Some limits on warrantless wiretaps but loopholes remain
President Barack Obama and Congress changed the Foreign Intelligence Surveillance Act, which oversees all manner of counter espionage eavesdropping, when he signed the USA Freedom Act on June 2, 2015.
Under the new law, the National Security Agency must be more specific in its request to the Foreign Intelligence Surveillance court to collect information. The change ended the practice of bulk collection of metadata -- information on the time and duration of a call. In its place, the NSA must make the case that it has reasonable suspicions that a "search term," such as a name, telephone number, address or communication device, is tied to terrorism.
The new law contains other features. The Foreign Intelligence Surveillance Court can bring in an outsider to serve as a public advocate when new sorts of intelligence issues crop up, plus there are some additional opportunities to appeal decisions by the court. On the transparency front, the court must issue a public report when it decides on new technical or legal matters.
All of this qualifies as providing more oversight on government surveillance, but privacy experts and advocates caution against assuming that everything is fine and dandy.
Neema Guliani at the American Civil Liberties Union characterizes the oversight as "better than the dismal status quo," but hardly ironclad.
"There's a question whether the government is giving the judges all the information they need to make a decision," Guliani told us. "And it seems unclear what the government sees as its notification responsibilities. If you don't provide notice and information, it become difficult to determine if the judges are performing their oversight function."
Shayana Kadidal, senior managing attorney at the Center for Constitutional Rights, wrote that metadata -- information on the time and duration of a call -- might not be as protected as people think.
"There are many other ways in which the government could be sweeping in the same records," Kadidal wrote. "In part, that is because metadata isn't protected by the warrant requirement the same way the content of your phone calls is."
Kadidal said the government might be able to get what it wants through a more easily obtained subpoena.
To be sure, the advocates say the new law is better than the Patriot Act, but they see loopholes.
Obama promised to change the Foreign Intelligence Surveillance Act to limit warrantless wiretaps and provide more oversight and accountability. Critics say the new rules are better than what was in place before, but they are not full-proof. The government still has access to significant amounts of metadata. We rate this Compromise.
Electronic Frontier Foundation, The New USA Freedom Act: A Step in the Right Direction, but More Must Be Done, April 30, 2015
U.S. Congress, USA Freedom Act, June 2, 2015
Huffington Post, Surveillance After the USA Freedom Act: How Much Has Changed?, Dec. 17, 2015
No oversight included in Patriot Act renewal
On May 26, 2011 President Barack Obama signed a bill that reauthorized key elements of the Patriot Act. The bill called for a four-year renewal of some of the most controversial provisions of the surveillance legislation. While the bulk of the Patriot Act is steadfast law, there are certain measures that Congress must periodically reauthorize or else they expire. Among them is roving wiretaps, i.e., the ability of law enforcement officials to track targets if they change phones without law enforcement first consulting a judge.
The Patriot Act, passed shortly after the September 11, 2001 attacks, granted law enforcement increased surveillance powers to prevent additional terrorist incidents. Since its conception, the Patriot Act has been mired in controversy. Civil rights advocates argue that the law is a violation of Americans' privacy rights. Key members of Congress, including both liberal Democrats and Tea Party Republicans, have attempted to amend the Patriot Act in order to protect Americans from potential privacy rights violations.
The expiring provisions of the act came up for re-authorization in late 2009. Despite months of congressional debate and a delayed vote, President Obama ended up signing a re-authorization that included no changes in early 2010.
This year-long extension came up for renewal again in early 2011. In this year's re-authorization battle, Senate Judiciary Committee Chairman Sen. Patrick Leahy, D-Vt., and Sen. Rand Paul, R-Ky., sponsored an amendment that would have increased congressional oversight of these renewed provisions. Yet the Leahy-Paul Amendment was never brought to a full vote. Ultimately the Patriot Act was reauthorized without any sort of additional oversight included in the final language. By reauthorizing the Patriot Act, President Obama guaranteed (barring any judicial action) that the law will live on in its current form until June 1, 2015.
"The extension of the Patriot Act provisions does not include a single improvement or reform, and includes not even a word that recognises the importance of protecting the civil liberties and constitutional privacy rights of Americans,” said Sen. Leahy.
Michelle Richardson, legislative council at the American Civil Liberties Union, said the Patriot Act has not changed since President Obama took office.
The conservative Heritage Foundation, which expressed support of the Patriot Act in its current form, agreed that there have been few changes since its implementation. "President Obama probably did revisit the PATRIOT Act when he became president and realized that it was extremely helpful to investigators and already contained the needed oversight to ensure that is was used in way that was consistent with the law and U.S. Constitution,” said Jena McNeill, Senior Policy Analyst of Homeland Security at the Heritage Foundation in an e-mail interview.
