In 2013, the ex contractor of the National Security Agency Edward Snowden brought to light a series of secret espionage programs of the US government. UU For the first time, Americans learned that the NSA was collecting millions of their telephone calls and electronic communications-emails, Facebook messages, texts, browsing histories-all without an order.
Several of the programs that Snowden disclosed are authorized under Section 702 of the Foreign Intelligence Surveillance Amendments Act. The 2008 law was scheduled for December 31, but in a final effort on Thursday, Congress extended its authority until January 19.
The Trump administration, for its part, believes that the authorization does not actually expire until April, leaving lawmakers several months to reform or strengthen the provision. Hanging on the scales is the legal framework on which the government relies to a great extent to carry out a massive surveillance of foreigners and Americans who communicate with them. What makes it even more disturbing that the struggle for the future of Section 702 has largely taken place in the dark.
Section 702 is intended to allow intelligence officers to electronically monitor "persons reasonably believed to be located outside the United States" without a court order. "The provision was developed after the program of surveillance without secret authorization from the Bush administration, nicknamed Stellar Wind, was released The New York Times by the whistleblower and former Justice Department prosecutor Thomas Tamm in 2005.
& # 39; We are having a debate where intelligence agencies refuse to provide information to Congress about the effectiveness of this program. & # 39;
Neema Singh Guliani, ACLU
The NSA collects hundreds of millions of video chats, instant messages and Emails under Section 702 require companies such as Facebook, AT & T, and Google to turn them in. The law also allows the FBI to search the NSA databases. in a court order. Section 702 technically only authorizes intelligence agencies to collect information on foreign individuals, but citizens and permanent residents can easily be dragged through the trawl network.
"Under the authority, the government can target anyone with 'foreign intelligence', defined broadly," says Neema Singh Guliani, legislative council of the ACLU. "If you are a journalist who reports on world affairs, or an activist who works in world affairs, you could be a target below 702. We do not have exact clarity about who you have addressed."
Which only begins at come to the difficulty of any discussion of Section 702. Democrats, libertarians and privacy groups believe that it violates the Fourth Amendment, while Republicans argue that limiting their powers would impede national security. But most advocates of the expiring law, along with its detractors, really do not know how Section 702 works. No one, except those with the right security clearances, really understands how the law is used, how many Americans it affects. , or how effective are the programs it authorizes to catch terrorists. The only individuals with a detailed understanding of Section 702 programs are those within the US intelligence apparatus. UU
"We are having a debate where the intelligence agencies refuse to provide information to Congress about the effectiveness of this program and the effect it has on the freedoms of the people," says Guliani. "There's a case where you have this massive program, and in many ways Congress is asked to vote blind."
While the intelligence community provides statistics on how many foreigners are targeting Section 702 programs, intelligence officials have refused to provide civil liberties groups and legislators with statistics on how communications from Many Americans filter into their huge surveillance device.
"There is a kind of bite or snapshot of how the program works, but we do not." "I really have a general idea of what the numbers are," says Andrew Crocker, an attorney with the Electronic Frontier Foundation.
Earlier this year, the NSA agreed to provide the public with some information on how many US citizens may be impacted, only to then backtrack on that promise. Coats explained the face by saying that "it is still unfeasible" for the government to cite a significant number.
The NSA has also largely refused to provide concrete evidence of the effectiveness of Section 702. The Foreign Intelligence Surveillance Court, which oversees Section 702, must disclose some of its views, and the Office of the Director of National Intelligence compiles an annual transparency report. But civil liberties advocates say that the intelligence community has not yet done enough to justify Section 702 programs.
"There has not been a meaningful evaluation or a cost-benefit analysis based on data," he says. Sascha Meinrath, founder of the Open Technology Institute. in the New America Foundation and the founder of the technology policy think tank X-Lab. "It's a massive experiment without controls, without scientific methodology, we have no idea if this is causing more harm than benefit, we have no way of knowing."
One of the few exhaustive government analyzes on Section 702 is a frequently cited 201
Defenders of privacy argue that the report is misleading and its methodology is opaque. "What we need is an actual listing of what is happening and transparency about real total costs, opportunity costs, false positives and false negatives," says Meinrath.
In the Balance
Because outside legal experts do not know exactly how the Section 702 programs work, it is difficult to determine if they are constitutional. Democratic Senator Ron Wyden, a long-time NSA critic and member of the Senate Select Committee on Intelligence, believes they create a "back door" to the Fourth Amendment, allowing law enforcement to seek communications from Americans without need of an order.  & # 39; It is a massive experiment without controls, without scientific methodology. We have no idea if this is causing more harm than good. & # 39;
Sascha Meinrath, Open Technology Institute
Some reforms to the program have already been made in response to Fourth Amendment concerns; In April, the NSA stopped a type of authorized surveillance under Section 702, called "over" the collection. He stopped amassing conversations about foreign objectives, but that was not the objectives themselves. If two Americans discussed a known terrorist by text, for example, they could be swept previously in the NSA database. The spy agency put the breaks in the program because it could not stop accidentally collecting information belonging to the Americans.
The opacity of Section 702, however, makes it difficult to know to what extent the rest of its programs violate the rights of the United States. the citizens. "It harms the ability of the courts to determine if it is a Fourth Amendment deviation or not," Crocker says. Guliani agrees. "How can you evaluate the constitutionality of a program if you do not know the effect it has on Americans?" He asks.
Opponents of Section 702 believe that if their programs were evaluated independently, they would find it costly and ineffective. "Every time one of these programs has been exposed and has actually been subjected to independent scrutiny, we discover that they have three things in common," says Patrick Eddington, national security and civil liberties analyst at the Cato Institute, referring to programs previous as Stellar Wind. "One is constitutionally violative, two are ineffective – they do not work – and the number three, they cost you and me, the taxpayer, millions of dollars."
The lack of definitive information on Section 702 has prevented Republicans from advocating the continuation of the law. In November, Representative Devin Nunes, who chairs the Permanent Select Committee on Intelligence, introduced a bill that would have reauthorized Section 702. In order to obtain support for it, his office distributed a two-page thematic pamphlet to members of the Congress. . He said that 702 was vital to stop the terrorist Haji Iman, and in one version, in all red caps, he declared "VOTE YES".