Foreign Intelligence Surveillance Act Reform
- Privacy Board Supports End of NSA Call Record Program: The Privacy and Civil Liberties Oversight Board has issued a emphasizing the minimal value of the NSA's call details records program. The Board recommended the end of the program, which the NSA 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. (Feb. 27, 2020)
- House Judiciary Committee to Consider Surveillance Reform: The House Judiciary Committee will 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. (Feb. 25, 2020) More top news »
- EPIC Joins Civil Liberties Groups, Backs Surveillance Reform » (Feb. 12, 2020)
EPIC has joined 44 civil liberties organizations in endorsing the Safeguarding Americans' Private Records Act of 2020 ( / ), 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.
- Intelligence Court Rebukes FBI » (Dec. 19, 2019)
The Foreign Intelligence Surveillance Court this week criticized the FBI for misleading judges, following a scathing report from the Inspector General. In a rare , 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.
- Inspector General's Report Highlights Need for FISA Reforms » (Dec. 17, 2019)
The Inspector General's 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.
- EPIC to Congress: Do Not Renew Section 215 Surveillance Program » (Sep. 18, 2019)
In advance of a 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 with the reformed program, and the Director of National Intelligence that the limited collection program was suspended. Section 215 will sunset unless Congress chooses to renew the program.
- EPIC Comments on Third Annual Privacy Shield Review » (Jul. 15, 2019)
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 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 . The Commission , 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.
- U.S. Courts Release 2018 FISA Report » (Jul. 11, 2019)
The Administrative Office of the U.S. Courts has 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.
- Privacy Board to Review Use of Biometrics at Airports, Privacy of Passenger Data, and FBI Surveillance » (Jun. 26, 2019)
The 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.
- Annual Surveillance Report Reveals Upturn in U.S. Persons Call Record Searches, Unmasking » (Apr. 30, 2019)
According to the Office of Director National Intelligence 2018 , 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.
- U.S. Defends Privacy Shield, But Fails to Comply with Privacy Commitments » (Sep. 5, 2018)
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 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 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 the investigation of Facebook's compliance with the , which followed a complaint from EPIC and other consumer privacy organizations.
- NSA Inspector General Issues First Unclassified Report » (Jul. 25, 2018)
The NSA's issued the unclassified to Congress on the . 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 routinely highlights reporting on federal surveillance under the Wiretap Act. In EPIC v. NSA, EPIC obtained the , outlining the agency's authority for domestic surveillance.
- EPIC, Coalition Urge Compliance With Freedom Act Transparency Requirements » (May. 31, 2018)
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 . 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.
- Annual ODNI Report Reveals Upturn in US Surveillance » (May. 7, 2018)
According to the Office of Director National Intelligence , 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 .
- EPIC Comments to UN Highlight Privacy Flaws in US Surveillance, Consumer Protection » (Apr. 6, 2018)
EPIC has submitted input to the for an on the right to privacy in the digital age. The OHCHR is soliciting information for a report to on the right to privacy around the world. EPIC's comments detail shortcomings in US privacy law, including the CLOUD Act, the reauthorization of FISA Section 702, and FTC's failure to enforce consumer privacy guarantees. EPIC also highlighted the need for the to promote fundamental privacy rights, particularly Article 12 of the Universal Declaration of Human Rights.
- EPIC Joins Call for Increased Oversight of Intelligence Agencies » (Feb. 9, 2018)
EPIC and other leading open government organizations 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.
- Congress Renews Controversial Surveillance Measure, EU Impacted » (Jan. 18, 2018)
In a decision that could jeopardize relations with Europe, Congress has "Section 702" of the Foreign Intelligence Surveillance Act, which permits broad surveillance of individuals outside of the United States. The also permits government surveillance of Americans and restarts the controversial collection program. Congress rejected , 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 whether to allow data transfers from Ireland to the United States. EPIC served as the US NGO amicus curiae in that case.
- EPIC v. NSD: EPIC Obtains Secret Report on "Backdoor Searches," FBI's Failure to Follow Procedures » (Jan. 9, 2018)
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 these searches. The , now pending in Congress, would require a federal agency to obtain a warrant to search foreign surveillance data for information on Americans.
- Senators Leahy and Lee Introduce USA Liberty Act, Reform for FISA Spying » (Nov. 20, 2017)
Senator Patrick Leahy (D-VT) and Senator Mike Lee (R-UT) have introduced the 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 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.
