WASHINGTON – The Privacy and Civil Liberties Board is expected to approve today a report on NSA surveillance under Section 702 of the FISA Amendments Act. The report suggests some reforms, but the American Civil Liberties Union believes the proposals are inadequate.
ACLU Deputy Legal Director Jameel Jaffer, who testified before the board about Section 702 in March, had this reaction:
“This is a weak report that fails to fully grasp the civil liberties and human rights implications of permitting the government sweeping access to the communications of innocent people. It is jarring to read this report just weeks after the House voted to limit the NSA’s ‘backdoor’ searches, and just days after the Supreme Court's cell-phone-search decision defending privacy rights in the digital age. The Supreme Court, Congress, and the American people have recognized the need for fundamental reform. It is disappointing that the board’s report does not.”
With the Office of the Federal Public Defender in Denver, the ACLU is currently litigating a challenge to the FAA’s constitutionality on behalf of the first criminal defendant to be notified that he was surveilled under the law. In the case, Jamshid Muhtorov has filed a motion to suppress evidence produced by the NSA spying, and the court is expected to schedule oral argument later this summer. In another case in Portland last Thursday, U.S. v. Mohamud, the district court denied a similar challenge.
The government cites Section 702 as authorization for its so-called “warrantless wiretapping program,” which entails the dragnet surveillance of phone calls and emails in and out of the United States. The emails and other online communications are collected under the PRISM program directly from internet companies, and under the UPSTREAM program directly from the “internet backbone” run by telecommunications companies.
The ACLU’s previous challenge to the FAA, Amnesty v. Clapper, was dismissed by the Supreme Court in March 2013 on the grounds that the plaintiffs could not prove that they had been monitored.