Government Use of Surveillance Tools Draws Fire at Forum (1)

June 25, 2020, 3:58 PM; Updated: June 25, 2020, 7:11 PM

Procedural issues around foreign intelligence gathering may impinge on people’s civil liberties, national security policy analysts and former officials told a U.S. government board.

The Privacy and Civil Liberties Oversight Board (PCLOB) heard from panelists at a forum on how the government uses authorities under the Foreign Intelligence Surveillance Act’s (FISA), and proposed changes. The PCLOB, an executive branch body, advises the president on privacy and oversees U.S. surveillance activities.

The Wednesday forum followed a recent Department of Justice Inspector General memorandum on frequent FISA application errors by the FBI.

FISA, initially passed in 1978, grew out of congressional investigations into foreign surveillance activities conducted in the name of national security. The law sets out procedures for physical and electronic surveillance and collection of foreign intelligence information. At first, FISA covered only electronic surveillance but has since been amended to address such areas as the use of pen registers and trap and trace devices, physical searches, and business records.

The inspector general found errors in the FBI’s factual accuracy review methods, known as Woods Procedures, in FISA applications, and in counterintelligence and counterterrorism probes. Mistakes ranged from being unable to locate Woods files; instances of unsupported facts; lack of documentary support; and inaccuracies across multiple FISA applications, according to the memorandum.

Mary McCord, a former acting assistant attorney general for national security, said the OIG’s report and subsequent audit was the “FISA Brady moment,” referring to the landmark 1963 Supreme Court case Brady v. Maryland, which established that a prosecutor must turn over any potentially exonerating evidence to the defense.

McCord used the term to describe information that was excluded from FISA applications, and noncompliance with Woods Procedures.

“The FBI continues to work with all of our relevant oversight entities,” the bureau said in an email. In an earlier response to the inspector general’s memorandum, an FBI official said the bureau was focused on ensuring its FISA authorities “are exercised with objectivity and integrity.”

Panelists at the forum reviewed the framework and history of FISA, from its original intention to its current implementation.

“There were serious concerns that were highlighted by what the IG has found in his two works,” Kenneth Wainstein, a former Homeland Security advisor for President George W. Bush, said at the forum.

Elizabeth Goitein, co-director of the liberty and national security program at New York University Law School’s Brennan Center for Justice, said advances in technology and law have rendered the original idea and usage of FISA “entirely inadequate” to protect the privacy of Americans.

“In fact the legal framework for foreign intelligence collection has been a rich source of warrantless access to Americans’ communications and other highly sensitive personal information,” Goitein said. “There is an urgent need to rethink the entire FISA framework.”

Goitein called on the PCLOB, a bipartisan board responsible for ensuring the federal government’s anti-terrorism efforts respect privacy and civil liberties, to lay the groundwork for a new law.

(Updated with FBI comment in eighth paragraph)

To contact the reporter on this story: Julia Weng in Washington at jweng@bloombergindustry.com

To contact the editors responsible for this story: Melissa B. Robinson at mrobinson@bloomberglaw.com, Keith Perine at kperine@bloomberglaw.com

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