But the ACLU's Richardson noted that while there have been no additional legislative oversight measures passed during Obama's presidency, there have been some put in place in the executive branch. Most notably, the Justice Department decided to implement several measures that were originally included in the USA PATRIOT Act Sunset Extension Act of 2009 - a failed oversight bill proposed by Sen. Leahy.
In response to a letter from Leahy in December 2010, the Justice Department said it had:
- Implemented a requirement that, when library or bookseller records are sought via a Section 215 order for business records, a statement of specific and articulable facts showing relevance to an authorized investigation must be produced;
- Adopted a policy requiring the FBI to retain a statement of facts showing that the information sought through a National Security Letter (NSL) is relevant to an authorized investigation, to facilitate better auditing and accountability;
- Adopted procedures to provide notification to recipients of NSLs of their opportunity to contest any nondisclosure requirement attached to the NSL;
- Agreed to ensure that NSL recipients who challenge nondisclosure orders are notified by the FBI when compliance with such nondisclosure orders are no longer required;
- Adopted procedures for the collection, use and storage of information derived from National Security Letters, which were approved by Attorney General Holder on October 1, 2010.
Leahy also said that DOJ had agreed to work with Congress to determine ways to make additional information publicly available regarding the use of FISA authorities.
"I still believe that these important oversight and accountability provisions should be enacted in law, but I appreciate that by implementing key measures in the bill, the Department of Justice has embraced the need for oversight and transparency," Leahy said in response to the Justice Department's action.
Where does that leave us? President Obama has spoken in the past in favor of more oversight and Attorney General Eric Holder supported the USA PATRIOT Act Sunset Extension Act of 2009. Nonetheless, the president signed a reauthorization that included no additional oversight. However, the DOJ has implemented key components of Sen. Leahy's bill. Whether this decision qualifies as "robust oversight” is in the eye of the beholder. Without legislative action, this oversight can go away with a change in administration. Nevertheless, because of these executive actions, we rate this promise as Compromise.
Text of Leahy-Paul Amendment -- 112th Congress
Senator Patrick Leahy, press release, May 23, 2011
Senator Patrick Leahy, press release, May 26, 2011.
Senator Rand Paul, press release, May 23, 2011.
CNN, "Obama approves extension of expiring Patriot Act provisions,” May 27, 2011.
USA Today, "Key Patriot Act elements up for vote,” May 26, 2011.
Wired, "House Delays Patriot Act Spy Vote,” December 19, 2009.
The Christian Science Monitor, "Obama signs Patriot Act extension without reforms,” March 1, 2010.
POLITICO, "Patriot Act clears House, Senate,” May 26, 2011.
The Guardian, "Patriot Act surveillance provisions extended in nick of time,” May 27, 2011.
Sen. Patrick Leahy, press release, December, 9, 2010.
E-mail interview with Michelle Richardson, legislative council at the ACLU.
E-mail interview with Jena McNeill, Senior Policy Analyst of Homeland Security at The Heritage Foundation.
One-year extension of Patriot Act doesn't include any changes
The last time we visited President Barack Obama's Promise 180, civil liberties advocates and intelligence experts predicted big changes would be made to the Patriot Act to give Congress more oversight over warrantless wiretaps.
No go, apparently.
Last fall, civil liberties groups were hopeful about two bills that included new, additional oversight.
One, by Senate Judiciary Committee Chairman Patrick Leahy, would have reauthorzied three expiring provisions of the Patriot Act with new reporting requirements and oversight authority. It would also have phased out the government's use of national security letters, documents used by the government to demand businesses or organizations turn over information about individuals.
Meanwhile, the House Judiciary Committee approved a bill that would have reauthorized a provision that allows the government to maintain wiretaps even if a suspect changes phone numbers or providers, but would have let another expiring provision lapse -- one that permits the government to track suspects that are not affiliated with any group or foreign country. The House bill also phased out the national letters program and modified the government's authority to conduct "sneak and peek" searches, those done in secret that require no prior notice.
But instead, back in February, Congress passed a one-year extension of three expiring provisions of the Patriot Act without changes. They include: a provision that would permit the government to seize, through court order, "any tangible things" deemed relevant in a terrorism inquiry; a provision that allows the government to establish "roving" wiretaps on suspects who switch phone numbers or providers; and a provision that gives the government authority to seek a court-ordered wiretap of "lone wolf" terrorism targets -- suspects that are not connected to a particular group or foreign nation.