- EPIC v. DOJ: Court Orders DOJ to Defend Withholding of FISA Reports » (Nov. 7, 2017)
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.
- Senators Introduce USA Rights Act, Back Significant Reforms to FISA Spying » (Oct. 24, 2017)
Eleven senators introduced bipartisan to reauthorize the Foreign Intelligence Surveillance Act with significant new civil liberties protections. Among other reforms, the USA Rights Act the 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 sought by Europeans during the recent review. Senate Intelligence Committee Chair Richard Burr would expand 702 surveillance authorities. EPIC and a coalition of organizations recently the markup hearing on the proposal be opened to the public.
- EPIC, Coalition Call for Public Hearings on Surveillance Reform Proposals » (Oct. 20, 2017)
EPIC joined a coalition of privacy and civil liberty organizations 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, Coalition Call for End to Warrantless Section 702 Searches of Americans' Data » (Oct. 3, 2017)
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 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 Feinstein Proposes Reforms to Broad Spying Authority » (Jun. 9, 2017)
Senator Dianne Feinstein, the former chair of the Senate Intelligence Committee, today 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 of 2008. In 2012, EPIC testified before Congress on the need to establish better oversight for Section 702 prior to renewal.
- EPIC Seeks Release of FISA Order for Trump Tower » (Mar. 6, 2017)
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.
- EPIC Urges House Committee To Ensure Transparency, Public Reporting in Surveillance Law » (Mar. 1, 2017)
In advance of a 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.
- Senator Leahy Calls for FISA Reforms » (May. 13, 2016)
The Senate Judiciary Committee held a 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 “” program. EPIC 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 of the section 702. This week Senator Patrick Leahy (D-VT) that "additional reforms are needed to protect Americans’ privacy, and restore global trust in the U.S. technology industry."
- Intelligence Court Skeptical of Some FISA Applications » (May. 3, 2016)
The Department of Justice has published the , 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 , which limited bulk collection under section 215, the FISC modified many of those orders.
- EPIC Joins Call for Transparency on Number of Americans Caught in NSA Surveillance » (Nov. 2, 2015)
EPIC, joined by over 30 other organizations, 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.
- Surveillance Court Ignores Court Ruling, Reauthorizes NSA Bulk Collection Program » (Jul. 1, 2015)
The Foreign Intelligence Surveillance Court has reauthorized the collection of domestic telephone records for 180 days. The Surveillance Court ignored the recent decision of the Federal Court of Appeals, which held that the NSA bulk collection program is unlawful. In 2012, EPIC testified before the House Judiciary Committee on the need to reform the Surveillance Court. In 2013, EPIC filed a petition in the Supreme Court, In re EPIC, arguing that the NSA program was unlawful. In 2014, EPIC and a broad coalition urged the President to end the NSA surveillance program. Congress then passed the to end program, but the FISC didn't get the memo.
- House Passes Surveillance Reform Bill, Deadline Looms for Senate » (May. 14, 2015)
The House of Representatives has the . The bill would end the NSA's controversial domestic telephone record collection program--a program the Second Circuit Court of Appeals recently 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.
- Federal Appeals Court Strikes Down NSA Bulk Record Collection Program » (May. 7, 2015)
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."
- Schneier: Over 700 Million People Taking Steps to Avoid NSA Surveillance » (Dec. 17, 2014)
Famed technologist and EPIC Advisory Board member Bruce Schneier against media claims that Edward Snowden's revelations about the NSA have had little impact on Internet users. A 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 and 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 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.
- British Court Upholds Mass Surveillance by UK Spy Agency » (Dec. 8, 2014)
The , which reviews complaints of unlawful surveillance by Britain's intelligence agencies, 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.
- Senator Leahy Calls on the President to End Bulk Collection of Phone Records » (Dec. 4, 2014)
Today Senator Patrick Leahy (D-VT) 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 . 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.
- EPIC Seeks Reports on FISA Court Decisions » (Nov. 24, 2014)
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.
- Senate Republicans Block US Surveillance Reform » (Nov. 19, 2014)
An effort to pass the 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.
- Documents Obtained by EPIC Lawsuit Show NSA’s Internet Metadata Program Was Sharply Criticized By FISA Judges While Congressional Oversight Lagged for Years » (Aug. 12, 2014)
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 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.
