Senate panel debates federal surveillance law set to expire in 2017

WASHINGTON — A Senate panel Tuesday previewed a major debate over government surveillance law that will come to a head next year after a new Congress and president take office.

Members of the Senate Judiciary Committee heard from experts defending and criticizing a sweeping anti-terrorism law that allows U.S. intelligence agencies to spy on the electronic communications of foreigners living outside the United States but also collects a huge amount of email, texts, and other personal data from Americans.

That law, Section 702 of the Foreign Intelligence Surveillance Act Amendments of 2008, has been credited with foiling terrorist plots — including schemes to bomb the New York City subway system and the New York Stock Exchange. But critics say it also gathers an unknown amount of email, texts, photos and other electronic data from Americans. The FBI is then free to search that data without having to get a warrant as would normally be required under the Fourth Amendment of the U.S. Constitution.

“Recent data released by the Director of National Intelligence suggests that the number of these warrant-less, ‘back-door’ searches of 702 databases has doubled since 2013,” said Sen. Patrick Leahy of Vermont, the senior Democrat on the panel, which is considering whether to renew the law before it expires at the end of next year. “These back-door searches raise serious constitutional questions, particularly since the FBI can use them to investigate crimes having nothing to do with national security.”

Sen. Ron Wyden, D-Ore., and others have been pressing the Obama administration for five years to provide Congress and the public with an estimate of how much data is collected from Americans under the law. Data from Americans living in the United States can be swept up if they email, call, or communicate in any way electronically with foreigners who may or may not be suspected of terrorist activity. Administration officials have said they are developing a methodology to come up with an estimate of the impact on Americans.

Judiciary Committee Chairman Chuck Grassley, R-Iowa, said the law “has been highly important to our national security.” He cited findings by the federal Privacy and Civil Liberties Oversight Board that the law has been a huge boost to the nation’s anti-terrorism efforts.

“The (board) found unequivocally that it ‘has helped the United States learn more about the membership, leadership structure, priorities, tactics, and plans of international terrorist organizations,” Grassley said, quoting a report from the panel. ” ‘It has led to the discovery of previously unknown terrorist plots directed against the United States and foreign countries, enabling the disruption of those plots.’ “

With recent terrorist attacks in Paris, Brussels and San Bernardino, Calif., “Now is not the time to weaken our defenses,” said Kenneth Wainstein, a former homeland security adviser to President George W. Bush.

“To the contrary, now is the time to ensure that our Intelligence Community operators have the surveillance authorities they need and to reauthorize a statute that has done so much to protect our people and their liberties over the past eight years,” he said.

Elizabeth Goitein, co-director of the liberty and national security program at the Brennan Center for Justice at New York University School of Law, said technological advances in electronic communication since the statute was passed have resulted in more and more data for intelligence agencies to search.

“As a result of these changes, the amount of information about Americans that the National Security Agency intercepts, even when targeting foreigners overseas, has exploded,” she said.

The NSA’s collection of an estimated 250 million communications a year under Section 702 “undoubtedly includes millions, if not tens of millions, of Americans’ emails,” Goitein said.

Lawmakers from both parties have expressed concerns about the law, arguing that government agents should have to get warrants before they search Americans’ data. U.S. intelligence agencies are permitted to spy on foreign citizens outside the U.S. without having to obtain search warrants.

Last June, House members voted 255-174 to approve legislation by Thomas Massie, R-Ky., and Rep. Zoe Lofgren, D-Calif., to prohibit intelligence agencies from using federal funds to search the data they collect under Section 702 for information about Americans. It was the second time in two years that the House voted for the measure as part of its passage of defense spending bills. The legislation did not become law because the spending bills it was attached to never won final approval by both chambers of Congress.

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