March 18, 2019 (Washington, D.C.) — Access Now joins more than 30 civil society organizations in calling for U.S. House Judiciary Committee leaders to release critical information regarding the current implementation of U.S. surveillance laws. These laws, including Section 215 of the Patriot Act, have provided the basis for U.S. intelligence agencies conducting indiscriminate surveillance on a massive scale, impacting millions of people around the world. The provisions are set to expire on December 15, 2019, and it is crucial that congressional leadership facilitate an open and in-depth public debate over the power and reach of the U.S. surveillance apparatus.
There are significant unresolved questions regarding how surveillance programs have been operationalized since Congress passed reform under the USA FREEDOM Act in 2015. Recent reports indicate the National Security Agency’s call detail records program, which captures certain phone call metadata, has been inactive for the past six months. This follows the NSA’s announcement from June 2018 that it had deleted its entire database of call detail records due to “technical irregularities” that resulted in the agency receiving data it was not authorized to collect.
A congressional aide has indicated the Trump administration may choose not to seek reauthorization of the program under Section 215. However, surveillance experts have postulated that this simply means the program may have been moved under another, more secretive authority where it can be conducted without the restrictions from the 2015 reforms.
“The U.S. surveillance system is broken, even by the government’s own admission,” said Amie Stepanovich, U.S. Policy Manager at Access Now. “To fix it, the conversations about how to restore respect for privacy for individuals around the globe, rein in indiscriminate and ineffective data collection, prevent disproportionate impacts on marginalized and at-risk communities, and equip law enforcement with rights-respecting tools absolutely must take place in a public sphere.”
In addition to the points raised in the letter, Access Now emphasizes that the U.S. government has continually failed to acknowledge its international human rights obligations, or to implement comprehensive reform limiting global surveillance activities to what is necessary and proportionate. U.S. surveillance law and policy as a whole interferes with people’s human rights both domestically and abroad. We must stay vigilant, especially in light of Congress’s choice just last year to not only reauthorize but expand rights-abusing powers under Section 702 of the FISA Amendments Act, which covers programs like PRISM and Upstream.
It is crucial that both Congress and the public gain clarity from the NSA and the rest of the intelligence community on exactly which programs are active, which have been discontinued, how they are used, and the process by which those decisions were made.
Further, while it is positive news that the administration may be open to limiting certain existing surveillance authorities, it is absolutely critical that we find out the extent to which certain elements of surveillance programs have been shuffled around and the legal rationale for doing so. This kind of shell game, absent public disclosures, would not only further cloud the existing surveillance landscape but also sidestep an important opportunity to implement much-needed reform.
When Edward Snowden facilitated the publication of documents about the massive reach and use of U.S. surveillance authorities, at great personal risk, he initiated a much-needed global conversation. Secretively moving the program under other, broader authorities would unacceptably negate that progress and nullify the intelligence community’s own promises of transparency and accountability.