Feinstein promotes bill to strengthen NSA's hand on warrantless searches

A Senate bill promoted as a surveillance reform would codify the ability of the National Security Agency to search its troves of foreign phone and email communications for Americans’ information, and permit law enforcement agencies to search the vast databases as well.

The Fisa Improvements Act, promoted by Dianne Feinstein, the California Democrat who chairs the Senate intelligence committee, would both make permanent a loophole permitting the NSA to search for Americans’ identifying information without a warrant – and, civil libertarians fear, contains an ambiguity that might allow the FBI, the DEA and other law enforcement agencies to do the same thing.

“For the first time, the statute would explicitly allow the government to proactively search through the NSA data troves of information without a warrant,” said Michelle Richardson, the surveillance lobbyist for the ACLU.

“It may also expand current practices by allowing law enforcement to directly access US person information that was nominally collected for foreign intelligence purposes. This fourth amendment back door needs to be closed, not written into stone.”

Feinstein’s bill passed the committee on an 11 to 4 vote on 31 October. An expanded report on its provisions released by the committee this week added details about the ability of both intelligence and law enforcement to sift through foreign communications databases that it accumulates under section 702 of the Fisa Amendments Act of 2008.

Section 6 of Feinstein’s bill blesses what her committee colleague Ron Wyden, the Oregon Democrat and civil libertarian, has called the “backdoor search provision,” which the Guardian revealed thanks to a leak by Edward Snowden. 

The section permits intelligence agencies to search “the contents of communications” collected primarily overseas for identifying information on US citizens, resident aliens and people inside the US, provided that the “purpose of the query is to obtain foreign intelligence information or information necessary to understand foreign intelligence information or to assess its importance.”

Section 6 bills itself as a “restriction,” but it would not stop the NSA from performing the warrantless search, merely requiring intelligence agencies to log their queries and make them “available for review” to Congress, the Fisa court, the Justice Department and inspectors general inside the executive branch.

Additionally, the report on Section 6 explicitly states that the provision “does not limit the authority of law enforcement agencies to conduct queries of data acquired pursuant to Section 702 of Fisa for law enforcement purposes.”

There is ambiguity surrounding whether the FBI can currently search through the NSA’s foreign communications databases, or is reliant on the NSA to pass on information from the databases relevant to the bureau.

A declassified Fisa court document from 2011 refers to “FBI minimization procedures,” but it is unclear what those procedures are. A copy of the FBI minimization procedures from 2009, acquired by the ACLU under the Freedom of Information Act is almost completely redacted.

So is the section in the government’s most recent report on its Section 702 collection dealing with the FBI’s role, though it contains references to how the FBI “receive[s] … unminimized Section 70 acquired communications” from the NSA. 

Feinstein’s bill “seems to imply there is currently some authority for law enforcement to query the database, which [intelligence community] officials have not mentioned in any of their remarks on Section 702,” said Alan Butler, an attorney with the Electronic Privacy Information Center.

The provision is also unclear about whether law enforcement agencies can search through the foreign communications databases for information on US persons. Feinstein’s office did not respond to a request for clarification by deadline.

The ambiguity concerns civil libertarians, as it opens a door for law enforcement agencies to sidestep warrant requirements.

“If Senator Feinstein or other congressional supporters of this bill believe that it would in fact expand law enforcement access to the database, that would be an unjustified expansion of surveillance over Americans,” Butler said.

“Intelligence community leaders and those in charge of the congressional oversight committees have stressed many times that Section 702 is supposed to be about collecting foreign communications, and the law should make clear that is so.”

The surveillance blogger Marcy Wheeler first noticed the controversial provisions, and highlighted another on Thursday: the bill would permit contractors access to the NSA’s foreign communications databases. “The committee believes that, to the greatest extent practicable, all queries conducted pursuant to the authorities established under this section should be performed by federal employees,” according to the bill.

"Nonetheless, the committee acknowledges that it may be necessary in some cases to use contractors to perform such queries. By using the term ‘government personnel’ the committee does not intend to prohibit such contractor use.”

Wyden has sounded vague warnings about the existing “backdoor search” provision, and said in a statement released by the committee that the Feinstein bill “would give intelligence agencies wide latitude to conduct warrantless searches for Americans’ phone calls and emails under Section 702.” The statement was joined by Mark Udall, a Colorado Democrat, and Martin Heinrich, a New Mexico Democrat.

Feinstein’s bill is a direct competitor to a different surveillance bill in the Senate taken up by the judiciary committee. Sponsored by the committee’s chairman, Vermont Democrat Pat Leahy, and supported by Wyden and Udall, the bill would require a warrant to search of any NSA foreign communications database for any specific US person information.