Advocacy groups press for open dialogue on foreign surveillance reform

Twenty-five human rights and privacy advocacy groups sent a letter Wednesday to Congressional leaders urging them to hold an open, public hearing on a surveillance law that critics complain lets US spy agencies snoop on American citizens.

In their letter, the coalition asks Rep. Robert William Goodlatte (R) of Virginia and Rep. John Conyers (D) of Michigan, ranking members of the House Judiciary Committee, to open a Feb. 2 hearing on Section 702 of the Foreign Intelligence Surveillance Act Amendments Act. That measure is one of the main legal authorities the National Security Agency relies on to carry out foreign surveillance.

"We were surprised when we recently learned that you may soon hold a hearing in a classified format, outside of public view," read the letter, sent by groups such as the American Civil Liberties Union, Amnesty International USA, Human Rights Watch, and OpenTheGovernment.org.

While the Edward Snowden revelations of 2013 revealed how often US government agencies use Section 702 to collect foreign digital communications, resulting in widespread criticism in the US and among American allies, last year's surveillance reform law known as the USA Freedom Act didn't address the overseas data collection measures.

Now, privacy advocates and civil liberties groups want to renew the debate on Section 702, as many say the NSA can use the law as a workaround to actually carry out surveillance on US citizens.

"Under Section 702, the government collects, searches, and uses the contents of millions of Americans' international communications without a warrant and in violation of the Fourth Amendment," said Neema Guliani, a legislative counsel for the ACLU. "The public is rightfully concerned by this surveillance, and it is past time for Congress to hold public hearings and halt the abuses occurring under this controversial provision of the law."

Committees that deal with sensitive national security issues often hold closed hearings in order to receive classified testimony from government officials. Supporters argue closed hearings are necessary to protect national security and ensure officials can speak openly, while critics see them as part of a larger trend of over-classification that limits Americans’ ability to be informed on those issues.

"We think the government, all branches, has a duty and a responsibility to conduct its work in the open to the maximum extent possible while protecting legitimately and appropriately classified information," said Patrice McDermott, executive director of the nonprofit OpentheGovernment.org. "We do not think that a congressional oversight hearing on the implementation of a law should ever be conducted in a completely closed, classified session."

Section 702 is one of the main legal authorities under which the National Security Agency carries out foreign surveillance. The government cannot target a US person – an American citizen or permanent resident – under Section 702. However, it can store and search data it incidentally collects from US persons while targeting foreign entities. That authority can also assume intelligence physically collected outside the US is foreign, even if that’s no longer how information networks work.

"Our data travels all over the world," Kade Crockford, director of the Technology for Liberty Project at the ACLU of Massachusetts, told Al Jazeera America. "It's very difficult, in the 21st century, to draw bright lines between what is domestic and what is foreign."

Critics argue that the NSA can use section 702 as a workaround to actually carry out surveillance on US citizens. The spy agency searched Section 702 data for US persons 198 times in 2013, according to a June 2014 report by the Office of the Director of National Intelligence. The CIA did about 1,400 searches. Federal law specifically exempts the FBI from reporting how often it searches 702 data, but the agency did say it "believes the number of queries is substantial."

A 2014 report by the Privacy and Civil Liberties Oversight board found that the way government agencies implemented Section 702's foreign surveillance powers was consistent with the law. However, the same report concluded that "certain aspects of the Section 702 program push the program close to the line of constitutional reasonableness."

Following the Edward Snowden revelations that revealed how often US agencies rely on Section 702 and other surveillance mechanisms, widespread criticism of those programs culminated in last year's USA Freedom Act.

However, that bill only touched NSA programs that fall under the USA Patriot Act – not the Foreign Intelligence Surveillance Act. An amendment to the 2015 National Defense Authorization Act would have defunded searches of data collected under Section 702 for information on US persons. However, that amendment did not make it into the final legislation.