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Credit to Author: Louise Matsakis| Date: Sat, 23 Dec 2017 12:00:00 +0000<\/strong><\/p>\n In 2013, former <\/span>National Security Agency contractor Edward Snowden<\/a> famously brought to light a series of classified US government spying programs. For the first time, the American people learned that the NSA was collecting millions of their phone calls and electronic communications\u2014emails, Facebook messages, texts, browsing histories\u2014all without a warrant.<\/p>\n Several of the programs Snowden revealed are authorized under Section 702 of the Foreign Intelligence Surveillance Amendments Act. The 2008 law was scheduled to sunset on December 31, but in a last-ditch effort Thursday, Congress has extend its authority<\/a> through January 19.<\/p>\n The Trump administration, meanwhile, believes that the authorization doesn\u2019t really expire until April, leaving lawmakers several months to either reform or strengthen the provision. Hanging in the balance is the legal framework the government largely relies on to conduct mass surveillance of foreigners, and Americans who communicate with them. Which makes it all the more concerning that the fight over Section 702's future has taken place largely in the dark.<\/p>\n Section 702 is intended to allow intelligence officials to electronically surveil \u201cpersons reasonably believed to be located outside the United States\u201d without a warrant. The provision was crafted after the Bush administration\u2019s secret warrantless surveillance program<\/a>, dubbed Stellar Wind, was disclosed to The New York Times<\/em> by whistleblower<\/a> and former Department of Justice prosecutor Thomas Tamm in 2005.<\/p>\n 'We\u2019re having a debate where the intelligence agencies are refusing to provide any information to Congress about the effectiveness of this program.'<\/p>\n Neema Singh Guliani, ACLU<\/p>\n The NSA collects hundreds of millions of video chats, instant messages, and emails under Section 702 by compelling companies like Facebook, AT&T<\/a>, and Google to hand them over. The law also allows the FBI to search through the NSA\u2019s databases without a warrant. Section 702 technically only authorizes intelligence agencies to collect information about foreign individuals, but citizens and permanent residents can easily get swept up by dragnet.<\/p>\n \u201cUnder the authority, the government can target anybody who has \u2018foreign intelligence,\u2019 that\u2019s defined so broadly,\u201d says Neema Singh Guliani, legislative council at the ACLU. \u201cIf you\u2019re a reporter who reports on global affairs, or an activist who works on global affairs, you could be a target under 702. We don\u2019t have exact clarity on who's been targeted.\u201d<\/p>\n Which only begins to get at the difficulty any discussion about Section 702 runs into. Democrats, Libertarians, and privacy groups believe it violates the Fourth Amendment, while Republicans argue that limiting its powers would impede national security. But most proponents of the expiring law, along with its detractors, don't truly 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 the programs it authorizes are at catching terrorists. The only individuals with a detailed understanding of Section 702's programs are those inside the US intelligence apparatus.<\/p>\n \u201cWe\u2019re having a debate where the intelligence agencies are refusing to provide any information to Congress about the effectiveness of this program and the effect it has on people\u2019s liberties,\u201d says Guliani. \u201cYou have a case where you have this massive program, and in many respects Congress is being asked to vote on it blind.\u201d<\/p>\n While the intelligence community does provide<\/a> statistics about how many foreigners Section 702 programs target, intelligence officials have refused to provide civil liberties groups and lawmakers with statistics about how many Americans\u2019 communications are vacuumed up into its massive surveillance apparatus.<\/p>\n \u201cThere are kind of nibbles or snapshots of how the program operates, but we don\u2019t really have an overall picture of what the numbers are,\u201d says Andrew Crocker, a staff attorney at the Electronic Frontier Foundation.<\/p>\n Earlier this year, the NSA agreed to provide the public with some information about how many American citizens may be impacted, only to later walk back<\/a> that promise. Coats explained the about face by saying that it \u201cremains infeasible\u201d for the government to cite a meaningful number.