Irish High Court Orders DPC to Move Forward in Facebook Investigation: The Irish High Court today issued an order in a follow-on case to Irish Data Protection Commissioner v. Facebook and Schrems ("Schrems II") and, as a result, the investigation into Facebook's U.S.-EU data transfers will move forward. The case arises from a complaint filed with the DPC in Ireland against Facebook by privacy activist Max Schrems in 2013 alleging that the company violated EU law when it transferred personal data to the U.S. (where the company is obliged to provide access to the government). The case has since been referred two separate times to the highest court in Europe (the CJEU), and has led to the invalidation of both the U.S.-EU Safe Harbor Agreement and the U.S.-EU Privacy Shield Agreement. The CJEU in the Schrems II decision last year remanded the case to the Irish DPC to determine whether Facebook violated the law and whether it was necessary to block Facebook's U.S.-EU data transfers. The DPC later issued a Preliminary Draft Decision to Facebook and laid out procedures for the inquiry. Both Facebook and Schrems challenged the DPC procedures. The DPC agreed in a settlement with Schrems that it would complete the investigation into his original complaint. The Irish High Court today rejected Facebook's challenge to the DPC inquiry, and both the Schrems complaint and this new DPC inquiry against Facebook will move forward. EPIC participated as an amicus curiae in Schrems II, arguing that U.S. Surveillance law does not provide adequate privacy protections or remedies for non-U.S. persons abroad. (May. 14, 2021)
Coalition Amicus Brief: Civil Litigants Must Be Able to Challenge FISA Surveillance: EPIC has joined a group of organizations across the political spectrum—EFF, Americans for Prosperity, the Brennan Center, FreedomWorks, and TechFreedom—to urge a federal appeals court to revive a challenge to an NSA surveillance program. A lower court judge in the case, Wikimedia v. NSA, found that Wikimedia could not demonstrate that its communications had actually been intercepted under the Upstream surveillance program—and that further litigation was barred for national security reasons. The amicus brief argues that “it is critical that those directly affected by mass foreign intelligence surveillance be able to obtain judicial review” because “FISA is broken.” EPIC has participated as amicus in several previous cases challenging FISA surveillance, including Smith v. Obama and Clapper v. Amnesty International. EPIC also brought the first challenge to the NSA telephone records surveillance program, In re EPIC, in the U.S. Supreme Court. (Jul. 9, 2020)
The Senate voted today to pass an amended version of the USA FREEDOM Reauthorization Act of 2020, which was passed by the House in March. The bill would end the NSA’s bulk telephone metadata program and make further reforms to the Foreign Intelligence Surveillance Act. The Senate agreed this week to further amendments by Senators Lee and Leahy that expand FISA protections, but rejected amendments proposed by Senators Wyden and Daines that would have protected Americans’ internet browsing and search histories. The adopted Leahy/Lee amendment strengthens the role of “amici curiae,” who are independent, expert advisors to the Foreign Intelligence Surveillance Court, by increasing their access to information, their power to raise issues with the Court, and the number of cases they are appointed in. Since amendments were adopted, the bill now returns to the House of Representatives for consideration. Members of both parties have expressed support for reform of the controversial NSA surveillance program. EPIC closely tracks the use of FISA authority. EPIC has advocated for significant FISA reforms, and recently advised Congress to limit Section 702 surveillance and to allow Section 215 to expire.
A report from the Department of Justice's Inspector General has uncovered widespread abuse of FISA surveillance authority by the DOJ. The Inspector General "identified apparent errors or inadequately supported facts" in each of the 25 surveillance applications it reviewed. The report follows an earlier investigation by the Inspector General which found the FBI personnel investigating Russian interference in the 2016 presidential election "fell far short of the requirement in FBI policy that they ensure that all factual statements in a FISA application are 'scrupulously accurate.'" EPIC closely tracks the use of FISA authority. EPIC has advocated for significant FISA reforms for more than a decade, and recently advised Congress to reform Section 702 of FISA and to sunset Section 215 of the Patriot Act. Members of both parties have recently expressed support for reforming U.S. surveillance authorities.
Congress is reviewing proposals to reform the Foreign Intelligence Surveillance Act. Several bills have been introduced, including a bill backed by EPIC and other civil liberties groups that would establish a warrant requirement for location data and internet browsing history, increase transparency, and strengthen the Privacy and Civil Liberties Oversight Board. Members of both parties have expressed interest in reform of the controversial NSA surveillance program. Even the FISA court has criticized the program, following abuses uncovered by the Inspector General. EPIC closely tracks the use of FISA authority. EPIC has advocated for significant FISA reforms, and recently advised Congress to limit Section 702 surveillance and to allow Section 215 to expire. The Section 215 program is scheduled to sunset on March 15.
The Privacy and Civil Liberties Oversight Board has issued a report emphasizing the minimal value of the NSA's call details records program. The Board recommended the end of the program, which the NSA suspended last year after concerns about compliance with legal standards established in the US Freedom Act. According to the PLCOB report, the government spent $100 million on the program, yet opened only one non-duplicative investigation. EPIC recently joined 44 civil liberties organizations in backing the end of the NSA surveillance program. In 2013, EPIC filed a petition with the U.S. Supreme Court, In re EPIC, challenging the lawfulness of the NSA's bulk collection of American's telephone records.
The House Judiciary Committee will consider this week the USA FREEDOM Reauthorization Act of 2020, a bill that will repeal authority to access call detail records, declassify opinions of the FISA court, and improve the Privacy and Civil Liberties Oversight Board. EPIC has joined 44 civil liberties organizations in support of similar legislation. But the bill does not address surveillance conducted under Section 702, concerning non-US persons. EPIC recently advised Congress to reform Section 702 and to end Section 215 surveillance of Americans.
EPIC has joined 44 civil liberties organizations in endorsing the Safeguarding Americans' Private Records Act of 2020 (S. 3242 / H.R. 5675), sponsored By Senator Wyden [D-OR] and, in the House, Rep. Lofgren [D-CA]. The bills would repeal the NSA's bulk telephone surveillance program, establish a warrant requirement for location data and internet browsing history, increase transparency, and strengthen the Privacy and Civil Liberties Oversight Board. EPIC recently advised Congress to reform Section 702 of FISA and to sunset Section 215 of the Patriot Act.
The Foreign Intelligence Surveillance Court this week criticized the FBI for misleading judges, following a scathing report from the Inspector General. In a rare public order, the Court explained that the Bureau's representations were "antithetical to the heightened duty of candor" that the government must satisfy in surveillance applications. Presiding Judge Collyer wrote, "The frequency with which representations made by F.B.I. personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other F.B.I. applications is reliable." The Court ordered the FBI to propose new procedures by January 10, 2020. EPIC has advocated for significant FISA reforms for almost 20 years, and recently advised Congress to limit Section 702 of FISA and to sunset Section 215 of the Patriot Act.
The Inspector General's review of FISA applications for the FBI's investigation into Russian interference in the 2016 Presidential Election raises new concerns about the use of the surveillance authority. The Inspector General concluded that the FBI investigation was properly predicated and there was no evidence of political bias or improper motivation. However, the IG Report also detailed significant misrepresentations and errors made in the investigation designated "Crossfire Hurricane." The Report found that "FBI personnel fell far short of the requirement in FBI policy that they ensure that all factual statements in a FISA application are 'scrupulously accurate.'" EPIC has advocated for significant FISA reforms for more than a decade, and recently advised Congress to reform Section 702 of FISA and to sunset Section 215 of the Patriot Act.
In advance of a hearing on the Foreign Intelligence Surveillance Act, EPIC has sent a statement to the House Judiciary Committee urging Congress to end the NSA's phone record collection program, known as "Section 215." Section 215 of the Patriot Act, according to White House legal advisors including now Supreme Court Justice Brett Kavanaugh, allowed the NSA to collect in bulk the telephone records of Americans. In 2013, following the Snowden disclosures, EPIC filed a petition with the Supreme Court, challenging the lawfulness of Section 215. Congress found the 215 program was ineffective and passed the USA Freedom Act to limit data collection. NSA has since acknowledged significant compliance problems with the reformed program, and the Director of National Intelligence confirmed that the limited collection program was suspended. Section 215 will sunset unless Congress chooses to renew the program.
EPIC provided comments to the European Commission to inform the third annual review of the EU-U.S. Privacy Shield, a framework that permits the transfer of Europeans' personal data to the U.S. EPIC detailed the latest developments in the U.S., including the failure to reform bulk surveillance under Section 702 of FISA, the absence of comprehensive federal privacy law and a data protection authority, and an executive order to collect data about non-citizens from across the federal government. EPIC also applauded appointments to the PCLOB and the U.S. endorsement of the OECD AI Principles. The Commission approved Privacy Shield last year, but urged the U.S. to adopt privacy legislation and to join the International Privacy Convention. The European Commission will make a determination about whether to renew the Privacy Shield this fall.