Indeed, the Obama administration sent a letter to Congress in September 2009 urging renewal of the three expiring powers, but did not outline specifics to bolster oversight. In fact, the letter praised current oversight procedures as having worked well.
Civil liberties groups say the extension precludes further action on the issue this year. As a result, we're moving this promise to Stalled.
Politico, Senate votes to renew Patriot Act, by Jake Sherman, Feb. 24, 2010
Congressional Quarterly, House Sends One-Year Extension of Three Anti-Terrorism Provisions to Obama, by Emily Ethridge, Feb. 25, 2010
The Christian Science Monitor, Obama signs Patriot Act extension without reforms, by Michael B. Farrell, March 1, 2010
Department of Justice letter to Sen. Patrick Leahy, Sept. 14, 2009
The American Civil Liberties Union, letter to members of Congress, Feb. 25, 2010
The American Civil Liberties Union, Congress Drops the Ball on Upgrading Patriot Protections, Feb. 26, 2010
Congressional Quarterly, New Extension Likely for Key Patriot Act Provisions, by Keith Perine, Feb. 11, 2010
The American Civil Liberties Union, Breakdown of HR 3845, The USA Patriot Amendments Act of 2009, accessed March 16, 2010
Congress pushes FISA oversight, but administration is noncommittal
The Obama administration's approach to wiretapping foreign terrorism suspects -- an issue that crystallized Bush administration overreach for many Democrats -- continues to frustrate civil libertarians and other critics.
The public first learned about warrantless wiretaps in 2005 thanks to coverage in the New York Times . The stories focused on the National Security Agency, which monitors foreign communications and intelligence. The newspaper revealed that the agency was monitoring phone and e-mail conversations of people in the United States who were communicating with people in other countries. This type of monitoring required a warrant, but President George W. Bush authorized it without warrants.
The Bush administration insisted that the program was legal, although many people, particularly civil libertarians, disagreed. In 2008, Congress passed a law that updated the Foreign Intelligence Surveillance Act to give the administration the legal authority to do what it was already doing. The law also included retroactive immunity for telecommunications companies that had allowed the government to tap into networks, so that their customers couldn't sue for privacy violations. (Obama, then a senator, voted in favor of this bill, a move PolitiFact considers a flip-flop because he had previously said he would filibuster any law that called for telecom company immunity.)
The promise we're rating here is framed quite narrowly. It does not address such contentious questions as what types of surveillance should be permissible or whether to reverse the decision to give the telecom companies immunity, as some lawmakers and activists would like to do. Rather, Obama, in his promise, focused specifically on increasing the role for congressional oversight to make sure that FISA-related activities are conducted in a legal and appropriate manner.
"As president," the promise said, "Obama would update the Foreign Intelligence Surveillance Act to provide greater oversight and accountability to the congressional intelligence committees to prevent future threats to the rule of law."
Experts we spoke to agreed that the most likely avenue for this proposed change is a bill that would renew three expiring provisions of the USA Patriot Act. These include the government's right to establish a "roving wiretap" that allows intelligence officials to track a target who switches phone numbers or providers without having to get a new warrant; the government's right to secure a court order to seize "any tangible things" deemed relevant in the course of a terrorism inquiry; and the government's right to seek a court-ordered wiretap of a terrorism target unconnected to a known terrorist group or a foreign nation.
Several lawmakers have proposed bills addressing these renewals, and most of them include additional sections aimed at the specific topic of Obama's promise, expanding congressional oversight. Typically, these oversight provisions require the Justice Department's inspector general to issue periodic reports to the House and Senate intelligence committees auditing certain types of FISA-related activities, and to keep the committees apprised of efforts to ensure that surveillance is limited to legitimate targets only. The bills with some form of oversight provisions include measures sponsored by Senate Judiciary Chairman Patrick Leahy, D-Vt., and Senate Intelligence Chairwoman Dianne Feinstein, D-Calif.; by House Judiciary Chairman John Conyers, D-Mich.; by Sen. Russ Feingold, D-Wis., a leading critic of FISA overreach; and by Rep. Silvestre Reyes, D-Texas.
But while lawmakers have provided bills that would boost congressional oversight, the administration has been silent about its position on those provisions.
In a Sept. 14, 2009, letter to Leahy, Ronald Weich, the administration's assistant attorney general for legislative affairs, urged renewal of the three expiring Patriot Act powers but did not offer any specific ideas for bolstering oversight. In fact, twice in the letter Weich praised current oversight procedures as having worked well.
