Hearings on U.S. Spying Authority Drives Records Demand

MANHATTAN (CN) – The American Civil Liberties Union has asked a federal judge to force production of the records it wants on warrantless mass-surveillance programs.

Filed on Nov. 17 in U.S. District Court for the Southern District of New York, the complaint comes two months after the ACLU made a request under the Freedom of Information Act for documents related to Section 702 of the Foreign Intelligence Surveillance Act.

That request was filed with the National Security Agency, the CIA, the Office of the Director of National Intelligence and the U.S. Department of Justice.

These agencies are statutorily required to respond to FOIA requests within 20 days, or 30 days if there are “unusual circumstances.”

“To date, none of the Defendants has released any responsive record,” the 15-page complaint states.

Section 702, as noted in the complaint, is the law on which the government relies “to engage in the warrantless surveillance of Americans’ international communications.”

Since it will expire in 2017, the ACLU says Congress must soon decide whether to reauthorize such spying authority, which implicates the “core privacy and free speech rights of Americans.”

“However, the public still lacks essential information about the breadth of surveillance under Section 702, the ways in which this surveillance is used, and its impact on American citizens and residents,” the complaint states. “Timely disclosure of these records is critical to the ongoing public debate about the lawfulness Section 702. Without additional information, the public will be unable to engage in an informed debate concerning Section 702’s potential reauthorization.”

The complaint describes two surveillance programs permitted by Section 702, of which the public is aware.

“Using PRISM surveillance, the government compels electronic communications providers — like Apple, Facebook, and Microsoft — to furnish communications sent to or from a target’s account, such as an email account used by a non-U.S. person located overseas,” the complaint states.

“Through Upstream surveillance, the government intercepts international telephone calls and internet communications as they are routed across major communications networks inside the United States,” it continues. “With respect to internet communications, the government compels providers — like AT&T and Verizon — to search the contents of international traffic in bulk for communications that are to, from, or about the NSA’s targets.

Though ostensibly meant to target overseas communications by foreigners, the ACLU notes that any American who is in communication with a foreign target risks is necessarily having these phone calls or emails surveilled.

Sen. Patrick Leahy, a Vermont Democrat, said as much this past May at a hearing on Section 702.

“While Section 702 is aimed at surveillance of foreigners outside the United States, it sweeps up a sizable amount of information about innocent Americans who are communicating with foreigners,” Leahy said.

The ACLU wants a federal judge to order a thorough search for all documents responsive to its request. It also wants a waiver of search, review and duplication fees.

ACLU staff attorney Patrick Toomey signed the complaint.

A member of the ACLU’s National Security Project, Toomey has written that, because Section 702 is not predicated on probable cause or suspicion of wrongdoing, it represents a new surveillance paradigm “in which computers constantly scan our communications for information of interest to the government.”

“As the legislative debate gets underway, it’s critical to frame the technological and legal issues that Congress and the public must consider — and to examine far more closely the less-intrusive alternatives available to the government,” Toomey wrote in an ACLU blog post titled “Unprecedented and Unlawful: The NSA’s ‘Upstream’ Surveillance.”

The complaint notes Section 702 has permitted surveillance at an enormous scale. In 2015 alone, the government invoked Section 702 to obtain the communications of 94,368 targets under a single court order.

The government agencies did not return requests for comment.

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