The Administrative Office of the U.S. Courts has issued the 2018 report on activities of the Foreign Intelligence Surveillance Court. The 2018 report reveals a significant decline in the number of total applications to the FISC. There were 1,318 FISA applications in 2018, down by three hundred applications from the total of 1,614 in 2017. The scrutiny of FISA applications by the Court remained steady after an uptick last year: 985 orders were granted, 261 orders were modified, 42 orders were denied in part, and 30 applications were denied in full. EPIC testified before Congress in 2012 on the need to improve review of FISA applications. EPIC Senior Counsel Alan Butler also recently appeared before Europe's highest court to provide expert analysis on U.S. surveillance law, including FISA authorities.
The Privacy and Civil Liberties Oversight Board has announced three new oversight projects. The PCLOB reviews federal agency programs to ensure they do not diminish privacy and civil liberties. The Board said it will review: (1) the use of biometrics, such as facial recognition, in airports; (2) how the FBI queries data collected under the Foreign Intelligence Surveillance Act's Section 702, including searches for US person information called "backdoor searches"; and (3) oversight of passenger identity databases used by airlines. Earlier this year, EPIC sent a statement to the Board urging limits on the government use of facial recognition and and end to backdoor searches. In 2012, EPIC sent a detailed statement to PCLOB outlining priorities for the agency. In 2016, EPIC awarded former PCLOB Board Member Judge Patricia Wald with the EPIC Champion of Freedom Award.
According to the Office of Director National Intelligence 2018 report, the use of information on U.S. persons collected under Foreign Intelligence Surveillance Act increased. The instances in which the NSA "unmasked" - revealed a U.S. person's identity in foreign intelligence data - to another agency grew from 9,529 to 16,721. In 2018, the government also searched domestic call detail records for U.S. persons at five times the rate in 2017, rising from 31,196 to 164,682. Notably, the government notifications to defendants of the use of FISA information in criminal proceedings increased from 7 in 2017 to 14 in 2018. EPIC previously testified before Congress on the need for more public reporting about the use of FISA for domestic surveillance. Several of EPIC's recommendations, including greater detail on government surveillance activities, were incorporated in the USA Freedom Act.
The Department of Commerce has told the President of the European Parliament that the US is in compliance with the Privacy Shield, a pact that permits US companies to obtain the personal data of Europeans. The statement follows a resolution of Parliament to suspend the international arrangement if the U.S. did not comply in full by September 1. The Parliament cited the Cambridge Analytica data breach, the reauthorization of FISA Section 702 without reform, the failure to stand up the PCLOB, the passage of the CLOUD Act, and the absence of a Privacy Shield ombudsman. The Commerce Department disputed the Parliament's findings but failed to show progress on the issues identified. EPIC highlighted similar problems with data protection in the United States in recent comments to the European Commission. Almost six months have passed since the FTC reopened the investigation of Facebook's compliance with the 2011 consent order, which followed a complaint from EPIC and other consumer privacy organizations.
The NSA's Office of Inspector General issued the first unclassified semi-annual report to Congress on the National Security Agency. The report describes the internal watchdog's audits, studies, and investigations of the NSA's activities. Among other findings, the OIG uncovered improper searches through U.S. persons' data collected under the Foreign Intelligence Surveillance Act, as well as "many instances of noncompliance" with rules to secure NSA networks, systems, and data. In 2012, EPIC testified before Congress on the need for better reporting on the use of FISA authorities. EPIC also routinelyhighlights reporting on federal surveillance under the Wiretap Act. In EPIC v. NSA, EPIC obtained the Presidential Decision Directive, outlining the agency's authority for domestic surveillance.
EPIC and a coalition of privacy and civil liberties groups urged the Office of the Director of National Intelligence to abide by the transparency requirements of the USA FREEDOM Act. The Act ended the NSA's bulk collection of domestic call detail information. The Act also requires the public reporting of the number of unique identifiers gathered under the Foreign Intelligence Surveillance Act. A related letter to the House Judiciary Committee urged the Committee to oversee the reporting requirement. In 2012, EPIC testified before Congress on the need for better reporting on the use of FISA authorities. Several of EPIC's recommendations were incorporated in the USA FREEDOM Act.
According to the Office of Director National Intelligence 2017 report, the number of Foreign Intelligence Surveillance Act orders to collect call records more than tripled last year, from 151 million records in 2016 to 534 million in 2017. In 2012, EPIC testified before Congress on the need for more public reporting concerning the use of FISA authorities. Several of EPIC's recommendations, including better reporting on government surveillance activities, were incorporated in the USA FREEDOM Act.
EPIC and other leading open government organizations urged Congress to promote transparency and accountability of the Intelligence agencies. The groups called for the release of annual public reports, all significant opinions by the Foreign Intelligence Surveillance Court, and an accounting on the number of Americans subject tp foreign intelligence surveillance. EPIC previously called on lawmakers to require federal agencies to obtain a warrant before searching information about Americans in foreign intelligence databases. Through a Freedom of Information Act lawsuit, EPIC obtained a report detailing the FBI's failure to follow procedures regarding the use of foreign intelligence data for a domestic criminal investigation. EPIC has also testified in Congress on reforms to the Foreign Intelligence Surveillance Act.
In a decision that could jeopardize relations with Europe, Congress has renewed "Section 702" of the Foreign Intelligence Surveillance Act, which permits broad surveillance of individuals outside of the United States. The FISA Amendment Reauthorization Act also permits government surveillance of Americans and restarts the controversial "about" collection program. Congress rejected updates, including limits on data collection, that would preserve a privacy agreement between Europe and the United States. The European Court of Justice will also soon decide whether to allow data transfers from Ireland to the United States. EPIC served as the US NGO amicus curiae in that case.
As the result of a Freedom of Information Act lawsuit EPIC v. NSD, EPIC has obtained a report from the Department of Justice National Security Division detailing the FBI's use of foreign intelligence data for a domestic criminal investigation. Section 702 of the Foreign Intelligence Surveillance Act authorizes the surveillance of foreigners located abroad. However, the FBI can also use this data to investigate Americans. The report obtained by EPIC also shows that the FBI analyst failed to follow internal guidance to notify superiors of the search, raising questions about whether the FBI is accurately reporting these searches. The USA Rights Act, now pending in Congress, would require a federal agency to obtain a warrant to search foreign surveillance data for information on Americans.
Senator Patrick Leahy (D-VT) and Senator Mike Lee (R-UT) have introduced the USA Liberty Act to reform surveillance under Section 702 of the Foreign Intelligence Surveillance Act. The Leahy-Lee bill would close the "backdoor search" loophole by requiring a probable cause court order before the government can review the contents of Americans' communications. The Leahy-Lee bill also codifies the ban on collecting "about" communications, mandates the appointment of amicus curiae for review of the surveillance programs, and establishes new reporting requirements. In a Freedom of Information Act lawsuit, EPIC v. NSD, EPIC is seeking the release of a Foreign Intelligence Surveillance Court report detailing the FBI’s use of section 702 data for domestic criminal purposes.
A federal court, ruling in an EPIC FOIA lawsuit, has ordered the Department of Justice to defend the agency's refusal to release portions of its Foreign Intelligence Surveillance Act (FISA) reports. The semiannual reports, prepared for Congressional oversight committees, summarize significant FISA Court decisions and include the total number of FISA applications filed by the government and the number of U.S. persons targeted for surveillance. Though the court ruled that the DOJ can withhold some of the material requested by EPIC, the court found multiple "inconsistencies in the redactions that the government must address." Previously, EPIC's FOIA request and lawsuit led to the release of secret documents about the government's use of pen registers to collect records of private communications.
Eleven senators introduced bipartisan legislation to reauthorize the Foreign Intelligence Surveillance Act with significant new civil liberties protections. Among other reforms, the USA Rights Act codifies the ban on collecting "about" communications, prohibits collection of domestic communications, expands the powers of the Civil Liberties Oversight Board, and requires independent amicus review during the FISC's annual authorization. The bill does not establish certain protections sought by Europeans during the recent Privacy Shield review. Senate Intelligence Committee Chair Richard Burr bill would expand 702 surveillance authorities. EPIC and a coalition of organizations recently urged the markup hearing on the proposal be opened to the public.
EPIC joined a coalition of privacy and civil liberty organizations urging the Senate Intelligence Committee to open to the public any markup hearing on proposals to reauthorize Section 702 of the Foreign Intelligence Surveillance Act, which authorizes the surveillance of foreigners located abroad. "To the greatest degree possible, the consideration of legislation pertaining to Section 702...Should take place in public," the groups made clear in the letter to Senate Intelligence Committee leaders. EPIC has previously backed open public hearing on important security matters, include consideration of the Cyber Intelligence Sharing and Protection Act of 2013.
