The FISA Amendments Act passed in 2008 and renewed in 2012 will expire next year, in 2017. Congress is now working on a renewal, but according to the EFF, the members of Congress in charge of drafting the bill are not holding open hearings so they can hear the opinion of the public or civil liberties groups.
The House Judiciary Committee will hold a “members-only” meeting as soon as next week to discuss Section 702 of the FISA law, which the NSA uses to enable programs such as PRISM and to gobble up all the Internet data by tapping into the cables of telecom companies.
So far, there hasn’t been any serious debate about FISA surveillance, even as we go into the third post-Snowden revelations year. The discussion about surveillance has usually been around the “bulk collection” of phone metadata. Although that type of surveillance has been limited slightly with the passing of the USA Freedom Act, it didn’t go far enough to ensure the NSA’s mass surveillance capabilities for phone calls are strictly limited.
However, the bigger problem is that people use phones less and less for voice communication, and they are increasingly communicating over the Internet. Plus, in the future nearly all communications will be done over the Internet, whether it’s texting or voice calling. This makes phone mass surveillance less of a problem and Internet mass surveillance a much bigger issue.
That’s why the next FISA law renewal will need to be debated at least as much as the USA Freedom Act was, instead of being passed in a hurry and almost in secret the way it happened a few days before Christmas in 2012. The current FISA Reauthorization Act will last until December 31, 2017.
The EFF joined with 24 other civil liberties, human rights and transparency organizations in sending an open letter to the House Judiciary Leaders, asking to hold open hearings and debates for the new FISA Amendments Act bill, especially the Section 702, which is the one giving the NSA many of its mass surveillance powers.
Here is the text of the letter in full:
Dear Chairman Goodlatte and Ranking Member Conyers,
The undersigned organizations appreciate the promise you made during the debates on USA Freedom to hold hearings on Section 702 of the Foreign Intelligence Surveillance Act. We believe that robust congressional oversight of the implementation of this statute, which is used to acquire the communications of Americans and people around the world alike without a warrant, is critical. We were surprised when we recently learned that you may soon hold a hearing in a classified format, outside of public view. Doing so for the entirety of the hearing neither fully satisfies the promise to hold hearings nor permits the public debate that this nation deserves. Rather, it continues the excessive secrecy that has contributed to the surveillance abuses we have seen in recent years and to their adverse effects upon both our civil liberties and economic growth.
All congressional proceedings should be conducted in accordance with this country’s highest principles of transparency and openness. Indeed, no committee should ever hold a classified hearing or briefing, when it can hold all or part of the hearing as an open, unclassified session. The Intelligence, Armed Services, and the Judiciary Committees of both chambers have been able to hold open hearings on matters of national security, deferring only those questions that require classified answers into a closed hearing. This judicious use of closed sessions meets the dual purposes of providing robust oversight and protecting national security.
In the case of Section 702 implementation oversight, a completely closed hearing is unnecessary to provide members with an adequate understanding of how the law is currently implemented by the executive branch and whether that exceeds Congress' original intent.
As you know, when the FISA Amendments Act was written, the deliberations happened largely in open session. Subsequently, executive branch officials have testified about the act in open session on at least six occasions1 since it was written.
The Privacy and Civil Liberties Oversight Board has published an unclassified report on the implementation of the statute. The government has itself declassified numerous relevant documents, including legal analyses and judicial interpretations. And, following the Snowden disclosures, the Senate Judiciary Committee held several public hearings on NSA surveillance programs, which included discussion of Section 702.
In today's global communications environment, disclosures of information about how Section 702 operates have confirmed the validity of many of the public’s and civil society's concerns that this statute implicates the privacy rights of millions of people in the US and around the world who communicate with friends and colleagues abroad, including human rights activists who rely on secure communications for their safety. The way Section 702 is utilized also affects journalists who interact with confidential sources to report on issues in the public interest, and criminal defendants whose prosecutions may involve the use of evidence derived from intelligence surveillance.
In all of these circumstances and many more, it is up to Congress to ensure that the Administration is not violating the rule of law and the rights we all hold dear.
We urge you to change the designation of your upcoming session on Section 702 to “open,” consistent with Congress's constitutional oversight role, long standing congressional practice, and principles of transparency and justice. To the extent that the committee goes forward with the closed hearing, we urge you to fulfill your prior commitment by promptly holding public hearings, which include representation and engagement of privacy, civil liberties, and human rights organizations.
American-Arab Anti-Discrimination Committee (ADC)
American Civil Liberties Union
American Library Association
Amnesty International USA
Brennan Center for Justice
Center for Democracy &Technology
The Constitution Project
Cyber Privacy Project
Electronic Frontier Foundation
Electronic Privacy Information Center (EPIC)
Free Press Action Fund
Government Accountability Project
Human Rights Watch
National Coalition Against Censorship
National Security Archive
New America’s Open Technology Institute
Project On Government Oversight
Reporters Committee for Freedom of the Press
Restore The Fourth
R Street Institute
Lucian Armasu is a Contributing Writer for Tom's Hardware. You can follow him at @lucian_armasu.