- Senator Leahy Introduces Bill to End NSA Bulk Record Collection » (Jul. 29, 2014)
Today Senator Patrick Leahy (D-VT), joined by Democratic and Republican Senators, introduced 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 . Civil liberties organizations 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.
- Federal and State Wiretaps Up 5% in 2013 According to Annual Report, But Stats Don't Support FBI Claims of "Going Dark" » (Jul. 29, 2014)
The Administrative Office of the U.S. Courts has issued the , 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 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.
- House Adopts Weakened NSA Reform Bill, Senators Now Look to Improve Privacy and Transparency Protections » (May. 23, 2014)
The U.S. House of Representatives to adopt a modified . 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.
- House Judiciary Committee to Consider Bill to End Bulk Surveillance, Improve NSA Oversight » (May. 5, 2014)
The House Judiciary Committee has of the USA Freedom Act. The proposed , 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.
- Annual FISA Report Shows Decrease in Surveillance Orders, Questions About Scope Remain » (May. 1, 2014)
The Department of Justice has published the . 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 . 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.
- EPIC Obtains Secret Attorney General Reports on Electronic Surveillance » (Mar. 19, 2014)
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 FOIA Lawsuit, EPIC Obtains Secret Reports on Data Collection » (Mar. 3, 2014)
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.
- Federal Communications Commission Seeks Public Comment to Protect Phone Record Privacy » (Jan. 7, 2014)
The Federal Communications Commission has public comments on a 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.
- Senate Confirms Judge Wald for Privacy Oversight Board » (Dec. 13, 2013)
The Senate the reappointment of Judge Patricia M. Wald to the . 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 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.
- Presidential Task Force to Recommend Changes at NSA » (Dec. 13, 2013)
The , to recommend surveillance reforms, will send a final report to the President this Sunday. According to one , 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 Supports Petition Urging FCC to Protect Phone Record Privacy » (Dec. 11, 2013)
EPIC has joined a 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 Asks Federal Court to Require Immediate Release of Government Surveillance Reports » (Dec. 9, 2013)
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 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).
- EPIC Urges FCC to Investigate AT&T’s Practice of Selling Consumer Phone Records » (Nov. 18, 2013)
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 and . 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 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.
- Leahy and Sensenbrenner Introduce USA FREEDOM Act » (Oct. 29, 2013)
The Democratic Chair of the Senate Judiciary Committee and the Republican author of the Patriot Act have introduced the , 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.
- Government Responds to EPIC's Supreme Court Challenge of NSA Telephone Record Program » (Oct. 14, 2013)
The Solicitor General has filed a to EPIC's challenge to the NSA's telephone record collection program. In July, EPIC the Supreme Court to vacate the 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 , , , and . Congressman James Sensenbrenner, the primary author of the Patriot Act, has the telephone records collection program was never authorized by Section 215. For more information, see .
- Senator Leahy Urges FISA Reform at Georgetown Law » (Sep. 25, 2013)
Speaking at a , the Chairman of the Senate Judiciary Committee "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 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 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.
- Senators Call for Public Report by IC Inspector General on NSA Surveillance » (Sep. 24, 2013)
A bipartisan group of Senators, including the Chairman and Ranking Members of the Senate Judiciary Committee, have 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.
- Foreign Intelligence Court Releases Controversial Opinion on Domestic Telephone Records Program » (Sep. 20, 2013)
The Foreign Intelligence Surveillance Court (FISC) has released an , 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 . For more information, see In re EPIC.
- EPIC Meets with President's Intelligence Review Group » (Sep. 9, 2013)
EPIC President Marc Rotenberg and EPIC Advisory Board Member Steve Aftergood met today with the . The President 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 firstname.lastname@example.org, which oddly is the domain of the current Director of National Intelligence.
- New Surveillance Reports for Intelligence Community » (Aug. 30, 2013)
The Director of National Intelligence has 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 issued by the Administrative Office of the U.S. Courts. 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 Announces Intelligence Review Group, EPIC Presses for FISA Reform » (Aug. 28, 2013)
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 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.
- FISA Court: NSA Violated Fourth Amendment and the FISA » (Aug. 22, 2013)
A newly released 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.
