Congress faces decision on whether to rein in controversial spying program

WASHINGTON — Congress must decide by year's end whether to overhaul a controversial surveillance program that collects the content of Americans' emails, phone calls, text messages and other electronic communication without a warrant.

"This law is supposed to be a tool to fight terrorist threats overseas; instead it's being used as an end-run around the Constitution," said Sen. Ron Wyden, D-Ore., a member of the Senate Intelligence Committee. Wyden has promised to put a hold on any bill that allows the government to continue spying on Americans without a search warrant.

The program, known as Section 702 of the Foreign Intelligence Surveillance Act, was approved by Congress in 2008 to increase the government's ability to track and foil foreign terrorists in the wake of the 9/11 terrorist attacks.

It was designed to spy on foreign citizens living outside the U.S. and specifically bars the targeting of American citizens or anyone residing in the U.S. But critics say the program also sweeps up the electronic data of innocent Americans who may be communicating with foreign nationals, even when those foreigners aren't suspected of terrorist activity.

The government calls this "incidental surveillance," and intelligence officials have so far refused to tell Congress how many unknowing Americans have had their personal data collected.

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The law is set to expire at the end of December, leaving it to Congress to either renew the program as it is or make changes to strengthen privacy and constitutional protections. Lawmakers are not expected to simply let the law lapse. 

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The House Judiciary Committee is working to come up with a bipartisan reform bill that would allow legitimate surveillance of foreigners overseas to continue while better protecting Americans' civil liberties. It's not yet clear when that legislation will be unveiled.

Critics say Section 702 is more dangerous to Americans' civil liberties than the better-known Section 215 of the Patriot Act, which Congress voted in 2015 to rein in after its existence was disclosed by former NSA contractor Edward Snowden.

That program collected phone record metadata that revealed who Americans called, when the calls were made, and how long they lasted. It did not collect the actual content of conversations, but the Section 702 program does.

"The 702 program is about the actual data — your conversations, your photographs, your emails," said Rep. Thomas Massie, R-Ky., a former tech company executive, software developer and engineer who wants to stop the warrantless surveillance of Americans. "This is not just who you send it to, but what's in it."

Intelligence officials have appealed to lawmakers to renew the existing program, which they say has helped stop terrorist plots without violating Americans' privacy rights.

In one case, the CIA used intelligence gathered under Section 702 to uncover a photograph and other details that enabled allies in an African nation to arrest two Islamic State militants connected to planning "a specific and immediate threat against U.S. personnel and interests," according to joint testimony before the Senate Intelligence Committee in June by National Intelligence Director Dan Coats, National Security Agency Director Mike Rogers, Deputy Attorney General Rod Rosenstein and former acting FBI director Andrew McCabe.

"To protect privacy and civil liberties, this program has operated under strict rules and been carefully overseen by all three branches of the government," Coats and the other officials testified. "We believe that the Intelligence Community’s responsible handling of this important collection authority demonstrates our commitment to adhering to our core values while obtaining the information necessary to protect our nation."

Critics of the program say that rewriting the law to protect Americans from being spied on by their government will not hamper the ability of intelligence agencies to target foreign terrorists.

One of the biggest concerns critics have is that information collected "incidentally" on U.S. citizens is stored by the NSA in databases that the FBI and other law enforcement agencies can search to build criminal cases against Americans.

"We do know that the FBI routinely searched through this data for information to use on Americans on ordinary (non-terrorism) crimes," said Liza Goitein, co-director of the liberty and national security program at the non-partisan Brennan Center for Justice. "What we don't know is how often information that is obtained or derived from Section 702 surveillance is used against Americans."

For example, she said, if an American was talking to a cousin overseas who is not a U.S. citizen, and the American revealed that he or she had failed to pay federal taxes, that information could potentially be turned over to the IRS for prosecution.

The cousin would not even have to be a suspected terrorist in that scenario, Goitein said. The program only requires the government to believe that a person or group has "foreign intelligence information" — a vague term that critics say could easily result in the surveillance of journalists, human rights groups and foreign companies.

The NSA announced in April that it would no longer collect emails and texts involving Americans that mention surveillance targets but are not to or from those targets. The agency made that change after the Foreign Intelligence Surveillance Court said NSA analysts had violated surveillance rules.

"The problem with this voluntary change is that the NSA can start the surveillance up again any time and there would be no law on the books making it clear that it was prohibited," said Rainey Reitman, director of activism at the Electronic Frontier Foundation. "It's imperative that Congress write it into law."