No one knows exactly how many Americans’ communications are being intercepted by the National Security Agency. But despite that startling knowledge gap , the House of Representatives voted 301-118 on Wednesday to renew controversial amendments contained in the Foreign Intelligence and Surveillance Act, more commonly known as the Warrantless Wiretapping Bill.
The vote was an important step toward giving the federal government five more years of broad spying powers. Particularly contentious clauses contained in FISA allow the warrantless interception of Americans’ international communications. So great is the secrecy around FISA and its application that James Clapper, the director of national intelligence, has even declined to tell a group of senators roughly how many Americans have been monitored under the law, saying it was “beyond the capacity” of the NSA to keep tabs on the numbers.
Originally enacted in 1978, FISA was amended in 2008 to allow intelligence agencies to gather what it vaguely terms “foreign intelligence information.” The law was conceived as part of a bid to detect and prevent future attacks on the United States being plotted by foreigners. However, the nature of electronic surveillance and the sketchy language used in FISA mean it can be used to gather huge quantities of communications, some of which inevitably comes from American citizens. The NSA can apply to a secret FISA court for a single surveillance order that permits the warrantless surveillance of countless individuals’ communications. This could feasibly include emails and phone calls exchanged between the United States and countries of particular foreign policy interest, such as Russia or Iran.
The 2008 amendment to FISA came after the 2005 New York Times exposé on the warrantless wiretapping program enacted by George W. Bush. In an rare candid speech in Michigan last week, former NSA Director General Michael Hayden said that the 2008 amendment retrospectively "legitimated" everything Bush had authorized the NSA to do regarding the domestic wiretapping of communications and "gave the NSA a great deal more authority to do these kinds of things." Exactly what “these kinds of things” are includes, according to Reuters’ sources, “sifting through masses of communications between foreigners that are transmitted via servers or telecommunications links that pass physically through the United States.”
Prior to Wednesday’s vote in the House of Representatives, Rep. Jan Schakowsky, D-Ill., proposed that the FISA court be made to publish unclassified summaries of its decisions. She also co-sponsored an amendment to shorten the extension of the law. However, no floor debate was allowed on either of these proposed provisions. As a result, Schakowsky later issued a fairly scathing statement in which she warned that “this legislation could negatively affect American constitutionally-protected rights to privacy, free association, and free speech.”
But the controversial FISA amendments have not been approved for another five years quite yet. The matter is now in the hands of the Senate, where it is unlikely to receive such swift passage. Sen. Ron Wyden, D-Ore., has placed a hold on the bill in an attempt to force the government to disclose details about how many Americans have been spied on. In July, Wyden was one of 12 senators who unsuccessfully requested answers about FISA from James Clapper. “We are concerned that Congress and the public do not currently have a full understanding of the impact that this law has had on the privacy of law-abiding Americans,” the senators wrote.
Whether they have the power to collectively force any kind of public disclosure remains to be seen. Not least because it’s far from clear whether the government itself has a clue how many American citizens it’s spying on.