EPIC and a coalition of over 50 organizations called on lawmakers to require federal agencies to obtain a probable cause warrant before searching foreign intelligence databases for information about U.S. citizens and residents. Section 702 of the Foreign Intelligence Surveillance Act allows agencies - without a warrant and in a broad range of circumstances - to search for information about Americans among communications collected for foreign intelligence purposes. In a letter to leaders of the House Judiciary Committee, the groups explained that this practice "undermine[s] constitutional protections create an unacceptable loophole to access Americans' communications in criminal and foreign intelligence investigations alike." EPIC and a coalition also recently urged Director of National Intelligence Dan Coates to uphold a promise to give a public estimate of how many Americans are caught up in NSA surveillance of foreign targets. EPIC is currently pursuing a Freedom of Information Act request for a government report to the Foreign Intelligence Surveillance Court about FBI search of Section 702 data for domestic criminal investigations.
Senator Dianne Feinstein, the former chair of the Senate Intelligence Committee, today outlined reforms to Section 702 surveillance authority. The law, which allows the NSA "PRISM" and "Upstream" surveillance programs, is set to expire at the end of this year. Senator Feinstein would end permanently the NSA's "about" searches, expand the amicus role at the intelligence court, and require the continued sunsetting of FISA authorities created in the The FISA Amendments Act of 2008. In 2012, EPIC testified before Congress on the need to establish better oversight for Section 702 prior to renewal.
EPIC has filed an urgent FOIA request with the Department of Justice for the release of the warrant for wiretapping the Trump Tower in New York city. The President has charged that President Obama "had [his] wires tapped in Trump Tower." EPIC has filed a formal Freedom of Information request of the public release of any applications filed under "FISA" for wiretapping in Trump Tower. Such an order would have been filed by the National Security Division of the Justice Department and approved by the Foreign Intelligence Surveillance Court. The complete text of the Foreign Intelligence Surveillance Act is available in the Privacy Law Sourcebook (EPIC 2016) at the EPIC Bookstore.
In advance of a hearing on Section 702 of the Foreign Intelligence Surveillance Act, EPIC has sent a letter to the House Judiciary Committee urging increased transparency and new public reporting of the Government's surveillance activities. EPIC also highlighted that Section 702 is the central focus of multiple current legal challenges to international data transfer agreements occurring abroad. Section 702, which authorizes the bulk surveillance on the communications of non-U.S. persons, sunsets on December 31, 2017. EPIC testified before the Committee during the 2012 FISA reauthorization hearings.
The Senate Judiciary Committee held a hearing on the FISA Amendments Act, a law that grants the government broad surveillance powers over Internet communications. The Act, commonly referred to as "Section 702,: is the basis for the NSA’s “PRISM” program. EPIC testified before the House Judiciary Committee in 2012 on the need to limit the scope of Section 702 surveillance and to improve transparency of the Foreign Intelligence Surveillance Court. US and EU NGOs have since called for the end of the section 702. This week Senator Patrick Leahy (D-VT) stated that "additional reforms are needed to protect Americans’ privacy, and restore global trust in the U.S. technology industry."
The Department of Justice has published the 2015 FISA report, which summarizes the use of the Foreign Intelligence Surveillance Act. The report also details the number of applications rejected or modified by the FISA Court (FISC). Overall, the Government’s applications for FISA warrants has declined since 2003 but there was a slight uptick this year with 1,456 orders granted. A significant number of orders were modified by the FISC. The FISC modified 80 orders and the Government even withdrew one application. Prior to the USA FREEDOM Act, which limited bulk collection under section 215, the FISC modified many of those orders.
EPIC, joined by over 30 other organizations, urged the Director of National Intelligence, James Clapper, to disclose data on how many Americans are caught up in NSA surveillance of foreign targets. Americans’ communications are incidentally collected under Section 702 of the Foreign Intelligence Surveillance Act, and the FBI searches this data without a warrant or judicial oversight. EPIC, in testimony before Congress and comments to the Privacy and Civil Liberties Oversight Board, has repeatedly called for greater oversight and transparency of surveillance authorities.
The House of Representatives has passed the USA Freedom Act of 2015. The bill would end the NSA's controversial domestic telephone record collection program--a program the Second Circuit Court of Appeals recently ruled was unlawful. The Freedom Act would also establish new transparency requirements for the Foreign Intelligence Court, recommended by EPIC in testimony before the House Judiciary Committee in 2012. EPIC also opposed renewal of the NSA's Section 215 orders and petitioned the Supreme Court to suspend the program. The Senate is expected to take up the bill before the June 1 expiration of Section 215 of the Patriot Act.
The Second Circuit Court of Appeals ruled today that the NSA's telephone record collection program exceeds legal authority. The government claimed that it could collect all records under the Section 215 "relevance" standard. But the court rejected that argument and held that "such an expansive concept of 'relevance' is unprecedented and unwarranted." The conclusion mirrors the argument EPIC, and a coalition of technical expert, legal scholars, and former members of the Church Committee made in Petition to the Supreme Court in 2013. EPIC explained in its petition, "It is simply not possible that every phone record in the possession of a telecommunications firm could be relevant to an authorized investigation." The Second Circuit found that Section 215 does not "authorize anything approaching the breadth of the sweeping surveillance at issue here."
Famed technologist and EPIC Advisory Board member Bruce Schneier pushed back against media claims that Edward Snowden's revelations about the NSA have had little impact on Internet users. A recent global survey found that 39% of Internet users who have heard of Snowden have taken steps to protect their online privacy. Some news articles have characterized these users as "merely 39%" and "only 39%." But Schneier did the math and found that Snowden’s impact has been far from insignificant: "706 million people have changed their behavior on the Internet because of what the NSA and GCHQ are doing." A recent Pew survey also indicates that the NSA revelations have had a dramatic impact on Internet users. Last year, EPIC filed a petition to the U.S. Supreme Court to stop the NSA's collection of domestic telephone records, following the release of the "Verizon Order." For more information, see EPIC: In re EPIC, EPIC: Smith v. Obama, and EPIC: Foreign Intelligence Surveillance Act Reform.
The Investigatory Powers Tribunal, which reviews complaints of unlawful surveillance by Britain's intelligence agencies, ruled that mass collection of online communications is legal. The complaint was brought by several privacy rights groups in the UK and focused on GCHQ's electronic surveillance program, TEMPORA, and information the UK spy agency obtained through NSA's PRISM and Upstream programs. The privacy rights groups plan to appeal the decision to the European Court of Human Rights. EPIC previously challenged the NSA's mass surveillance of U.S. phone records in a 2013 petition to the Supreme Court. EPIC's petition argued that the Foreign Intelligence Surveillance Court exceeded its authority when it ordered Verizon to turn over records on all of its customers to the NSA. The EPIC petition was supported by legal scholars and former members of the Church Committee. For more information, see In re EPIC and EPIC: Foreign Intelligence Surveillance Act Reform.
Today Senator Patrick Leahy (D-VT) urged President Obama to end the dragnet collection of U.S. telephone records under Section 215 of the Patriot Act. The current authorization for the NSA's bulk collection program expires on Friday, December 5, 2014. Senator Leahy's comments follow the recent efforts to pass the USA FREEDOM Act of 2014, which would end the NSA's surveillance program. Senator Leahy said that ending the reauthorization of the program "would not be a substitute for comprehensive surveillance reform legislation - but it would be an important first step." In June EPIC, joined by many organizations, urged the President and Attorney General to end the bulk collection program. And in 2013 EPIC petitioned the Supreme Court, arguing that a special surveillance court exceeded its authority when it ordered Verizon to turn over records on all of its customers to the NSA. For more information, see In re EPIC and EPIC: Foreign Intelligence Surveillance Act Reform.
In a Freedom of Information Act lawsuit against the Department of Justice, EPIC filed a Motion for Summary Judgment on Friday arguing that the agency improperly withheld surveillance reports sought by EPIC. The semiannual reports, prepared for Congressional oversight committees, summarize significant FISA Court decisions and include the total number of FISA applications filed by the government and the number of U.S. persons targeted for surveillance. They are similar to reports that are routinely disclosed to the public. EPIC argued that the "FISA Pen Register" reports should also be disclosed because they describe topics of "utmost importance to the public and are necessary to inform the ongoing debate over current surveillance authorities." EPIC maintains a summary of all the annual FISA statistics published by the Attorney General. For more information, see EPIC v. DOJ: FISA Pen Register Reports and EPIC: FISA Court Orders.
An effort led by Senator Patrick Leahy (D-VT) to pass the USA FREEDOM Act failed on a narrow procedural vote last night. The FREEDOM Act would have ended the NSA's bulk collection of US telephone records. The bill would also improve oversight and accountability of the Foreign Intelligence Surveillance Act. Last year, EPIC petitioned the Supreme Court to suspend the bulk collection of Americans' telephone records. EPIC's petition was supported by dozens of legal scholars and former members of the Church Committee. EPIC also testified in Congress in support of improved reporting for domestic surveillance activities. For more information, see EPIC: Foreign Intelligence Surveillance Act Reform and In re EPIC.
