Trump Officials Say Warrantless Surveillance Program Will Continue Whether Congress Approves It This Year or Not
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Director of National Intelligence Dan Coats at a news conference in Washington on Aug. 4, 2017. (Photo: AP)

Having come to the realization that there's little hope for renewing the warrantless surveillance program known as Section 702 by the end of the month, Trump administration attorneys now contend there's a legal basis for continuing the program through next April.

Debate over potential reforms to the program, enacted under the FISA Amendments Act of 2008, continue in Congress, but have been largely overshadowed by Republican efforts to overhaul the tax code.

The Office of the Director of National Intelligence (ODNI) has acknowledged that the government believes the program could remain active for several months past its supposed expiration date, even if Congress fails to extend it, the New York Times reports . Section 702, which authorizes the government to collect intelligence on foreign targets located outside of the United States, is set to expire by the end of the year.

Critics of Section 702 point out that, while the law prohibits the targeting of US citizens, the program regularly results in the collection of innocent Americans' communications.

As it is currently written, Congress must reauthorize the program on a yearly basis. But as it was last certified on April 26, executive branch attorneys argue that the program may remain operation without reauthorization until April 2018, as that falls within a 12-month window. This extension would ostensibly give the intelligence committees more time to discuss potential changes to the bill.

The program was reauthorized this April after the Foreign Intelligence Surveillance Court issued two short-term extensions while the National Security Agency (NSA) wrestled with how to continue collecting intelligence without skirting the Fourth Amendment. Leaks by former intelligence contractor Edward Snowden revealed that the NSA had been collecting not just emails to and from foreign targets, but communications between other people mentioning them. The NSA referred to these systemic violations as "inadvertent compliance incidents."

That the program allows government officials to read the content of Americans' private communications without a warrant has long been a point of contention among privacy advocates. What's more, Director of National Intelligence Dan Coats (DNI) refused, when questioned by Sen. Ron Wyden this year, to confirm whether or not the government believes the program authorizes intelligence agencies to collect communications it knows to be entirely domestic.

In July, top intelligence and law enforcement officials, including Coats, were asked during a hearing before the Senate Select Committee on Intelligence (SSCI) whether they believed Section 702's blanket authorization allowed the government to compel US tech companies to build so-called "backdoors" into encrypted consumer products , such as iPhones. The officials responded by saying the program authorized the government to "direct" tech companies to provide the government with information and assistance "necessary to accomplish the acquisition."

Should a tech company refuse to comply with the request, the government said, it may seek an order from the Foreign Intelligence Surveillance Court (FISA) compelling the company to assist. The DNI said as of yet the government has not sought such an order. But it remains unclear whether or not the government has ever requested access to an encryption backdoor citing Section 702-or whether any companies have automatically complied with such a request, if it were made.

Earlier this year, Sen. Wyden introduced an amendment that would have prohibited under Section 702 the acquisition of communications known to be entirely domestic. Only Senators Martin Heinrich and Kamala Harris supported the amendment. About a dozen fellow SSCI members voted against it.

National security reporter Marcy Wheeler wrote on November 15th that the Wyden amendment would have effectively prevented intelligence agencies from collecting-to obtain foreigners' data-traffic routed through the Tor network, which tens of thousands of Americans use. (Tor is software used to anonymize users and defeat surveillance by encapsulating traffic in layers of encryption and routing it through a series of nodes, called "onion routers.")

The US government has repeatedly refused to disclose an estimate of how many Americans have had their communications swept up via Section 702 surveillance, and earlier this year announced it has no plans to issue one.

"[W]hen I asked the director of national intelligence whether Section 702 could be used to collect communications the government knows are entirely domestic, he first testified no; then said he was answering a different question than the one I asked; and then said the whole thing was classified." Sen. Wyden wrote in a recent op-ed for Just Security . "When the government throws a blanket of secrecy over such a fundamental question, it is clear that the public and the Congress are operating in the dark."