- FISA Court Renews Unlawful Surveillance Program, DOJ Defends Program » (Jul. 22, 2013)
, 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 , the Department of Justice that a federal district court in New York could not overturn the order of the FISA court. And in a July 16 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 Speaks to Oversight Board, Former Judge Questions FISC » (Jul. 10, 2013)
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 . Retired Judge , 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 . For more information, see EPIC: Foreign Intelligence Surveillance Act and EPIC: NSA Petition.
- Federal and State Wiretaps Up 24%, Primary Target Mobile Devices According to 2012 Report » (Jun. 28, 2013)
The Administrative Office of the United States Courts has issued the the . 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, 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 Leahy Introduces Legislation to Limit NSA Domestic Surveillance » (Jun. 25, 2013)
Senator Patrick Leahy (D-VT), joined by several other Senators, has introduced a 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 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 , 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 last year before the House Judiciary Committee. For more information, see EPIC: Foreign Intelligence Surveillance Act and EPIC: NSA Petition.
- NSA Targeting and Minimization Procedures Released » (Jun. 21, 2013)
The Guardian has posted the procedures used by the National Security Agency to non-US citizens under the Foreign Intelligence Surveillance Act, as well as the 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 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.
- EPIC Calls on FCC to Investigate Unlawful Disclosure of Consumer Phone Records » (Jun. 12, 2013)
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.
- Senators Push For Release of Foreign Intelligence Surveillance Court Orders » (Jun. 12, 2013)
A bipartisan group of senators, led by Senator Jeff Merkley (D-OR) and Senator Mike Lee (R-UT), has 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 Seeks Legal Justification for NSA Domestic Surveillance Program » (Jun. 7, 2013)
EPIC has filed a with the Department of Justice, seeking the agency's justification for the NSA domestic surveillance program. The Department of Justice 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 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 , , and EPIC: USA Patriot Act.
- Congress Begins Investigation of NSA Domestic Surveillance Program » (Jun. 7, 2013)
Following the revelation of that the National Security Agency is , members of Congress are initiating new oversight proceedings. The Senate Intelligence Committee . Members of the House Judiciary Committee , "We believe this type of program is far too broad and inconsistent with our nation's founding principles." During a , Sen. Mark Kirk (R-IL)asked Attorney General Eric Holder whether the NSA has spied on members of Congress. EPIC has sent a calling for an investigation into the NSA's activities, and alleging that the FISC's authorization of the Verizon search was unlawful. For more information, see , , and .
- EPIC to Congress: 'NSA Domestic Surveillance Program is Unlawful' » (Jun. 7, 2013)
EPIC has sent a charging that the National Security Agency's demand for domestic telephone records is unlawful. EPIC stated, "The Foreign Intelligence Surveillance Court 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 , , and .
- Sweeping NSA Domestic Surveillance Order Approved Without Any Ties to Foreign Intelligence Collection » (Jun. 6, 2013)
An unprecedented order from the Foreign Intelligence Surveillance Court indicates that the FBI and the NSA obtained vast amounts of data on Verizon customers without any ties to a foreign intelligence investigation. Last year, in testimony for the House Judiciary Committee, EPIC urged Congress not to renew the Foreign Intelligence Surveillance Act without first establishing appropriate oversight mechanisms. EPIC warned "there is simply too little known about the operation of the FISA today to determine whether it is effective and whether the privacy interests of Americans are adequately protected." For more information, see EPIC: Foreign Intelligence Surveillance Act, , and EPIC: USA Patriot Act.
- 2012 FISA Orders Up, National Security Letters Down, No Surveillance Request Denied » (May. 2, 2013)
According to the , 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.
- Supreme Court Blocks Challenge to FISA Surveillance » (Feb. 27, 2013)
The Supreme Court ruled today in 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.
- Senate to Debate Privacy Amendments for Surveillance Law » (Dec. 26, 2012)
The Senate is 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 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.
- Justices Hear Arguments in Surveillance Standing Case » (Oct. 29, 2012)
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.
- EPIC Urges Supreme Court to Uphold Review of Wiretapping Programs » (Sep. 24, 2012)
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 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).
- House Renews Foreign Intelligence Surveillance Powers » (Sep. 12, 2012)
The House to reauthorize the (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 before the 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.
- FISA Reform Proposal Moves Forward in Senate » (Jul. 20, 2012)
The Senate Judiciary Committee has approved a that would established new safeguards for the . 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 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.
