In 2013, Edward Snowden opened Americans' eyes to a greater extent of our government’s surveillance capabilities. But while any good Samaritan might have reviewed the Foreign Intelligence Surveillance Act and seen how it could potentially harm people living in the United States, life after Snowden’s revelations has been conducted under the business-as-usual assumption that government powers grant it access to nearly any “private” form of communication between citizens.
The fact is, the power of our government to intercept those communications is still granted by FISA, also known as the Patriot Act. Like many government articles, FISA must be periodically renewed – and with last month's bi-partisan renewal for 2018, the act not only continues to grant our government access to a vast landscape private communications but expands government powers under section 702 of the law.
So what does this mean for you and me, and why should we be concerned?
How the Government Uses FISA
Technically, FISA only grants the government access to communications with people living outside the U.S. However, in practise it means that any conversation between someone here in the U.S. and another party suspected of living outside U.S. borders can be redacted without the need for a warrant. For example, communications between former national security adviser Michael Flynn and Sergey Kislyak of the Russian government were obtained through use of FISA.
FISA also allows the U.S. government to petition social media platforms like Google and Facebook to hand over private communications that occur on their platforms. However, when interactions occur between two U.S. citizens, they are not formally subject to the law defined in section 702. Not every request is fulfilled, and tech companies have made a policy of reporting the number of government requests for private citizens' data.
Section 702 and How it Changes in 2018
Last month's FISA reauthorization by Congress enables the government to obtain such private communications without a warrant for another six years. But what's newsworthy is that the powers of section 702 have been expanded in a way that few Americans might be aware.
For example, a newly drafted amendment by the House of Representatives would have added a number of new privacy measures to section 702, shoring up the rights of U.S. citizens who are being undeservedly investigated for communicating outside the country. However, the FISA version that was just passed makes warrantless seizures simpler, not harder, for government investigators to carry out.
Take people's so-called "about" searches. Often the stuff of popular conversation, this type of profiling allows government to investigate any individual taking part in a dialogue where specific details align with security initiatives. For instance, if people discuss the address of a terrorist target, it's likely to get picked up.
"About" searches were performed under the previous version of FISA, but were later halted because the National Security Agency felt there wasn't specific enough information available in the intercepted communications to ensure that innocent Americans weren't having their information unfairly collected. With the new FISA changes, that is no longer a concern.
The Upshot for Everyday Americans
For starters, it's wise to continue not using the term "the bomb" as a positive descriptor in digital communications. The language in the new amendment is somewhat murky and does make mention of a warrant in some places, but not in order to improve security. The warrant is only necessary for the FBI to do research in situations when matters of national security aren't involved. Anything that can be declared a national security matter is relieved of the warrant requirement.
The takeaway: The new amendment allows investigation into any communication where reference to a target is made. For example, sending an email to a friend with a reference to ISIS in the text could cause that communication to get swept into an NSA database. Any people who took part in that conversation could come under further investigation.
Trump Lends His Confused Commentary
President Donald Trump felt it was appropriate to share his opinion about the importance of renewing the FISA bill by tweeting his support. But like on most other occasions, he provided a source of mixed messaging to say the least.
At first, Trump suggested that the Obama administration may have used the powers granted by FISA to spy on Trump during the 2016 campaign. Then Trump changed his tone, adding that he had “personally directed a fix to the unmasking process.” Later, he went on to add that Congress had renewed the amendment, calling it the right thing to do for the American people and detailing that section 702 wasn’t the part of FISA used against him by Obama.
Trump also suggested that he would have preferred to make the amendment permanent instead of only renewing it for a six-year period. It's an interesting idea at a time when so many Americans are fearful about their privacy – and when the president himself is under federal investigation for possible collusion with a foreign government and obstruction of justice, among other suspected crimes.