The recent unauthorized disclosures of classified intelligence collection activities has generated renewed debate about balancing our responsibility to protect Americans from harm and the need to protect Americans’ privacy and civil liberties. Striking the right balance has been a long-standing priority for Democrats. In fact, Democrats insisted upon the protections in current law related to the government’s collection of information pursuant to the Patriot Act and Foreign Intelligence Surveillance Act (FISA).
Democrats have highlighted the importance of the statutorily-independent Privacy and Civil Liberties Oversight Board to assess the impact of the government’s collection activities on the privacy and civil liberties of Americans. The Board should contribute to informed debate as Congress considers new amendments to the laws governing collection activities. Recommended by the 9/11 Commission, the Privacy and Civil Liberties Oversight Board was established in the Intelligence Reform and Terrorism Prevention Act of 2004. It became a statutorily independent agency and received enhanced authorities in H.R. 1, Implementing the Recommendations of the 9/11 Commission Act of 2007, the first bill passed by the Democratic 110th Congress.
The passage of the FISA Amendments Act of 2008 (P.L. 110-261) followed a series of events. These included the December 2005 disclosure of President Bush’s Warrantless Surveillance Program (“PSP” or “TSP”); the Bush Administration’s rejection of the Democratic House passed RESTORE Act of 2007 (a bill tailored to address the security needs, and provide significant privacy and civil liberties protections); and the passage of the short-term Bush Administration’s so-called Protect America Act of 2007 (P.L. 110-55).
A comparison of the President Bush’s Warrantless Surveillance Program, the Bush Administration’s Protect America Act of 2007, and the FISA Amendments Act of 2008 can be found here. Congressional Democrats were able to include significant privacy and civil liberties protections that enhanced accountability, transparency and checks on government collection activities in the FISA Amendments Act of 2008.
The first of the recent leaks in the Guardian involved the unauthorized disclosure of a classified FISA Court order that directed a telecommunications service provider to produce call metadata records to the National Security Agency (NSA). Section 215 of the Patriot Act which allows the government to collect “business records” pursuant to a FISA Court order. Expiring provisions of the Patriot Act, including Section 215, were reauthorized by Congress in May 2011 (P.L. 112-14). The Director of National Intelligence (DNI) has declassified some details related to Section 215 business records collection activities and described them in detail here.
A second unauthorized disclosure of classified documents regarding the PRISM computer collection system was featured in the Washington Post. The PRISM computer collection activity is done pursuant to Section 702 of FISA that allows the government to target the communications of non-US persons who are located outside the US. Section 702 is part of the FISA Amendments Act of 2008 which was reauthorized by Congress in December 2012. A DNI factsheet regarding Section 702 collection is available here.