In a FOIA lawsuit against the Department of Justice, EPIC has obtained many documents about the NSA's Internet Metadata program. These include the Government's original FISA application seeking authorization to collect data from millions of e-mails, as well as declarations from NSA officials describing the program. The documents show that FISA Court Judge John Bates chastised the agency for "long-standing and pervasive violations of the prior [court] orders in this matter.'' The FISA Court first authorized the program in 2004, but the documents obtained by EPIC show that the legal justification was not provided to Congress until 2009. The documents also reveal that the DOJ withheld information about the program in testimony for the Senate Intelligence hearing prior to the reauthorization of the legal authority. The program was shut down in 2011 after a detailed review. For more information, see EPIC v. DOJ (FISA Pen Register) and EPIC: Foreign Intelligence Surveillance Court.
Today Senator Patrick Leahy (D-VT), joined by Democratic and Republican Senators, introduced legislation to end the NSA's practice of collecting telephone records of Americans. Leahy described the bill as "the most significant reform of government surveillance authorities since Congress passed the USA PATRIOT Act 13 years ago." The USA Freedom Act would require require the government to specify specific "search terms" to obtain telephone record information. The government would have to demonstrate that it has a "reasonable, articulable suspicion" that the search term is associated with a foreign terrorist organization. The bill also requires a comprehensive transparency report for the use of FISA surveillance authorities. However, the bill exempts the FBI from certain reporting requirements. Civil liberties organizations support the bill. EPIC previously filed a Petition for Mandamus with the U.S. Supreme Court, seeking to end the bulk collection of American's phone records. EPIC's petition was supported by legal scholars, technical experts, and former members of the Church Committee. For more information, see In re EPIC and EPIC: FISA Reform.
The Administrative Office of the U.S. Courts has issued the 2013 Wiretap Report, detailing the use of surveillance authorities by law enforcement agencies. This annual report, one of the most comprehensive issued by any agency, provides an insight into the debate over surveillance authorities and the use of privacy-enhancing technologies. In 2013, wiretap applications increased 5%, from 3,576 to 3,395. Authorities encountered encryption during 41 investigations, but encryption prevented the government from deciphering messages in only 9 cases. This statistic contradicts claims that law enforcement agencies are "going dark" as new technologies emerge. Of the 3,074 individuals arrested based on wiretaps in 2013, only 709 individuals were convicted based on wiretap evidence. EPIC has repeatedly called on greater transparency of FISA surveillance, citing the Wiretap Report as a model for other agencies. EPIC also maintains a comprehensive index of the annual wiretap reports and FISA reports. For more information, see EPIC: Title III Wiretap Orders, EPIC: Wiretapping, and EPIC: Foreign Intelligence Surveillance Act.
The U.S. House of Representatives has voted to adopt a modified USA "FREEDOM" Act. The bill no longer prohibits bulk collection of communications records. Other key provisions were also removed. Senator Leahy said that the bill is "an important step towards reforming" surveillance authorities, but expressed disappointment that the current version "does not include some of the meaningful reforms contained in the original" bill. In 2013 EPIC filed a Petition to the Supreme Court seeking to end bulk collection of telephone call records. EPIC also testified before the House in 2012 that the FISA should not be renewed without adoption of new reporting requirements. For more information, see EPIC: FISA and EPIC: FISA Reform.
The House Judiciary Committee has scheduled a markup of the USA Freedom Act. The proposed "Manager's Amendment", sponsored by James Sensenbrenner (R-WI), would prevent bulk collection of phone records and other business records, and would limit the scope of phone record searches. The bill would also (1) limit the collection of US persons communications by the NSA's PRISM program, (2) require public reports on the use of FISA surveillance, (3) require declassification of significant FISA Court opinions, and (4) create a public advocate at the FISA Court. In 2012, EPIC testified before the House Judiciary Committee on the need for public reports and the declassification of significant FISC opinions. In 2013, EPIC filed a petition with the Supreme Court, alleging that the bulk collection of telephone record was unlawful. For more information, see EPIC: FISA Reform and In re EPIC.
The Department of Justice has published the 2013 FISA Report. The brief report provides summary information about the government's use of the Foreign Intelligence Surveillance Act. In 2012 the Foreign Intelligence Surveillance Court granted 1,789 FISA orders and 212 "Section 215" orders. In 2013, there were 1,588 requests to conduct FISA surveillance, with 34 modifications. The FISC also granted 178 business record orders under Section 215, with 141 modified by the court. The significant number of modified orders indicates that the government's initial applications are too broad. For example, the controversial NSA Metadata program, was authorized by the surveillance court under a modified order. It is possible that in 2013 the court authorized other bulk collection programs. For more information, see EPIC: FISC Orders 1979-2014 and EPIC: FISA Graphs.
As a result of an FOIA lawsuit, EPIC has obtained copies of the Attorney General Reports on the government's electronic surveillance activities. These reports have been submitted to Congress every six months since 2001 but have never before been disclosed to the public. These reports include new details about government collection of telephone and Internet records. The reports include the number of US persons targeted for "Pen Register" surveillance under the Foreign Intelligence Surveillance Act. The reports also contain noncompliance incidents and significant foreign intelligence court opinions, but those details have been withheld by the Justice Department. The documents obtained by EPIC also show that the Justice Department told Congress that the collection of telephone subscriber information would decrease, even after the section 215 bulk collection program began. The case is EPIC v. Dept. of Justice, No. 13-961. For more information, see EPIC v. DOJ - FISA Pen Registers and EPIC: FISA Stats.
In a Freedom of Information Act lawsuit, EPIC has obtained reports that detail the number of times the Surveillance Court authorized the use of techniques that gather the telephone numbers and metadata of phone customers and Internet users. The previously secret reports obtained by EPIC cover the period between 2000 and 2013. The reports reveal a dramatic increase in the use of these techniques in 2004 and then a significant reduction in 2008, likely the consequence of a shift to other investigative techniques. The documents show that nearly all applications to the Surveillance Court were approved without modifications. In 2013, EPIC petitioned the Supreme Court to end the bulk telephone record collection program. Former members of the Church Committee and dozens of legal scholars supported the EPIC petition. For more information see: EPIC v. Department of Justice - Pen Register Reports, EPIC: Foreign Intelligence Surveillance Court Orders 1979-2012, and In re EPIC.
The Federal Communications Commission has invited public comments on a petition requesting the FCC to rule that the sale of consumer phone records to the government is a violation of the federal Communications Act. EPIC joined the petition, which was organized by Public Knowledge. In 2013, EPIC urged the FCC to determine whether AT&T violated the Communications Act when it sold private consumer call detail information to the Drug Enforcement Administration and Central Intelligence Agency. In 2013 EPIC also wrote to the FCC to explain that Verizon had likely violated the Communications Act when it disclosed telephone records to the NSA. Public comments on the petition are due January 17, 2014 and reply comments are due February 3, 2014. For more information, see EPIC: CPNI (Customer Proprietary Network Information), and EPIC: Foreign Intelligence Surveillance Act.
The Senate confirmed the reappointment of Judge Patricia M. Wald to the Privacy and Civil Liberties Oversight Board. Judge Wald's current term was set to expire next month, but President Obama re-nominated her on March 21, 2013. Last year, EPIC recommended that the Oversight Board, consistent with its mandate, pursue a broad agenda, including (1) suspension of the Fusion Center Program ; (2) limiting closed-circuit television surveillance; (3) eliminating the use of body scanners; (4) establishing privacy regulations for drones; (5) improving Information Sharing Environment (ISE) and Suspicious Activity Reporting (SARS) Standards; and (6) Privacy Act adherence. More recently, EPIC addressed the Board at a workshop on NSA Surveillance. And in response to a public rulemaking, EPIC also provided extensive comments on a proposed rule governing the Board's Freedom of Information Act practices. The Board adopted nearly all of EPIC's recommendations on transparency. For more information, See EPIC: Foreign Intelligence Surveillance Act and EPIC: Open Government.
The Review Group on Intelligence and Communications Technologies, established to recommend surveillance reforms, will send a final report to the President this Sunday. According to one news article, the task force will recommend putting a civilian leader in charge of NSA, separating out the code-breaking "Information Assurance Directorate," and splitting the U.S. Cyber Command off into a separate military unit. The Review Group will also recommend new limits on the NSA’s ability to search telephone call records, proposing that telephone records be stored with a third party rather than the NSA. The group will also recommend safeguards for the data of European citizens, and restrictions on the use of National Security Letters. Earlier this year, EPIC filed a petition with the U.S. Supreme Court, supported by legal scholars and former members of the Church Committee, arguing that the NSA bulk collection program was unlawful. For more information, see EPIC: Foreign Intelligence Surveillance Act, EPIC: Foreign Intelligence Surveillance Act Reform, and EPIC: In re EPIC.
