Will Congress Permanently OK Warrantless Government Surveillance?



Congress has until the end of the year to decide whether to reauthorize, revise, or retire a Foreign Intelligence Surveillance Act (FISA) provision that allows warrantless surveillance by the National Security Agency. FISA Section 702 allows the NSA to collect digital conversations of non-U.S. people abroad from internet and other communications providers.

The Congressional Internet Caucus, which is made up of 100 House and Senate members, recently sponsored a discussion on the reauthorization of the surveillance law. Panelists Elizabeth Goitein, co-director of the Liberty & National Security Program at the Brennan Center for Justice; Michelle Richardson, deputy director for freedom, security, and technology policy at the Center for Democracy and Technology; Adam Klein, Robert M. Gates Senior Fellow at the Center for a New American Security; and Deputy Assistant Attorney General Stuart Evans addressed options for how Congress might proceed on the issue.

Although some of the panel said that FISA should be reauthorized without a sunset option that would require it to come back for reauthorization in some number of years, privacy advocates disagree. The Reform Government Surveillance Coalition, which includes Alphabet Inc.’s Google, Twitter Inc., and other social media outlets and internet service companies, is hoping that Congress will revise 702 to add increased consumer privacy protection. 

Goitein later told Bloomberg BNA that there are other ways that the government can obtain internet communications under Section 702 that aren’t always utilized.

“There are three different programs under section 702,” she said. “First, the simplest one is telephone calls and country codes. Second, is upstream collection, which the NSA already does. Finally there is the PRISM program, and that concerns internet protocol addresses.”

During the panel discussion, Richardson, said intelligence officials and major internet companies are waiting for Congress to make a decision on 702, but Congress is asking the wrong question.

“Don’t think about whether the program should continue or not,” she said. “You’re Congress. You get to shape the program and write the statute. The question is, what will it look like?” 

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