Senate Divided on Changing Foreign-Surveillance Law

WASHINGTON (CN) — The law that lets the U.S. spy on foreign communications is up for reauthorization, but party lines prevailed Tuesday as the Senate debated changes more cautious of civil liberties.

Section 702 of the Foreign Intelligence Surveillance Act allows the National Security Agency to collect the communications of non-U.S. citizens outside the United States who talk about matters of foreign intelligence.

Congress last reauthorized the law in 2012, just a year before leaks by former NSA contractor Edward Snowden exposed a secret court order that let the government collect the phone records of millions of Americans.

Though passage of the USA Freedom Act revoked those powers last year, the NSA must get approval from a FISA court to collect foreign communications, and law-enforcement agencies can later search the database to help with their investigations.

The program is admittedly in tension with civil liberties, but its supporters see it as key to the country's national-security efforts, especially in the wake of terror attacks in Paris, San Bernardino and Brussels.

"Given that threat as evidenced by those recent attacks, now is not the time to weaken our defenses or scale back our critical intelligence authority like the FISA Amendment Act," testified Kenneth Wainstein, a partner at Washington law firm Cadwalader, Wickersham & Taft, at the hearing Tuesday. "To the contrary, now is the time to ensure that our intelligence community operators have the authorities they need to protect our country."

Critics of the program say the law implicitly undermines the prohibition against collecting data on people in the United States and U.S. citizens when it comes to people who communicate often with people outside the country.

They say collecting and searching such data violates the Fourth Amendment.

"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," Sen. Patrick Leahy, a Vermont Democrat, said at the hearing.

Sen. Dianne Feinstein, of California, was the lone official who seemed to cross party lines, joining Republicans in defending the program as "practical" and "important."

Feinstein did agree with suggestions from the panel of experts and advocates that the program could benefit from increased transparency.

"The problem is that the government has been reluctant to declassify sufficient numbers of cases so the public gets an understanding of the value of the program," Feinstein said.

While Democrats emphasized civil-liberty concerns in their statements and questions, Republicans like Sen. John Cornyn said efforts to protect personal communications could be misguided or dangerous.

"In other words, in our zeal to want to protect love letters, we don't want to protect terrorists who use coded words that might otherwise escape scrutiny by the intelligence community," said Cornyn, of Texas.

Privacy advocates warned the committee Tuesday morning that the law must change to comply with the Fourth Amendment.

Elizabeth Goitein, co-director of the Liberty and National Security Program at the New York University School of Law, urged the committee to require a court to approve the FBI's queries of the communications database.

She criticized so-called "backdoor" searches, where the FBI conducts searches of NSA data for information on U.S. citizens. Feinstein pushed back against Goitein's characterization of these types of queries, calling them lawful uses of information acquired through the proper channels.

When Sen. Thom Tillis, R-N.C., pressed her to say whether there was any evidence the FBI had violated the Fourth Amendment with any improper searches, Goitein suggested any search violates the law.

"I think the search itself is the violation of the Fourth Amendment right," Goitein said.

David Medine, chair of the Privacy and Civil Liberties Oversight Board, also suggested the government release data on how many U.S. citizens are wrapped up in unintentional surveillance.

Supporters of the program told the committee that restricting the FBI's access to valuable law-enforcement data would hinder its ability to fight against terror threats and rebuild a wall that prevented federal agencies from sharing information before Sept. 11.

"We've seen the benefit of having seamless coordination and information sharing among law enforcement and intelligence personnel, we don't want to do anything to raise back the old days, which led to 9/11," Wainstein of Cadwalader Wickersham said.

The struggle to find balance between security and civil liberties is a common theme in hearings like Tuesday's. Sen. Al Franken, D-Minn., called the issue as old as the nation itself.

"The question here really is going back to the framers and going back to their fear about what happens when a government isn't acting as in good faith as I think our intelligence community by and large has," Franken said just before the hearing ended.

This morning's hearing comes at early stages for lawmakers, as Congress has until the end of next year to reauthorize section 702.

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