EPIC has joined a petition to the Federal Communications Commission, organized by Public Knowledge, that asks the FCC to rule that the sale of consumer phone records to the government is a violation of the federal Communications Act. Last month, EPIC urged the FCC to determine whether AT&T violated the Communications Act when it sold private consumer call detail information to the Drug Enforcement Administration and Central Intelligence Agency. And in June, following the initial Snowden disclosure, EPIC wrote to the FCC to explain that Verizon had likely violated the Communications Act when it disclosed telephone records to the NSA. EPIC has also long supported the FCC's consumer privacy enforcement authority, filing amicus briefs in significant cases, including US West v. FCC and NCTA v. FCC, to defend the agency’s privacy regulations. For more information, see EPIC: CPNI (Customer Proprietary Network Information), EPIC: Foreign Intelligence Surveillance Act.
EPIC has filed a Freedom of Information Act lawsuit for the reports that detail the NSA's collection of call record information from US telephone companies. Citing the Department of Justice's failure to comply with EPIC original EPIC's FOIA Request and the urgency to inform the public, EPIC has also filed a motion for a preliminary injunction, asking a federal judge to rule within 20 days on EPIC’s legal claims. EPIC is seeking the reports that the Justice Department has routinely prepared for Congress but never made available to the public. The Foreign Intelligence Surveillance Court, relying on these reports, has approved the bulk, suspicionless collection of Internet and e-mail data, which is now widely debated. For more information, see EPIC: EPIC v. DOJ (Pen Register / Trap and Trace).
In a letter to Federal Communications Commission Chairman Tom Wheeler, EPIC urged the FCC to determine whether AT&T violated the Communications Act when it sold private consumer call detail information to the Drug Enforcement Administration and Central Intelligence Agency. EPIC's letter follows an earlier letter where EPIC asked the FCC to resolve whether Verizon violated the Communications Act when it released consumer call detail information to the National Security Agency. EPIC's letter also informed the Commission that the National Association of Regulatory Utility Commissioners has issued a draft resolution underscoring the crucial role of the FCC in protecting consumer information. For more information, see EPIC: In re EPIC and EPIC: Foreign Intelligence Surveillance Act.
The Democratic Chair of the Senate Judiciary Committee and the Republican author of the Patriot Act have introduced the USA FREEDOM Act, which would reform the Foreign Intelligence Surveillance Act and limit NSA surveillance activities. A bi-partisan coalition, including 17 Senators and 70 Members of Congress, have joined as original co-sponsors. Key provisions of the FREEDOM Act increase transparency of intelligence activities, prevent end-runs around the FISA Court, and improve public reporting. In 2012 EPIC testified before the House Judiciary Committee about the need to reform FISA and to improve oversight of the FISA court. The FREEDOM Act also ends the controversial bulk phone records collection program. EPIC has brought a challenge in the Supreme Court to the phone records program, explaining that it is unlawful under current law. For more information, see EPIC: In re EPIC and EPIC - Foreign Intelligence Surveillance Act.
The Solicitor General has filed a response to EPIC's challenge to the NSA's telephone record collection program. In July, EPIC petitioned the Supreme Court to vacate the order of the Foreign Intelligence Surveillance Court that requires Verizon to turn over all telephone records to the NSA. EPIC argued that the Intelligence Court exceeded its legal authority and could not compel a telephone company to disclose so much personal information unrelated to a foreign intelligence investigation. Legal scholars and former Members of Congress filed briefs in support of EPIC's petition, including privacy and national security scholars, constitutional scholars, federal courts scholars, and members of the Church Committee. Congressman James Sensenbrenner, the primary author of the Patriot Act, has said that the telephone records collection program was never authorized by Section 215. For more information, see In re EPIC.
Speaking at a conference hosted by the Georgetown University Law Center, the Chairman of the Senate Judiciary Committee called for an end "to the bulk collection of Americans' phone records." Senator Leahy said "the system set up in the 1970s to regulate the surveillance capabilities of our Intelligence Community is no longer working. We must recalibrate." Senator Leahy has introduced bipartisan legislation that would end the telephone record collection program, reduce secret law, and improve the structure of the Foreign Intelligence Surveillance Court. The Senate Judiciary Committee will hold an oversight hearing next week on the Foreign Intelligence Surveillance Act. EPIC has filed a petition with the US Supreme Court, arguing that the bulk collection of telephone toll records is unlawful. For more information, see EPIC - In re EPIC.
A bipartisan group of Senators, including the Chairman and Ranking Members of the Senate Judiciary Committee, have called for a full-scale review of the use of surveillance authorities by the intelligence community. The Senators emphasized that the findings and conclusions of this review be made public to "help promote greater oversight, transparency, and public accountability." The requested report would address activities conducted under Section 215 of the USA PATRIOT Act and Section 702 of the FISA, which includes the collection of the telephone call records of hundreds of millions of Americans. Specifically, the report would review the use and implementation of 215 and 702, the applicable minimization procedures, any improper use of the authorities, and examine the effectiveness over the 2010-2013 period. EPIC is currently challenging the order for bulk collection of domestic call records in its Petition for Writ of Mandamus in the U.S. Supreme Court. For more information, see In re EPIC and EPIC: FISA Reform.
The Foreign Intelligence Surveillance Court (FISC) has released an Opinion, justifying the NSA's telephone record collection program. In the Opinion, Judge Claire Eagan states that "there is no Fourth Amendment impediment to the collection" of all domestic call detail records. Judge Eagan also concluded that all domestic call detail records are "relevant" under Section 215 because "individuals associated with international terrorist organizations use telephonic systems to communicate" and because the government argued that bulk collection is 'necessary to create a historical repository of metadata' in order to identify 'known and unknown operatives. This FISC opinion was issued more than a month after EPIC filed its Mandamus Petition challenging the NSA domestic surveillance in the U.S. Supreme Court. The Eagan opinion has also been criticized by legal scholars. For more information, see In re EPIC.
EPIC President Marc Rotenberg and EPIC Advisory Board Member Steve Aftergood met today with the Review Group on Intelligence and Communication Technology. The President tasked the panel with the responsibility to assess whether the "United States employs its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust." EPIC submitted detailed recommendations and included copies of EPIC's Supreme Court petition, arguing that the current domestic surveillance program is unlawful, as well as EPIC's Congressional testimony on the FISA Amendments Act and EPIC's 2010 letter to the Foreign Intelligence Surveillance Court concerning reform of FISA procedures. The panel will accept comments from the public until October 4, 2013. Comments are to be sent to reviewgroup@dni.gov, which oddly is the domain of the current Director of National Intelligence.
The Director of National Intelligence has announced that the Intelligence Community will release annually "aggregate information concerning" the use of national security authorities. The reports will include the use of both FISA and National Security Letter legal authorities. EPIC has previously recommended improved reporting of FISA activities, similar to the wiretap reports issued by the Administrative Office of the U.S. Courts. News reports indicate that the Intelligence Community paid Internet companies $394 m in 2011 to provide customer data to the US government. For more information, see EPIC: FISA Reform.
President Obama met this week with the members of a newly formed group of experts to review intelligence and communications technologies. The group consists of computer security advisor Richard Clark, former CIA Director Michael Morell, and legal scholars Geoffrey Stone, Cass Sunstein, and Peter Swire. The White House said the group would advise the President on how "the United States can employ its technical collection capabilities in a way that optimally protects our national security and advances our foreign policy while respecting our commitment to privacy and civil liberties, recognizing our need to maintain the public trust, and reducing the risk of unauthorized disclosure." This week, EPIC contacted each of the review group members to provide important materials regarding the protection of privacy and civil liberties. EPIC sent to the Review Group members copies of EPIC's Supreme Court petition, arguing that the current domestic surveillance program is unlawful, as well as EPIC's Congressional testimony on the FISA Amendments Act and EPIC's 2010 letter to the Foreign Intelligence Surveillance Court concerning reform of FISA procedures. For more information, see EPIC: FISA Reform.
A newly released opinion by the Foreign Intelligence Surveillance Court found that the NSA violated the Fourth Amendment and the Foreign Intelligence Surveillance Act when it acquired tens of thousands of wholly-domestic Internet communications. According to the opinion of the former Presiding Judge of the FISA Court, the NSA acquired more than 250 Million Internet communications per year. Roughly 9% of these communications are obtained via "upstream collection" and more than 50,000 each year contain domestic communications. The FISC found that NSA's targeting and minimization procedures were not reasonable under the Fourth Amendment given the large number of wholly domestic communications obtained. The FISC also found that NSA's minimization procedures violated the FISA, and required that the agency adopt additional protections to ensure privacy. For more information, see EPIC: Foreign Intelligence Surveillance Court.