- House Panel Votes to Renew Surveillance Law Without New Safeguards » (Jun. 21, 2012)
The voted to reauthorize the , 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 before the Committe and recommended that Congress strengthen oversight procedures to protect privacy and limit possible misuses of the legal authority. But 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.
- House to Consider Bill to Reauthorize Expansive Surveillance Law » (Jun. 18, 2012)
The House Committee on the Judiciary will the on Tuesday, June 19, 2012. The authorizes government surveillance of international communications, including the private communications of United States citizens. Currently, the law provides to Congress or the public about these surveillance activities. EPIC Executive Director Marc Rotenberg recently at an , and called on Congress to strengthen oversight procedures and increase transparency before the Act is renewed. In a recent 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 to Congress: "Strengthen FISA Oversight" » (Jun. 1, 2012)
EPIC Executive Director Marc Rotenberg will testify before the on the FISA Amendments Act of 2008. The 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 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 . For more information, see EPIC: Foreign Intelligence Surveillance Act and EPIC: Clapper v. Amnesty International.
- EPIC to Testify on Foreign Intelligence Surveillance Act » (May. 25, 2012)
- Supreme Court Set to Review Wiretap Case » (May. 21, 2012)
The Supreme Court has 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 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).
- 2011 FISA Orders Up, National Security Letters Down, No Surveillance Request Denied » (May. 4, 2012)
According to the 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 , 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.
- Congressional Leaders Strike Deal to Extend Patriot Act » (May. 20, 2011)
Lawmakers in the House and the Senate have reached an 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 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 (FISA) to allow the FBI to use National Security Letters for In place of court-approved warrants. In 2010, , up 64% from the previous year. For more Information, see and .
- 2010 FISA Orders Up 19%, No Surveillance Request Turned Down » (May. 9, 2011)
The Department of Justice has released the . In 2010, the Justice Department submitted 1,579 FISA search applications to the Foreign Intelligence Surveillance Court, a 19% increase over 2009. The court did not deny or modify any applications. Also in 2010 the FBI made 24,287 National Security Letter requests for information pertaining to 14,212 different U.S. persons. This is a substantial increase from the 14,788 national security letter requests concerning 6,114 U.S. persons in 2009. EPIC has greater accountability for the . For more information, see: and .
- EPIC v. DOJ: Warrantless Wiretapping Memos Disclosed » (Mar. 22, 2011)
Pursuant to , the Justice Deparment has turned over two legal memos concerning the Bush-era warrantless wiretapping program. EPIC sought these memos within hours after the on the wiretapping program in 2005. The memos, dated and , contain portions of the Bush Administration's justifications for the program, but are heavily redacted. The Obama Administration three other memos in their entirety. For more information, see , , and
- EPIC Supports Proposed Reforms for Surveillance Court, Urges Additional Measures » (Oct. 4, 2010)
EPIC has submitted on the for the Foreign Intelligence Surveillance Court. In comparison to the , 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 and .
- Surveillance Court Seeks Public Comments on Proposed Rules » (Sep. 8, 2010)
The authorizes a special court the Foreign Intelligence Surveillance Court (FISC) to undertake electronic surveillance in the United States for foreign intelligence information. The FISC is now seeking concerning its procedures. Comments must received by Monday, October 4, 2010. EPIC previously submitted an amicus brief regarding FISA authority and national security. EPIC will be submitting comments to the FISC and endorse changes that improve accountability and transparency for FISA orders. See and
- Inspector General Finds "Egregious Breakdown" in FBI Oversight » (Jan. 21, 2010)
The Department of Justice has issued a report on the FBI's use of "exigent letters" and other means to obtain telephone records from three unnamed phone companies. 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 to the Senate Judiciary Committee, EPIC recommended that the FBI's National Security Letter authority be repealed. For more information, see .
- House Members Introduce PATRIOT and FISA Reform Bills » (Oct. 20, 2009)
Representatives Conyers, Nadler, and Scott that would amend the PATRIOT Act and the Foreign Intelligence Surveillance Act. The will enhance reporting and judicial oversight of law enforcement powers, including the National Security Letter process. The 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 , .
- PATRIOT Act Revisions Introduced in Senate » (Sep. 17, 2009)
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 , , , and .
