A bipartisan group of House lawmakers on Thursday demanded that the Trump administration answer critical questions about possible unauthorized domestic mass surveillance conducted by the federal government after the expiration of controversial portions of the Foreign Intelligence Surveillance Act, or FISA.
In a letter (pdf) to Attorney General William Barr and Director of National Intelligence Daniel Ratcliffe, the lawmakers—led by Reps. Pramilla Jayapal (D-Wash.) and Warren Davidson (R-Ohio)—note than three FISA provisions expired in March: business records collection (Section 215), roving wiretap, and the so-called "lone wolf" provision added in 2004 to target potential terrorists not affiliated with known terror groups or foreign powers.
We must ensure this administration is not illegally surveilling the American people. @WarrenDavidson and I sent a bipartisan letter demanding a full explanation of current surveillance practices. There must be oversight. Our right to privacy is at stake. https://t.co/tfH48a2Vra
— Rep. Pramila Jayapal (@RepJayapal) September 25, 2020
Section 215 was orginally used by the FBI to acquire records pertaining to a specific individual investigation. However, in 2013 whistleblower Edward Snowden revealed that the National Security Agency was using the law to justify bulk collection of domestic metadata. The controversial provision expired earlier this year.
In May, the Senate voted to reauthorize the USA FREEDOM Act—a move which effectively restored Section 215 and the other contentious FISA provisions—but failed to pass an amendment banning warrantless surveillance of Americans' internet searches, which Sen. Ron Wyden (D-Ore.) at the time likened to "almost spying on [people's] thoughts." The measure is currently stalled pending reconciliation of the House bill, which passed in March, and the more recent Senate version.
In the letter, the lawmakers state that "with the expiration of Section 215, we are concerned that the executive branch may, once again, be using questionable legal theories of executive authority to justify the illegal surveillance of the American people."
The legislators also express their concern that the Trump administration "believes it has the inherent authority to surveil the American people without any congressional authorization."
The letter notes that Sen. Richard Burr (R-N.C.), the former chairman of the Senate Select Committee on Intelligence, "stated that under Executive Order 12333, the executive branch could continue to engage in mass records surveillance of people in the United States without congressional approval."
E.O. 12333 is a Reagan administration directive cited by U.S. intelligence agencies as the justification for expanding surveillance, especially data collection, without satutory authorization or congressional oversight. The NSA has claimed the order provides all the legal justification it needs to collect unencrypted information that flows through companies like Google and Yahoo.
The lawmakers also cite Stellar Wind, an illegal mass surveillance program begun during the George W. Bush administration, exposed by Wired in 2012, and explained in great detail the following year by Snowden.
"Under Stellar Wind, the executive branch secretly conducted warrantless surveillance of communications content, as well as mass collection of communications metadata" in "direct contradiction to FISA and the Constitution for years," the lawmakers wrote.
The legislators then ask 15 pointed questions meant to "confirm that the administration is not illegally surveilling the American people" and to "ensure that surveillance activities under the expired USA FREEDOM authorities," which was meant to temper the infamous execesses of the USA PATRIOT Act, have ended. These include:
- Whether any federal agency is using E.O. 12333 "or any other claimed inherent surveillance powers" to conduct warrantless surveillance.
- Whether the administration believes there are "inherent or explicit legal authorities that authorize domestic collection of internet search history and website browsing information."
- Whether the government treats domestic information "as presumptively foreign."
- Whether the administration claims "inherent executive power to purchase records that would require a court order to compel production of records under Section 215."
- Whether the Justice Department seeks to obtain Americans' internet browsing history through a variety of means, including via subpoena.
The House lawmakers' letter comes two months after a similar bipartisan query, led by Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah), was sent to the administration, which has yet to reply.
Sean Vitka, senior policy counsel at the advocacy group Demand Progress, said in a statement that "the trail now appears to lead back to rogue legal theories founded upon horrifyingly broad claims of inherent executive authority to conduct mass surveillance domestically."
In March, former SSCI Chairman @SenatorBurr said the government had the inherent executive authority to conduct warrantless surveillance at staggering scale, the kind of stuff @Snowden revealed and that Congress never really dealt with. Video: https://t.co/HCXg3u8Mal https://t.co/vP0e8awPA9
— Sean Vitka (@SeanVitka) September 25, 2020
"This intelligence surveillance would happen in the absence of the law, the courts, and even the suspicion of wrongdoing," said Vitka. "This is how the government secretly started Stellarwind, the most stunningly illegal surveillance program in recent history... If the government is blanketing the United States in warrantless surveillance, this is how they would—and have—done it."
"We look forward to candid answers about how the government has interpreted the law and how far secret claims of inherent executive authority have embedded foreign intelligence surveillance into our daily lives," Vitka continued. "In the absence of those answers, Burr and [House Intelligence Committee Chairman Rep. Adam] Schiff's unwavering obstruction of real surveillance reform will further isolate them."