According to the Director of National Intelligence, on July 19, 2013 the Government "filed an application with the Foreign Intelligence Surveillance Court seeking renewal of the authority to collect telephony metadata in bulk, and that the Court renewed that authority." In a separate filing, in a July 18 response to a challenge brought by the ACLU, the Department of Justice said that a federal district court in New York could not overturn the order of the FISA court. And in a July 16 letter to Congressman Sensenbrenner the Department asserts that "because the telephony metadata must be available in bulk to allow the NSA to identify records of terrorist communications, there are 'reasonable grounds to believe' that the data is relevant to an authorized investigation. EPIC has recently filed a petition with the US Supreme Court, challenging the lawfulness of the NSA domestic surveillance program. For more information, see EPIC - In re Electronic Privacy Information Center.
EPIC, in a prepared statement, addressed the Privacy and Civil Liberties Oversight Board regarding NSA surveillance under the Patriot Act and the Foreign Intelligence Surveillance Act at day long workshop. Retired Judge James Robertson, who served on the FISA Court, told the panel that he was "stunned" by the news that the government was collecting all of the telephone records of Americans. EPIC, which has recently filed a challenge to the domestic surveillance program with the Supreme Court, recommended increased public reporting for FISA and new limitations on the authority of the FISA court. EPIC previously provided recommendations to the Board for future work. Several of the recommendations were incorporated in the Board's semi-annual report. For more information, see EPIC: Foreign Intelligence Surveillance Act and EPIC: NSA Petition.
The Administrative Office of the United States Courts has issued the the 2012 Wiretap Report. The annual report, provides comprehensive data on all federal and state wiretap applications, including the types of crimes investigated, as well as the costs involved and whether arrests or convictions resulted. In contrast, the annual report from the Foreign Intelligence Surveillance Court provides almost no information about a surveillance authority that is routinely directed toward the American public. According to the 2012 Wiretap Report, 3,395 intercept orders were issued in 2012. Of these orders, 3,292 (97%) targeted "portable devices" and 7 were "roving" taps to target individuals using multiple devices. The vast majority (87%) of wiretaps were issued in narcotics investigations, though some involved multiple offenses. In 2012, installed wiretaps were in operation for an average of 39 days, 3 days below the average in 2011. Encryption was reported for 15 wiretaps in 2012 and for 7 wiretaps conducted during previous years. In four of these wiretaps, officials were unable to decipher the plain text of the messages. This is the first time that jurisdictions have reported that encryption prevented officials from obtaining the plain text of the communications since the Administrative Office began collecting encryption data in 2001.There were 3,743 arrests related to these intercepts, which resulted in 455 (12%) convictions. EPIC maintains a comprehensive index of the annual wiretap reports and FISA reports. For more information, see EPIC: Title III Wiretap Orders - Stats, EPIC: Wiretapping, and EPIC: Foreign Intelligence Surveillance Act.
Senator Patrick Leahy (D-VT), joined by several other Senators, has introduced a bill that will amend certain provisions of the USA PATRIOT ACT and the FISA Amendments Act to address recent revelations about domestic surveillance by the National Security Agency. The provisions of the bill will increase the threshold for the NSA to obtain domestic metadata and require court-approved minimization procedures. In addition, the bill will move up expiration dates on surveillance authorities to June 2015. In a statement, Senator Leahy said, "these are all commonsense, practical improvement that will ensure that the broad and powerful surveillance tools being used by the Government are subject to appropriate limitations, transparency, and oversight." EPIC recommended similar proposals in testimony last year before the House Judiciary Committee. For more information, see EPIC: Foreign Intelligence Surveillance Act and EPIC: NSA Petition.
The Guardian has posted the procedures used by the National Security Agency to target non-US citizens under the Foreign Intelligence Surveillance Act, as well as the minimization procedure for information collected about US citizens. The documents indicate that "[a] person whose location is not known will be presumed to be a non-United States person," and that the NSA maintains databases of the telephone numbers, email accounts, and other identifiers of US citizens. EPIC recently petitioned the NSA to suspend its domestic surveillance pending public comment. Last year, in testimony for the House Judiciary Committee, EPIC urged Congress not to reauthorize the FISA Amendments Act until adequate oversight procedures were in place. For more information, see EPIC: Foreign Intelligence Surveillance Act and EPIC: NSA Petition.
In a letter to Federal Communications Commission Chairwoman Mignon Clyburn, EPIC urged the FCC to determine whether Verizon violated the Communications Act when it released consumer call detail information to the National Security Agency. In response to an unprecedented Foreign Intelligence Surveillance Court order which focused on solely domestic communications, Verizon released telephone customer information to the NSA, including telephone numbers and time and call duration. Congress explicitly charged the Commission with investigating unauthorized disclosures of consumer call detail information. EPIC's letter stated that Verizon violated legal protections for consumer phone records when it disclosed consumer information in response to a facially invalid order. For more information, see EPIC: Foreign Intelligence Surveillance Act, EPIC: Clapper v. Amnesty Int'l, and EPIC: USA Patriot Act.
A bipartisan group of senators, led by Senator Jeff Merkley (D-OR) and Senator Mike Lee (R-UT), has proposed a bill that would declassify the opinions of the Foreign Intelligence Surveillance Court. In 2012 testimony before the House Judiciary Committee, EPIC recommended the publication of Foreign Intelligence Surveillance Court Opinions prior to the renewal of the FISA Amendments Act. Last week, EPIC charged the Foreign Intelligence Surveillance Court with acting outside of its authority. In a letter to Congress, EPIC stated, "The Foreign Intelligence Surveillance Court ordered an American telephone company to disclose to the NSA records of wholly domestic communications. The FISC lacks the legal authority to grant this order." EPIC asked Congress to conduct hearings and determine whether the specialized court, charged with overseeing the collection of foreign intelligence, may also authorize surveillance of solely domestic communications. EPIC has also filed Freedom of Information Act request a with the Department of Justice, seeking the agency's justification for the NSA domestic surveillance program. For more information, see EPIC: Foreign Intelligence Surveillance Act, EPIC: Clapper v. Amnesty, and EPIC: USA Patriot Act.
EPIC has filed a Freedom of Information Act request with the Department of Justice, seeking the agency's justification for the NSA domestic surveillance program. The Department of Justice authorized a request for "all call detail records or 'telephony metadata' created by Verizon for communications . . . (ii) wholly within the United States, including local telephone calls." By statute, the scope of the Foreign Intelligence Surveillance Court is limited to investigations concerning the collection of foreign intelligence. The Department of Justice and the President have been acknowledged that the Department conveyed information about the program to Congress. EPIC has asked Congress to determine whether the special court exceeded its authority when it compelled Verizon to turn over the records of millions of telephone customers. For more information, see EPIC: Foreign Intelligence Surveillance Act, EPIC: Clapper v. Amnesty Int'l, and EPIC: USA Patriot Act.
EPIC has sent a letter to Congress charging that the National Security Agency's demand for domestic telephone records is unlawful. EPIC stated, "The Foreign Intelligence Surveillance Court ordered an American telephone company to disclose to the NSA records of wholly domestic communications. The FISC lacks the legal authority to grant this order." EPIC's letter calls on Congress to conduct hearings and determine whether the specialized court, charged with overseeing the collection of foreign intelligence, may also authorize surveillance of solely domestic communications. For more information, see EPIC: Foreign Intelligence Surveillance Act, EPIC: Clapper v. Amnesty Int'l, and EPIC: USA Patriot Act.
According to the 2012 Foreign Intelligence Surveillance Act (FISA) Report, the Department of Justice submitted 1,856 applications to the Foreign Intelligence Surveillance Court (FISC), a 6.4% increase over 2011. Of the 1,856 search applications, 1,789 sought authority to conduct electronic surveillance. The FISC did not deny any of the applications, although one was withdrawn by the Government. However, the FISC did make modifications to 40 of the applications, including one from the 2011 reporting period. In addition to the FISA orders, the FBI sent 15,229 National Security Letter requests for information concerning 6,223 different U.S. persons. This is a modest decrease from the 16,511 requests sent in 2011. Almost no information is available about FISA surveillance beyond the figures contained in the annual FISA letter, sent to the Senate each year by the Department of Justice, Office of Legislative Affairs. EPIC has recommended greater reporting of FISC applications and opinions, similar to what is disclosed in the Federal Wiretap Reports. For more information, see EPIC: Foreign Intelligence Surveillance Act Court Orders 1979-2012 and EPIC: Foreign Intelligence Surveillance Act.
The Supreme Court ruled today in Clapper v. Amnesty Int'l USA that a constitutional challenge to the Foreign Intelligence Surveillance Act (FISA) cannot go forward. A group of attorneys and journalists alleged that the U.S. government could be intercepting their communications with their foreign contacts, in violation of the Fourth Amendment. In a divided 5-4 decision, Justice Alito wrote that the group's alleged injuries were too speculative to be considered. Justice Breyer, joined by Justices Ginsburg, Kagan, and Sotomayor, dissented and said that the Court's "certainly impending" standard was inconsistent with prior decisions. Justice Breyer also cited EPIC's "friend of the court" brief which described the extraordinary capacity of the NSA to capture private communications. For more information, see EPIC: Clapper v. Amnesty Int'l USA and EPIC: FISA.