The furthest Weich went was to open the door to considering increased oversight. He wrote that the administration is "aware that Members of Congress may propose modifications to provide additional protection for the privacy of law-abiding Americans. As President Obama said in his speech at the National Archives on May 21, 2009, 'We are indeed at war with al-Qaida and its affiliates. We do need to update our institutions to deal with this threat. But we must do so with an abiding confidence in the rule of law and due process; in checks and balances and accountability.' Therefore, the Administration is willing to consider such ideas, provided that they do not undermine the effectiveness of these important authorities."
When rating promises, we have typically labeled a promise In the Works as long as one or more bills to carry it out are pending in Congress. That is certainly the case with this promise. But given the administration's noncommittal stance on heightening oversight of FISA-related activities, we'll keep watching this issue as the congressional debate moves forward to see whether this promise merits a shift to Compromise, Stalled, or Promise Broken. For now, though, we'll label this promise In the Works.
Ronald Weich (assistant attorney general for legislative affairs), letter to Sen. Patrick Leahy, Sept. 14, 2009
THOMAS, bill index page for S. 1692 (Leahy-Feinstein bill)
THOMAS, bill index page for, H.R. 3845 (Conyers bill)
THOMAS, bill index page for H.R. 3969 (Reyes bill)
THOMAS, bill index page for S. 1686 (Feingold bill)
New York Times , " Battle Looms Over the Patriot Act ," Sept. 19, 2009
E-mail interview with William C. Banks, law professor at Syracuse University, Nov. 23, 2009
E-mail interview with Kevin Bankston, Electronic Frontier Foundation senior staff attorney, Nov. 23, 2009
Warrantless wiretaps back in the news
President Barack Obama's promise to end warrantless wiretaps will be one of the most difficult for us to independently verify. After all, the government doesn't like to announce when it is secretly tapping phones. Nevertheless, we've noticed a few developments on this issue that we want to document.
The public first learned about warrantless wiretaps in 2005 thanks to coverage in the New York Times . The stories focused on the National Security Agency, which monitors foreign communications and intelligence. The New York Times revealed that the agency was monitoring phone and e-mail conversations of people in the United States who were communicating with people in other countries. This type of monitoring required a warrant, but President George W. Bush authorized it without warrants.
The Bush administration insisted the program was legal, though many people, particularly civil libertarians, disagreed. In 2008, Congress passed a law giving the administration the legal authority to do what it was doing anyway, and the law included retroactive immunity for telecommunications companies that had allowed the government to tap into into networks, so their customers couldn't sue them for privacy violations. Obama, then a senator, voted in favor of this bill, a move we ruled was a flip-flop because he previously said he would filibuster any law that called for telecom immunity.
The warrantless wiretapping program came back into the news this week when the New York Times reported that the National Security Agency was still monitoring Americans, but violating the terms of the new authority it got from Congress in 2008.
"Several intelligence officials, as well as lawyers briefed about the matter, said the NSA had been engaged in 'overcollection' of domestic communications of Americans. They described the practice as significant and systemic, although one official said it was believed to have been unintentional," the April 15 story said. Read the whole story here .
The New York Times relied on anonymous sources because the sources were discussing classified information. We don't use anonymous sources at PolitiFact, but we're citing the New York Times work here because no officials have contradicted their reports and because the newspaper's previous reporting on the matter has proved correct.
The story also said that Attorney General Eric Holder "went to the national security court to seek a renewal of the surveillance program only after new safeguards were put in place."
Responding to the New York Times ' reporting, Sen. Dianne Feinstein, the California Democrat who chairs the Senate Intelligence Committee, said she would hold a hearing on the matter within a month.
Sen. Russ Feingold, D-Wis., and a member of the committee, said new laws were needed to address warrantless wiretapping.
"Congress must get to work fixing these laws that have eroded the privacy and civil liberties of law-abiding citizens," he said.
Obama's promise indicates he would support revisiting the laws governing surveillance, and we'll be monitoring this issue to see what happens next. Right now, we feel it's too early to make a ruling, so we leave the Obameter at No Action.
New York Times, Officials say U.S. wiretaps exceeded the law , April 15, 2009
New York Times, 2005 stories on warrantless wiretapping , via The Pulitzer Prizes Web site
Sen. Dianne Feinstein, Statement of Senator Feinstein on NSA Wiretapping Report , April 16, 2009
Sen. Russ Feingold, Statement of U.S. Senator Russ Feingold Reacting to Reports of Wiretapping Abuses at the NSA , April 16, 2009
U.S. Senate Roll Call, Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 , July 9, 2008
PolitiFact.com, Obama flip-flopped on warrantless wiretapping , July 18, 2008
BarackObama.com, Response from Barack Obama on FISA and Discussion with Policy Staff , July 3, 2008
Thomas, Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 , became public law July 10, 2008