<\/p>\n The NSA has also largely refused to provide concrete evidence of Section 702's efficacy. The Foreign Intelligence Surveillance Court, which oversees Section 702, is required to release some of its opinions, and the Office of the Director of National Intelligence compiles a yearly transparency report<\/a>. But civil liberties advocates say the intelligence community has still not done enough to justify Section 702\u2019s programs.<\/p>\n \u201cThere\u2019s been no meaningful assessment, no data-driven cost-benefit analysis,\u201d says Sascha Meinrath, the founder of the Open Technology Institute at the New America Foundation and the founder of technology policy think tank X-Lab<\/a>. \u201cIt\u2019s a massive experiment with no checks, no scientific methodology. We have no idea if this is causing more harm than good, we have no way to know.\u201d<\/p>\n One of the only extensive government analyses conducted of Section 702 is an often-cited<\/a> 2014 report<\/a> compiled by the Privacy and Civil Liberties Oversight Board, an independent agency within the executive branch. It found that intelligence collected by Section 702 programs has been \u201cvaluable and effective in protecting the nation\u2019s security.\u201d The board also found \u201cno evidence of intentional abuse,\u201d but did recommend intelligence officials disclose more information.<\/p>\n Privacy advocates argue that the report is misleading, and its methodology opaque. \u201cWhat we need is an actual enumeration of what\u2019s happening, and transparency about the actual total costs, opportunity costs, the false positives and the false negatives,\u201d says Meinrath.<\/p>\n Because outside legal experts don\u2019t know exactly how Section 702 programs operate, it\u2019s difficult to tell if they\u2019re constitutional. Democratic senator Ron Wyden, a longtime critic of the NSA and member of the Senate Select Committee on Intelligence, believes that they create a \u201cbackdoor<\/a>\u201d to the Fourth Amendment, allowing law enforcement to search the communications of Americans without needing a warrant.<\/p>\n 'It\u2019s a massive experiment with no checks, no scientific methodology. We have no idea if this is causing more harm than good.'<\/p>\n Sascha Meinrath, Open Technology Institute<\/p>\n Some reforms to the program have already been made in response to Fourth Amendment concerns; in April, the NSA halted one kind of surveillance authorized under Section 702, called \u201cabout\u201d collection. It stopped amassing conversations concerning foreign targets, but that weren\u2019t from the targets themselves. If two Americans discussed a known terrorist over text, for instance, they previously could get swept into the NSA\u2019s database. The spy agency put the breaks on the program because it couldn\u2019t stop accidentally collecting information belonging to Americans.<\/p>\n Section 702's opacity, though, makes it hard to know to what extent the remainder of its programs infringe on the rights of US citizens. \u201cIt impairs the ability of the courts to even determine if this is a run around of the Fourth Amendment or not,\u201d says Crocker. Guliani agrees.\u201cHow can you assess the constitutionality of a program if you don\u2019t know the effect it has on Americans?\u201d she asks.<\/p>\n Opponents of Section 702 believe that if its programs were to be independently assessed, they would be found to be both expensive and ineffective. \u201cEvery time that one of these programs has been exposed, and really subjected to genuine independent scrutiny we find that they have three things in common,\u201d says Patrick Eddington, a homeland security and civil liberties analyst at the Cato Institute, referring to previous programs like Stellar Wind. \u201cOne they\u2019re constitutionally violative, two they\u2019re ineffective\u2014they don\u2019t work\u2014and number three, they cost you and me, the taxpayer, millions of dollars.\u201d<\/p>\n The lack of definitive information about Section 702 hasn\u2019t stopped Republicans from advocating for the law\u2019s continuation. In November, representative Devin Nunes<\/a>, who chairs the Permanent Select Committee on Intelligence, introduced a bill that would have reauthorized Section 702. In order to drum up support for it, his office circulated a two-page fear-mongering pamphlet to members of Congress. It said 702 was vital in apprehending terrorist Haji Iman, and in one version, in all red caps, declared \u201cVOTE YES.\u201d<\/p>\n