive.”

BIG DATA, BIG DEBATE

The intelligence community shows no desire to back away from the FISA collections, despite the costs of storing and parsing them. The Senate Select Committee on Intelligence took the unusual step in June of publicly releasing a statement by Clapper and Holder explaining why they see the collections as so important:

Section 702 “provides information about the plans and identities of terrorists, allowing us to glimpse inside terrorist organizations and obtain information about how those groups function and receive support,” Clapper and Holder said in a statement to the committee. The committee's report underscored that the FISA Amendments have become more than a tool against terrorism: “In addition, [FISA] lets us collect information about the intentions and capabilities of weapons proliferators and other foreign adversaries who threaten the United States. Failure to reauthorize section 702 would result in a loss of significant intelligence and impede the ability of the Intelligence Community to respond quickly to new threats and intelligence opportunities."

Privacy advocates aren't buying it. "The idea of moving to a default practice of retaining international communications without a court order seems like a dangerous shift away from our traditional approach to civil liberties,” said Julian Sanchez, a CATO research fellow.

Sanchez doubts the effectiveness of FISA, but he said the government makes it hard to assess the law's impact. If FISA were a tool that led to an arrest or conviction, the government would probably leave that evidence out of the public case for fear of revealing the FISA search methods, he said. In Sanchez's view, the numbers of cases don't suggest a lot of success though: "Do we find a string of plots foiled thanks to sophisticated surveillance methods that would have been unavailable under pre-2001 laws? We do not. Mostly we find human intelligence and tips from alert members of the community playing the critical role," he wrote in his blog.

It is that lack of public information about how the law has been implemented that concerns many critics.

“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,” said Marc Rotenberg, executive director of the Electronic Privacy Information Center, in testimony to the House Judiciary crime, terrorism and homeland security subcommittee.

If government officials won't talk publicly about the scale of the collections, civil libertarians are filling in the blanks. They estimate that the phone calls, text messages and emails of thousands or perhaps millions of law-abiding Americans traveling overseas or communicating with people outside U.S. borders are being collected by intelligence agencies and stored in government databases where they can be searched later, if names, keywords or locations become suspect.

In July, Wyden and Udall asked Clapper for unclassified information on the number of U.S. citizens whose communications were reviewed by government agents using the powers granted by the FISA amendments. They were told that intelligence agencies could not provide that information without jeopardizing other missions. When Wyden and Udall said they'd settle for a ballpark estimate, they were told that gathering that estimate would itself violate the privacy rights of Americans. “That is too far-fetched even by Washington standards,” Wyden told the CATO audience.

To ensure that Congress can keep digging for answers, Wyden in June placed a hold on the bill, which means the Senate will have to debate and vote on the legislation, not simply pass it by unanimous consent. The bill was approved in June by the Senate Select Committee on Intelligence and then by the House Judiciary Committee.

Wyden appears to face an uphill battle because many members of Congress are eager to give the intelligence community whatever it says it needs to protect Americans – including expanded FISA surveillance. “Because we respect the Fourth Amendment [which bars unreasonable searches] and there is judiciary, third-party review of the collection of this information, Americans don't mind,” Rogers said in an interview. “It happens thousands and thousands of times a day across America with subpoenas and warrants. That's the same thing we're implementing here."

The domestic warrants Rogers alludes to, however, are aimed at individuals, whereas the FISA amendments provide annual warrants against categories of people.

WANT TO SEE SOMETHING REALLY SCARY?

Rogers and Wyden are among the few in Congress with high enough clearances to evaluate the merits of the new, improved FISA, and they have strikingly different views of its adherence to Fourth Amendment protections. Wyden points to a July 20 letter in which Clapper acknowledged that “on at least one occasion” the FISA Court determined that a collection violated Fourth Amendment protections and that the government implementation of section 702 sometimes “circumvented the spirit of the law.” The letter adds, however, that the government has fixed the problems and the FISA Court has found current collections to be “consistent with the statute and reasonable under the Fourth Amendment.”

The FISA debate is part of a larger argument over the appropriateness of big data, which is as much a corporate trend as an intelligence trend. Consumers who use credit cards or who conduct searches on Google or other search engines are contributing their preferences to vast, privately held databases that businesses use in marketing campaigns.

In fact, the commercial world was first to face the challenge of coping with big data, and the intelligence community is applying the open source technology developed there to its own databases. The technology has its roots in the late 1990s when Google software engineers devised new ways to index data on the Internet and search it. Doug Cutting, a search engine developer, used Google’s techniques to create an open source software framework called Apache Hadoop, which was adopted by companies and now also by NSA to organize unprecedented amounts of data.

Some intelligence experts argue that those who fear government big data are looking for villains in the wrong place. “The biggest threat to privacy doesn’t come from the intelligence community and the government, but from credit card companies and large retailers,” said Bob Gourley, a former chief technology officer for the Defense Intelligence Agency who now serves as chief technology officer for Crucial Point LLC. “By compiling all that data, they can learn everything about you. That’s scarier than having the National Security Agency on the Internet. I know those guys they are not spying on Americans.”

The goal of the government's embrace of big data is not to sell products but to address one of the problems cited in the 9/11 Commission Report, which was that analysts had trouble finding information about specific people and connecting those people with places and events. “You have to be able to connect the dots and it’s hard to do that,” said Gourley. “The only way to do that was to have human beings read every single report and think about the problem. Computers can help, but until Hadoop came along, computers were very limited in the help they could give you.”

The big data revolution shows no signs of slowing. A few years ago, only the largest commercial businesses were compiling databases larger than 100 terabytes – once thought of as the threshold for big data. Now, the threshold has shifted outward and thousands rely on enormous troves of data to assist in sales, service and marketing. In 2012, the market for hardware, software and services to help businesses manage big data was valued at $5 billion.

In the view of FISA critics, the amended law makes the data problem bigger than it would be if constitutional limits were followed. This fall, the Supreme Court will weigh in on whether critics have the right to make their case in court. The saga started a few years ago when the ACLU filed a lawsuit on behalf of a labor, media and human rights groups challenging the FISA Amendments Act for allowing the government to collect Americans’ international communications without specifying the people or places monitored. A lower court threw out the case in 2009, but a U.S. Court of Appeals reinstated it in 2010. The government filed suit in Clapper's name, arguing that the plaintiffs don't have legal standing to challenge the law because they can't show their communications were acquired under FISA. That's the case the Supreme Court will consider.

A decision against Clapper would give critics an opportunity to make their legal case and possibly begin to scale FISA if Congress does not.

“It would be the first step in challenging the underlying program," said Michelle Richardson, the ACLU council.

It's the ingredients for a scuffle, maybe more.