ACLU Sues CIA, DOJ, and NSA for Records About Warrantless Spying on Americans

The legal group argues that information about the surveillance program “is key as Congress considers reauthorizing Section 702—the law used to defend this unconstitutional spying.”

By Jessica Corbett  Published 2-3-2023 by Common Dreams

Director of National Intelligence Avril Haines testifies before the Senate Intelligence Committee Screenshot: C-SPAN

The ACLU on Friday filed a federal lawsuit against top U.S. intelligence agencies that have failed to respond to public records requests for information about a “sweeping law that authorizes the warrantless surveillance of international communications,” including those of Americans.

The suit, filed in the U.S. District Court for the Southern District of New York, targets the Central Intelligence Agency (CIA), Department of Justice (DOJ), National Security Agency (NSA), and Office of the Director of National Intelligence (DNI).

In December, the ACLU requested “recent Foreign Intelligence Surveillance Court (FISC) opinions concerning the government’s surveillance activities, including those conducted pursuant to Section 702 of the Foreign Intelligence Surveillance Act (FISA).”

According to the ACLU’s complaint, which was first reported on by Axios, “to date, none of these defendant agencies has released any responsive records,” despite their legal obligation to respond to such requests within 20 working days.

“Though Section 702 is justified as a counterterrorism tool, in reality it permits surveillance far beyond what is needed to protect national security,” the ACLU explains on its website. It continues:

It allows the government to target foreigners abroad if it believes they possess “foreign intelligence information”—a term so broadly defined that it can include ordinary information about foreign affairs that has nothing to do with national security. This means that targets of surveillance could include human rights defenders, journalists, whistleblowers, or business owners. The government collects the personal information of these individuals—including any communications they may have with people in the U.S.—and stores it in databases for years, and in some cases, indefinitely.

With Section 702 set to expire at the end of the year, the complaint explains, Congress in the coming months “will consider whether to reauthorize these surveillance powers and will newly examine the breadth and intrusiveness of the digital searches the government conducts under this authority.”

“In 2021, the FISC took the unusual step of extending its review of the government’s annual Section 702 application, in order to consider novel or significant issues raised by the proposed surveillance,” the document notes. “But the government has not released the court opinions that resulted from that review, even though they bear directly on the public’s understanding of the surveillance powers the government seeks to wield under Section 702.”

“Timely disclosure of these FISC opinions is vitally necessary to an informed debate about whether these surveillance powers should be reauthorized or reformed,” the filing argues.

Echoing that argument, Patrick Toomey, deputy project director for the ACLU’s National Security Project, told Axios that “these opinions are essential to an informed public debate, and the government should release them immediately.”

Toomey took aim at the Federal Bureau of Investigation, which falls under the DOJ. He said that “Section 702 has morphed into a domestic surveillance tool for the FBI.”

Axios pointed out that the ODNI “disclosed in an annual report in April that the FBI conducted as many as 3.4 million searches of Americans’ data in 2021 that was previously collected through 702.”

Toomey asserted that “before Congress votes on reauthorizing this law, Americans should know how the government wants to use these sweeping spying powers.”

This work is licensed under Creative Commons (CC BY-NC-ND 3.0).

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