Surveillance

A group of 11 Sens unveiled a proposal to substantially reform the National Security Agency’s warrantless surveillance program, potentially complicating renewal efforts underway in both chambers. The proposal, led by Sens Rand Paul (R-KY) and Ron Wyden (D-OR), would require investigators to obtain a warrant to query data belonging to Americans collected under the program. It would reauthorize the program for four years, but would add a compendium of other privacy and oversight protections to the existing framework.

Libertarian-leaning Sen Paul is the only Republican to sign onto the proposal. It’s unclear how many changes the group will be able to force to the controversial program, seen by federal investigators as one of the most vital tools the U.S. has to identify and disrupt terror plots. The law authorizing the program, known as Section 702, is due to sunset at the end of 2017.

The FBI hasn’t been able to retrieve data from more than half of the mobile devices it tried to access in less than a year, said FBI Director Christopher Wray, turning up the heat on a debate between technology companies and law enforcement officials trying to recover encrypted communications.

In the first 11 months of the fiscal year, federal agents were unable to access the content of more than 6,900 mobile devices, Wray said. “To put it mildly, this is a huge, huge problem,” Wray said. “It impacts investigations across the board — narcotics, human trafficking, counterterrorism, counterintelligence, gangs, organized crime, child exploitation.” The FBI and other law enforcement officials have long complained about being unable to unlock and recover evidence from cellphones and other devices seized from suspects even if they have a warrant, while technology companies have insisted they must protect customers’ digital privacy.

[Commentary] Congress is considering sensible reforms to ensure that Fourth Amendment warrant requirements apply to incidental and “about” collection. We believe that Section 702 authorities are important to our national security. But the unanimous opinion of the Review Group stands since 2013: Judges should approve Fourth Amendment search warrants before searching the communications of Americans.

[Peter Swire is the Elizabeth and Tommy Holder Chair of Law and Ethics at the Georgia Tech Scheller College of Business, and served as one of five members of President Obama's Review Group on Intelligence and Communication Technology. Dick Clarke is CEO of Good Harbor]

The Senate Intelligence Committee is planning on Oct 24 to debate in secret a bill that would reauthorize a powerful surveillance authority without imposing any new restraints on the FBI’s ability to search and use the communications of Americans gathered under that law in national security and criminal prosecutions.

The bill, drafted by Committee Chairman Richard Burr (R-NC), would enshrine the FBI’s right to use emails and other data collected from US tech companies without individualized warrants in cases­ related to terrorism, espionage and serious crimes such as murder and kidnapping. The legislation is aimed at revising a law often referred to as Section 702, a portion of the Foreign Intelligence Surveillance Act amended in 2008. It authorizes the government to gather the communications of foreign targets located overseas, a process that may incidentally sweep up the emails, phone calls and texts of Americans. The law is due to expire at the end of 2017.

FBI Director Christopher Wray warned that changing the rules of a soon-to-expire surveillance program could create new barriers to preventing terrorist attacks, similar to those that existed before 2001. In defending his agency’s information-sharing program with the National Security Agency — which civil liberties groups have criticized as a threat to privacy — Wray said his agents get just a small piece of the NSA’s intelligence gathering.

“The FBI only receives collection for a very small percentage of what the NSA does. It’s about 4.3 percent of the targets under NSA collection. But that 4.3 percent is unbelievably valuable to our mission,’’ Wray said. He did not say how large that database is. “Any material change to the FBI’s use of 702 would severely inhibit our ability to keep the American people safe,’’ he said.

The Russian government used a popular antivirus software to secretly scan computers around the world for classified US government documents and top-secret information, modifying the program to turn it into an espionage tool, apparently.

The software, made by the Moscow-based company Kaspersky Lab, routinely scans files of computers on which it is installed looking for viruses and other malicious software. But in an adjustment to its normal operations that the officials say could only have been made with the company’s knowledge, the program searched for terms as broad as “top secret,” which may be written on classified government documents, as well as the classified code names of US government programs, apparently.

A group of lawyers who served in former President Barack Obama's administration has moved for a temporary injunction against President Donald Trump's voter fraud commission, seeking to block it from accessing voter roll data from all 50 states.

The Protect Democracy Project, headed by two former associate White House counsels to Obama, claimed in court documents that President Trump's voter fraud probe caused an "immediate blow to the proper functioning of our democracy" by requesting the data without following proper legal procedures. "We're going to be arguing that it's going to be vital for the court to take action right away," Protect Democracy attorney Larry Schwartztol told the news service.

Chief Judge Robert Morin of the District of Columbia Superior Court ruled largely in favor of DreamHost, saying that the Department of Justice overstepped when it initially sought 1.3 million IP addresses that were logged at a website that helped organize nationwide protests against President Donald Trump on his inauguration day.

Federal authorities had initially obtained a warrant against DreamHost, the host of the disruptj20.org site, as part of its investigation into rioting and other violence on January 20, 2017. The ruling comes less than two months after government lawyers told the court it didn’t mean to seek so many IP addresses after all. Under new guidelines, DreamHost will not have to provide IP addresses or any other identifying information unless the government can show that a particular person was involved in alleged criminal behavior. Judge Morin ruled that while the DOJ could execute its warrant, "it does not have the right to rummage through the information contained on DreamHost's website and discover the identity of, or access communications by, individuals not participating in alleged criminal activity, particularly those who were engaging in protected First Amendment activities."

[Commentary] Congress is about to make a major decision about privacy protection, civil liberties and national security. The 2008 Foreign Intelligence Surveillance Amendments Act, including its most controversial provision, Section 702, is set to expire on Dec. 31. The two of us — both members of the panel that President Barack Obama appointed in 2013 to review the government’s foreign intelligence programs in the wake of Edward Snowden’s disclosures — agree that FISA Section 702 should be reauthorized but with a significant reform.

The government should no longer be permitted to search the data collected under Section 702 without a warrant when seeking information about US citizens and legal permanent residents. There is, however, one aspect of the way the 702 program has evolved that we believe needs to change: the FBI’s practice of searching the data for information on Americans without first obtaining a warrant. Americans are entitled to full protection of their privacy. They should not lose that protection merely because the government has information in a foreign intelligence database that it legally acquired. Importantly, the government collected that information by using a standard that could not be legally be employed to target an American anywhere in the world.

[Geoffrey Stone is a law professor at the University of Chicago. Michael Morell was the deputy director of the CIA from 2010 to 2013 and twice served as acting director.]

A bipartisan group of lawmakers is seeking to impose a significant new restraint on law enforcement’s access to data gathered by the National Security Agency under a powerful authority that enables collection of foreign intelligence on U.S. soil. The measure, contained in a bill unveiled Oct 4 by the House Judiciary Committee, is likely to set up a clash with the Trump administration in the coming weeks as the legal power is set to expire at the end of 2017. The administration wants the bill to be renewed without change — and permanently. At the same time, civil liberties groups are arguing for stronger limits. The law in question is often referred to as Section 702, a portion of the Foreign Intelligence Surveillance Act amended in 2008. Its renewal is the intelligence community’s highest legislative priority this year.