Dysfunctions
Intelligence Community Pushes to Keep Surveillance Powers
By Jenna McLaughlin, FP, April 19, 2017
Apr 20, 2017 - 11:08:01 AM

Maintaining existing foreign intelligence powers is "the intelligence community’s top legislative priority for 2017," a new document notes.

The Office of the Director of National Intelligence Wednesday published a document advocating for the protection of what newly minted spy chief Dan Coats has described as the “crown jewels” of the intelligence community.

The Foreign Intelligence Surveillance Amendments Act, in particular Section 702, authorizes the bulk of the intelligence community’s overseas digital collection powers. A new informational questionnaire published by the ODNI, says maintaining those surveillance powers is “the intelligence community’s top legislative priority for 2017.”

If Congress didn’t reauthorize those authorities, it would “greatly impair the ability of the United States to respond to national security threats,” the document notes.

Congress gave the National Security Agency the power to surveil foreigners communicating outside the U.S. without obtaining individual court orders—to track terrorists, agents of foreign powers, international criminals, and others. The communications are collected through arrangements with companies and straight from the backbone of the Internet. Prior to that, each application to spy on an overseas target required the sign-off of the attorney general and the shadowy Foreign Intelligence Surveillance Court, a requirement top national security officials in March jointly described as “extraordinarily burdensome.”

At the end of 2017, those powers will expire, forcing Congress to debate whether changes to the law are necessary. After details about NSA programs came to light in 2013 when former NSA contractor Edward Snowden handed a trove of documents to journalists, privacy advocates have argued for reform. Particularly contentious is the FBI’s ability to search through the foreign database for Americans involved in domestic crime without first getting a warrant, or what’s been called the “backdoor search” loophole.

Rep. Bob Goodlatte, R-Va., Chairman of the House Judiciary Committee, has pledged to “reauthorize and reform” the espionage law, during a March 1 public hearing to discuss the legislation. “The House Judiciary Committee will work in a bipartisan fashion to reauthorize and reform this intelligence gathering program to ensure that it continues to be a critical tool to thwart terrorist attacks and that it best protects Americans’ civil liberties,” he said.

However, several lawmakers, including Sen. Ron Wyden, D-Ore., have said they would not reauthorize the spying program until the intelligence community answers key questions. In particular, lawmakers are concerned that Americans’ communications are swept up alongside foreign communications, but no one knows just how often that happens.

In the meantime, Republicans who typically defend national security powers are now raising concerns over surveillance issues, including President Donald Trump’s allegations that Trump Tower had been wiretapped, and the “unmasking” of Trump campaign officials as part of an investigation into possible Russian meddling in the 2016 U.S. Presidential election.

Rep. Trey Gowdy, R-S.C., grilled FBI Director James Comey in late March, angry that a U.S. official had the ability to view the names of Americans caught up in foreign surveillance. While questioning the FBI chief, Gowdy suggested the controversy over wiretapping and unmasking might throw a wrench in plans to reauthorize Section 702. “We both know it’s a threat,” he said.

Some privacy advocates are unsatisfied with the questionnaire’s failure to discuss the collection of Americans’ communications without a warrant. Limiting law enforcement’s use of that sensitive information is “commonsense reform,” argues Jake Laperruque, senior counsel at the Constitution Project, a nonprofit DC think tank focused on civil liberties.

For Laperruque, disclosing the number of Americans impacted by an ostensibly foreign program is a necessity. “It’s shocking that a mere 9 months from expiration, the [intelligence community] will still not make a firm commitment to reveal how many Americans are subject to incidental collection under Sec 702,” he wrote in an email to Foreign Policy.