The Senate is scheduled to debate several proposals that would establish new safeguards for the FISA Amendments Act, a controversial law that allows surveillance of the phone and email communications of US citizens without a warrant. Earlier this year, EPIC testified before the House Judiciary Committee, and recommended increased transparency and new public reporting of the Government's surveillance activities. Currently, the FISA letter to Congress provides little information about Government conduct. "Congress should not reauthorize the FISA Amendments Act until adequate oversight procedures are in place," EPIC Executive Director Marc Rotenberg said at the May hearing. For more information, see EPIC: Foreign Intelligence Surveillance Act and EPIC: Clapper v. Amnesty International.
The Supreme Court heard oral arguments in Clapper v. Amnesty International, a case concerning the right to challenge illegal surveillance. A federal appeals court ruled in favor of a group of plaintiffs, including human rights advocates, journalists and attorneys, and held that their costs incurred to avoid surveillance were sufficient to establish a live controversy under the Constitution. Solicitor General Donald Verilli, arguing on behalf of the United States and the Director of National Intelligence, claimed that plaintiffs could not establish a sufficiently concrete injury because they do not know if they had been subject to surveillance. The Justices, including Justice Kennedy, seemed concerned about the possibility of government surveillance of privileged attorney-client communications. EPIC filed an amicus brief, joined by thirty-two legal scholars and technical experts, and six privacy and open government organizations, arguing that the plaintiffs concerns were well founded considering the surveillance capabilities of the NSA and the failure to establish sufficient public reporting requirements for lawful surveillance. For more information, see: EPIC: Clapper v. Amnesty Int'l USA and EPIC: Foreign Intelligence Surveillance Act.
Today EPIC filed an amicus brief with the US Supreme Court in Clapper v. Amnesty International USA, a case challenging the interception of communications of US persons under foreign intelligence surveillance laws. This case presents the issue of constitutional "standing," whether the journalists and human rights organizations who brought he lawsuit can establish an imminent threat or reasonable fear that their communications will be collected. The federal appeals court found in their favor. In urging affirmance, EPIC argued that the capacity of National Security Agency to intercept private communications combined with the failure to establish meaningful oversight underscores the concern that the interception of private communications would occur. The EPIC brief is supported by 32 legal scholars and technical experts, and six organizations devoted to privacy and open government. For more information, see EPIC: Clapper v. Amnesty, EPIC: Foreign Intelligence Surveillance Act (FISA).
The House has voted to reauthorize the FISA Amendments Act (301-118). The Act authorizes programs of surveillance intended to target foreign agents, but allows collection of private communications of United States citizens without individualized suspicion. In May 2012, EPIC Executive Director Marc Rotenberg testified before the House Judiciary Committee on the legislation and recommended new oversight procedures. The Senate has yet to consider the measure. Senator Ron Wyden (D-OR) and others have expressed concern about renewal of the Act. For more information, see EPIC: Foreign Intelligence Surveillance Act and EPIC: Clapper v. Amnesty International USA.
The Senate Judiciary Committee has approved a bill that would established new safeguards for the Foreign Intelligence Surveillance Amendments Act. The Act provides for court approval of 'programs of surveillance' that allow for the collection of communications of US citizens. The bill, sponsored by Senator Patrick Leahy (D-VT), would renew the Act but also establish new reporting requirements to improve government accountability. In May 2012, EPIC Executive Director Marc Rotenberg testified before the House Judiciary Committee, and recommended increased oversight and reporting. For more information, see EPIC: Foreign Intelligence Surveillance Act and EPIC: Clapper v. Amnesty International USA.
The House Judiciary Committee voted to reauthorize the FISA Amendments Act, HR 5949, through Dec. 31, 2017 without any changes. The Act authorizes "programs of surveillance" intended to target foreign agents, but also allows collection of private communications of United States citizens without individualized suspicion. EPIC Executive Director Marc Rotenberg recently testified before the Committe and recommended that Congress strengthen oversight procedures to protect privacy and limit possible misuses of the legal authority. But amendments to improve accountability introduced by Rep. John Conyers (D-MI), Rep. Jerold Nadler (D-NY), Rep. Bobby Scott (D-VA), and Rep. Sheila Jackson-Lee (D-Texas), were all defeated. In the Senate, Senator Ron Wyden (D-OR) and others have expressed concern about renewal of the Act. For more information, see EPIC: Foreign Intelligence Surveillance Act and EPIC: Clapper v. Amnesty International USA.
The House Committee on the Judiciary will markup the FISA Amendments Act Reauthorization Act of 2012 on Tuesday, June 19, 2012. The Act authorizes government surveillance of international communications, including the private communications of United States citizens. Currently, the law provides little information to Congress or the public about these surveillance activities. EPIC Executive Director Marc Rotenberg recently testified at an oversight hearing, and called on Congress to strengthen oversight procedures and increase transparency before the Act is renewed. In a recent report by the Senate Intelligence Committee, Senators Mark Udall and Ron Wyden also said that the FISA contains a loophole that allows the government "to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens." For more information, see EPIC: Foreign Intelligence Surveillance Act and EPIC: Clapper v. Amnesty International.
EPIC Executive Director Marc Rotenberg will testify before the House Judiciary Subcommittee on the FISA Amendments Act of 2008. The Act authorizes Government surveillance of international communications, including the private communications of U.S. citizens. EPIC will recommend increased transparency and new public reporting of the Government's surveillance activities. Currently, the FISA letter to Congress provides little to no information about Government conduct. "Congress should not reauthorize the FISA Act until adequate oversight procedures are in place," Rotenberg said. The hearing will be webcast. For more information, see EPIC: Foreign Intelligence Surveillance Act and EPIC: Clapper v. Amnesty International.
The Supreme Court has agreed to hear Clapper v. Amnesty International USA, a challenge to the FISA Amendments Act of 2008. The Act expanded the Government's authority to engage in warrantless surveillance, and followed news of the Bush administration's program to wiretap international communications. A group of lawyers, journalists, and public interest organizations, who regularly engage in international communications, challenged the new law saying they feared that their private communications would be intercepted. The US Court of Appeals for the Second Circuit ruled that the case could proceed even though the plaintiffs had not established that they were subject to surveillance. The Government filed a petition for the Supreme Court to hear the case, which was granted today. EPIC recently filed an amicus brief in a Supreme Court case, First American v. Edwards, raising similar Article III standing issues in the context of a consumer protection statute. EPIC also filed an amicus brief along with the Stanford Constitutional Law Center and other interested groups, in Hepting v. AT&T, a case challenging AT&T's involvement in the FISA warrantless wiretapping program. For more information, see EPIC: Foreign Intelligence Surveillance Act (FISA).
According to the 2011 Foreign Intelligence Surveillance Act (FISA) Report the Justice Department submitted 1,745 applications to the Foreign Intelligence Surveillance Court, a 10.5% increase over 2010. Of the 1,745 FISA search applications, 1,676 concerned electronic surveillance. The FISA court did not deny any applications, though it did modify 30 applications. Also in 2011, the FBI made 16,511 National Security Letter requests for information pertaining to 7,201 different U.S. persons. This is a substantial decrease from the 24,287 national security letter requests concerning 14,212 U.S. persons in 2010. The annual report on FISA, released by the Department of Justice, is far less extensive than the annual wiretap report, produced by the Administrative Office of the US Courts. EPIC has recommended greater accountability for the FISA Court. For more information, see: EPIC: Foreign Intelligence Surveillance Act Court Orders 1979-2011 and EPIC: Foreign Intelligence Surveillance Act.
Lawmakers in the House and the Senate have reached an agreement that would renew key provisions of the Patriot Act, though amendments are still possible. One of the sections, known as the "lone wolf" provision, allows terrorist investigations of non-citizens without having to show connections to a terrorist organization. The Patriot Act expanded the authority of law enforcement and intelligence agencies to monitor private communications and access personal information. Among other things, the Patriot Act amended the Foreign Intelligence Surveillance Act (FISA) to allow the FBI to use National Security Letters for In place of court-approved warrants. In 2010, 24,287 NSLs were issued, up 64% from the previous year. For more Information, see EPIC: USA Patriot Act and EPIC: Foreign Intelligence Surveillance Act.
EPIC has submitted comments on the proposed rules for the Foreign Intelligence Surveillance Court. In comparison to the previous rules, promulgated in 2006, EPIC said that the new rules would strengthen judicial independence, improve congressional oversight, and promote, to some extent, greater transparency of the court that oversees the Foreign Intelligence Surveillance Act. EPIC also urged the Court to establish a web presence with information about the Court's activities and to publish detailed annual reports. EPIC said these measures would promote accountability and enhance public understanding of the Court and its functions. For more information, see EPIC: Foreign Intelligence Surveillance Court and EPIC: Foreign Intelligence Surveillance Act.