- Senators Consider PATRIOT Act Reforms » (Aug. 7, 2009)
Senators and are reforms to revise the USA PATRIOT Act. The USA PATRIOT Act allows authorities to conduct surveillance without judicial review through the use of . The Senators asked the and the to consider two that add protections to . Pursuant to a EPIC lawsuit, a federal judge had the to provide for independent judicial inspection of documents relating to . For more information, see , , , and .
- Inspector Generals Release Report on President's Surveillance Program » (Jul. 10, 2009)
The Inspector Generals of the released a on the President's Surveillance Program. The report summarizes the unclassified collective results of the reviews. The Program involved the massive, warrantless surveillance of Americans in the United States. The IG Report finds that the absence of effective oversight contributed to the ineffectiveness of the program. In December 2005, EPIC had that were prepared to justify the program. The government has refused to produce many key documents, and EPIC sued under the Freedom of Information Act. In March this year, the Attorney General , which previously were secret, following President Obama's on government transparency. See , , , and .
- FBI's Use of FISA Increasing » (May. 20, 2009)
In a to Congress, the 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 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 , , and Wiretapping.
- Applications for Court Approved Wiretaps Down in 2008 » (Apr. 28, 2009)
According to the 2008 Wiretap , 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. (.) 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 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.
- Federal Intelligence Court Rules Warrantless Wiretapping Legal » (Jan. 15, 2009)
The Foreign Intelligence Surveillance Court of Review has the release of a redacted . The federal intelligence court 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 .
- , H.R. 3361 (Rep. Sensenbrenner), S. 1599 (Sen. Leahy) (2014)
- in the House Judiciary Committee scheduled for May 7, 2014
- (Released by Rep. Sensenbrenner on May 5, 2014)
- , H.R. 4291 (Rep. Rogers) (2014)
- , S. 1631 (Sen. Feinstein) (2013)
- , S.Ct. No. 13-58 (Jul. 8, 2013)(seeking a writ of mandamus to vacate the order of the FISC requiring production of all Verizon telephone records).
- Testimony of EPIC Executive Director Marc Rotenberg, before the Subcommittee on Crime, Terrorism, and Homeland Security of the House Committee on the Judiciary (2012).
- EPIC (2010).
- American Bar Association, Section on Individual Rights and Responsibilities, (Feb. 10, 2003).
- ACLU, (June 21, 2013).
- , ProPublica (June 7, 2013).
- , ProPublica (2013).
- Office of the Director of National Intelligence,
- , Alina Selyukh, Reuters (Aug. 29, 2013)
- , Tony Romm, Politico (Aug. 29, 2013)
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Recent debates over the scope and legality of foreign intelligence surveillance relate to two key provisions of the Foreign Intelligence Surveillance Act ("FISA"). These provisions were added and subsequently amended in the decade following the attacks of September 11, 2001. The first is the business records provision, which was established in the USA PATRIOT Act, Section 215. The second is the provision outlining procedures for targeting certain persons outside the United States other than United States persons, added by Section 702 of the FISA Amendments Act of 2008 ("FAA"). Both of these provisions expanded the scope of foreign intelligence surveillance that can be conducted within the United States.
As new details have emerged about the FBI and NSA's domestic intelligence-gathering practices, it has become clear that the current system does not provide sufficient transparency to ensure public oversight and trust. There are three main problems with the current system that have allowed this to occur: the development of a secret body of constitutional and statutory law by the FISC, structural limitations on judicial review of FISA surveillance, and rules inhibiting Congress’ ability to facilitate public oversight. As a result, important questions about the scope and nature of surveillance activity have remained unanswered and the public has been left in the dark.
Stop Unlawful Collection of Domestic Telephone Records
Over the last two months, top administration officials including the Director of National Intelligence have acknowledged the NSA's telephone metadata program, which involves the collection of a majority of call records in the United States. EPIC and others have argued that the FISC simply lacks the authority to grant an order for all domestic call detail records from Verizon or any other communications provider. Under the relevant FISA provision, the court is authorized to issue an order compelling production of business records if it finds that they are "relevant to an authorized investigation" of international terrorism. The FISC is not authorized to compel a service provider to produce, on an ongoing basis, the call detail records of millions of innocent Americans, which are irrelevant to any national security investigation. The NSA's domestic metadata surveillance program is unlawful under the FISA.