The Department of Justice Office of the Inspector General has issued a report on the FBI's use of "exigent letters" and other means to obtain telephone records from three unnamed phone companies. The 300-page report concludes that many of the FBI's practices "violated FBI guidelines, Department policy," and the Electronic Communications Privacy Act. The report also found that "the FBI sought and acquired reporters' telephone toll billing records and calling activity information" through improper means. The report concludes that "the FBI's initial attempts at corrective action were seriously deficient, ill-conceived, and poorly executed" and makes several recommendations for improvement. In a 2007 letter to the Senate Judiciary Committee, EPIC recommended that the FBI's National Security Letter authority be repealed. For more information, see EPIC National Security Letters.
Representatives Conyers, Nadler, and Scott introduced two bills today that would amend the PATRIOT Act and the Foreign Intelligence Surveillance Act. The Patriot Amendments Act of 2009 will enhance reporting and judicial oversight of law enforcement powers, including the National Security Letter process. The FISA Amendments Act of 2009 will place new limits on the government's ability to collect and store Americans' communications without a warrant and repeals retroactive immunity. For more information, see EPIC FISA, EPIC PATRIOT Act.
Today, Sen. Russ Feingold (D-WI) and seven cosponsors introduced the Judicious
Use of Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act. The bill would amend the PATRIOT Act, the FISA Amendments Act, and other surveillance and intelligence laws. Among other changes, the JUSTICE Act would reform the National Security Letter process, revise the guidelines for business records orders, eliminate the catch-all provision for "sneak-and-peek" searches, and add new safeguards for FISA roving wiretaps. The JUSTICE Act would also repeal retroactive immunity for telecommunications companies, and is supported by many civil liberties organizations. For more information, see EPIC USA PATRIOT Act, EPIC FISA, EPIC Wiretapping, and EPIC National Security Letters.
In a report to Congress, the Justice Department revealed a substantial increase in the use of National Security Letters to acquire information on American citizens without court order. In 2008, the FBI made 24,744 NSL requests pertaining to 7,225 persons compared to 16,804 requests pertaining to 4,327 persons in 2007. The report also detailed 2,082 applications by the FBI to the Foreign Intelligence Surveillance Court for authority to conduct surveillance and physical searches. An earlier audit had revealed that some "blanket-NSLs" did not document the relevance of the information sought to a national security investigation and the statistics were not reported to the Congress. For more information, see EPIC's Page on Foreign Intelligence Surveillance Act, National Security Letters, and Wiretapping.
According to the 2008 Wiretap report, federal and state courts issued 1,891 orders for the interception of wire, oral or electronic communications in 2008, down from 2,208 in 2007. (Dept. of Justice Press release.) As in the last three years, no applications for wiretap authorizations were denied by either state or federal courts. The total number of authorized wiretaps had grown in each of the six past calendar years, beginning in 2003. The 2008 Wiretap Report does not include interceptions regulated by the Foreign Intelligence Surveillance Act or interceptions approvedby the President outside the exclusive authority of the federal wiretap law and the FISA. See EPIC Wiretapping page and EPIC Title III Orders.
The Foreign Intelligence Surveillance Court of Review has ordered the release of a redacted opinion. The federal intelligence court ruled in August, 2008 that warrantless wiretapping of international phone calls and the interception of e-mail messages were permissible. Giving support to the Protect America Act, the Court found that "foreign intelligence surveillance possesses characteristics that qualify" for an exception in the interest of "national security". For more information, see EPIC's page on Foreign Intelligence Surveillance Act.
Background
Pen registers and trap and trace ("PR/TT") devices collect metadata from calls coming in to and going out of specific phone lines, respectively. There are two federal statutes governing the application for and the execution of such recording devices, the Electronic Communications Privacy Act ("ECPA") and the Foreign Intelligence Surveillance Act ("FISA"). Under the FISA, pen registers and trap and trace devices can be used "for any investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities."
On June 27, 2013, the Guardian reported that the NSA had received authorization to collect bulk email and Internet metadata using the Pen Register and Trap and Trace provisions of the FISA on July 14, 2004. According to the Guardian, the surveillance program was authorized by Judge Kollar-Kotelly of the Foreign Intelligence Surveillance Court ("FISC"). On November 18, 2013, less than five months after the Guardian's report, the Office of the Director of National Intelligence ("ODNI") released an undated and previously unpublished FISC opinion signed by Judge Kollar-Kotelly. Judge Kollar-Kotelly found that the Pen Register/Trap and Trace povisions allowed the National Security Agency ("NSA") to collect certain redacted categories of bulk Internet and e-mail metadata. Judge Kollar Kotelly found that the government's proposal "satisfie[d] each of the elements of the applicable statutory definition of a 'pen register' or a 'trap and trace.'"
The program allegedly continued until 2011, when it was discontinued for "operational and resource reasons." Senators Ron Wyden and Mark Udall explained:
We are quite familiar with the bulk email records collection program that operated under the USA Patriot Act and has now been confirmed by senior intelligence officials. We were very concerned about this program's impact on Americans' civil liberties and privacy rights, and we spent a significant portion of 2011 pressing intelligence officials to provide evidence of its effectiveness. They were unable to do so, and the program was shut down that year.
There is no evidence that the program has been re-instituted since its cessation in 2011.
The Attorney General is required to make a semiannual report to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate, and the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate that would include a summary of all uses of pen registers and trap and trace devices obtained under the FISA. The report should include the number of applications granted and the number of applications modified under the FISA, as well as the total number of installations approved and denied under emergency circumstances. These reports have never been made available to the public
EPIC's Freedom of Information Act Request and Subsequent Lawsuit
On October 3, 2013, EPIC submitted a FOIA request to the National Security Division of the Department of Justice asking for:
All reports made to the Permanent Select Committee on Intelligence in the House of Representatives and the Select Committee on Intelligence in the Senate, detailing the total number of orders for pen registers or trap and trace devices granted or denied, and detailing the total number of pen registers or trap and trace devices installed pursuant to 50 U.S.C. § 1843;
All information provided to the aforementioned committees concerning all uses of pen registers and trap and trace devices;
All records used in preparation of the above materials, including statistical data.
The DOJ granted EPIC's request for expedited processing but had not processed EPIC's FOIA Request within more than 40 days after it had been received by the Agency. After the DOJ failed to produce any responsive documents, EPIC filed a suit and a motion for a preliminary injunction on December 6, 2013 in the U.S. District Court for the District of Columbia.
The court denied EPIC's motion for an injunction on February 11, 2014, but ordered the government to proceed with production of records responsive to EPIC's request. The DOJ began producing responsive records in March 2014, and continued to release documents on a rolling basis through August 2014. Following the DOJ's production, the parties both filed motions for summary judgment in Fall 2014. During the course of the briefing, the DOJ conceded that the agency had improperly withheld certain portions of the records during the initial release, including aggregate statistical information about FISA applications filed by the agency in the FISC. EPIC also challenged the agency's assertion of FOIA Exemptions 1 and 7.
The court responded to the summary judgment motions in December 2015 by scheduling a hearing. Following the hearing, the court issued a Memorandum Opinion and Order on February 4, 2016, denying the DOJ's motion and EPIC's motion without prejudice, and ordering the government to submit a revised Vaughn Index and supporting declarations by March 11, 2016. Specifically, the court found that the DOJ had not produced sufficient evidence to support the withholding of certain challenged material in the Attorney General Semiannual FISA Pen Register Reports ("SARs")—-portions of the SARs that "consist of summaries of FISC legal opinions, descriptions of the scope of the FISC's jurisdiction, and discussions of FISA process improvements—-as well as four Westlaw case printouts attached to Document 68.
EPIC and the DOJ have now filed renewed motions concerning the remaining challenged withholdings, and the agency has informed the court that the Director of National Intelligence is in the process of declassifying additional material that could be relevant to the records in this case.
Freedom of Information Act Documents
As a result of EPIC's request and lawsuit, the Department of Justice has released hundreds of pages of materials related to the governments FISA applications and FISC proceedings. These materials include Semiannual Reports from the Attorney General concerning FISA authorities and related documents filed by the DOJ in the FISC. More recently, the DOJ has released reprocessed versions of five of the disputed SARs--reports issued between December 2005 and June 2008—-that include a significant amount of new material. These new pages are displayed below with changes highlighted.
One of the key issues raised in EPIC's lawsuit is the inconsistent and self-contradictory nature of the DOJ's withholdings under Exemption 1 (which covers "classified" information). Many parts of the pages produced by the agency in November 2014 were redacted by the DOJ and marked as classified, but those same sections were later released in March 2016 without explanation. The DOJ has even gone so far as to redact paragraphs in the March 2016 release and mark them as classified, even though the agency already released those same paragraphs in November 2014. See the example below for a direct comparison.
Slide to compare:
Attorney General Semiannual FISA Pen Register Reports