Last month, in response to the unlawful FISC order, EPIC filed a petition for a Writ of Mandamus in the U.S. Supreme Court, seeking to vacate the order and find that the FISC exceeded its statutory authority. Four groups of leading privacy and constitutional scholars then filed amicus curiae briefs in support of the EPIC Mandamus Petition, and the Solicitor General indicated that he will be filing a response. Legal experts agree that this bulk collection of Americans' telephone records exceeds the limitations of Section 215, that it undermines the Congressional intent of the FISA, that it is contrary to the purposes of the Fourth Amendment, and that the Supreme Court has the authority to issue the relief that EPIC seeks.
The current domestic metadata surveillance program is unlawful and should be discontinued.
Enable Public Oversight of Surveillance Programs
At present, the FISA grants broad surveillance authority with little to no public oversight. Section 702 of the FISA Amendments Act of 2008 ("FAA"), which was reauthorized on December 30, 2012, grants the Attorney General and the Director of National Intelligence broad authority to conduct surveillance targeted at persons reasonably believed to be outside the United States. The FISC has found that surveillance conducted under Section 702 directives acquires tens of thousands of "wholly domestic" communications each year. Given the significance of this intrusion into Fourth Amendment-protected communications, it is necessary to establish public oversight of these programs by requiring detailed annual reports.
Soon after the passage of the USA PATRIOT Act, which amended various FISA provisions, a special committee of the American Bar Association undertook an evaluation of the expanded use of FISA and made recommendations to ensure effective privacy safeguards. The ABA recommended an "annual statistical report on FISA investigations," comparable to the annual Wiretap Report published by the Administrative Office of the United States Courts. EPIC recently emphasized the need for such a report given the broad scope of surveillance authorized by the FAA. Each year, EPIC and other organizations closely review the wiretap report released by the administrative office, which provides a comprehensive overview of the cost, duration, and effectiveness of surveillance authorized under Title III. The wiretap report is a critical document that allows the public to evaluate the effectiveness of surveillance conducted in criminal investigations.
In contrast with the wiretap report, the annual FISA letter sent by the Attorney General provides very little useful information about the use of intelligence authorities. The letter recites the number of applications made by the government for electronic surveillance, physical searches, and access to certain business records as well as the requests made by the Federal Bureau of Investigation pursuant to the National Security Letter authorities. The letter also notes the number of applications for electronic surveillance withdrawn by the government, modified by the FISC, or denied by the FISC in whole or in part. Importantly, the letter does not provide any context about the scope of business records collected under Section 215 or any information about the number of directives issued pursuant to Section 702.
Administration officials should publish more information about current surveillance programs, including details about their use, effectiveness, and their impact on the privacy of U.S. persons.
Publish All Significant FISC Opinions
The FISC has jurisdiction to "hear applications for and grant orders approving electronic surveillance" and "physical search[es]" for the "purpose of obtaining foreign intelligence information" on foreign nationals within the United States. The FISC also has the authority to grant applications for pen/trap surveillance and orders compelling the production of business records. Applications to the FISC are secret and its hearings are non-adversarial and ex parte. In addition, FISC opinions are classified and there is no requirement that they be declassified and published. As a result of FISC's review of Section 702 targeting and minimization procedures, the court is now ruling on important and novel Fourth Amendment issues. This new body of secret constitutional and statutory law makes it difficult for the public to fully evaluate the scope and impact of the intelligence surveillance programs.
EPIC has previously proposed amendments to the FISC's rules that would increase transparency and reporting of court opinions. In comments to the FISC in 2010, EPIC urged the Court to regularly publish its orders, opinions, or decisions. "In order to fully understand how FISA is being interpreted by the Court and to determine whether the Court has been an objective check to an overzealous government, the public and Congress need access to the Court's rulings." While facts, sources, or methods may be properly classified, legal analysis and judicial opinions should be shared with the public. Secret law is contrary to values and needs of democratic government.
The publication of significant FISC opinions, including those already provided to congressional intelligence and judiciary committees, should be mandatory and subject to a prompt declassification process.
Make the FISC More Adversarial
In addition to the proposals discussed above, EPIC also supports the creation of a &"special advocate" to bring adversarial proceedings to the FISC. President Obama has endorsed the creation of a FISC adversary that argues in favor of civil liberties and in the public interest, and prominent members of Congress have already introduced relevant legislation.
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