Sharp debate expected on electronic-intercept law

A measure granting the government expansive power to intercept electronic communications in the United States without a warrant is set to expire this month, setting up a sharp debate in the Senate over how to balance privacy against national security. 

The government uses the measure, contained in a law known as the FISA Amendments Act, to intercept e-mails and telephone calls of foreigners located overseas under a blanket approval issued once a year by a special court. But communications of U.S. citizens talking with the foreigners also are being scooped up.

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The intelligence community argues that the measure is essential to protect against foreign threats and has made renewing the law its top legislative priority. The House approved a five-year extension in September by a vote of 301 to 118. The Senate must vote by the end of the year or the authority expires.

Opposition has surfaced among a small, bipartisan group of senators worried that Americans engaged in harmless communications with foreigners could be monitored without a warrant or other privacy protections.

Under the law, a special court whose proceedings are secret issues a yearly certification that permits the government to monitor the e-mails and phone calls of foreigners if the government can satisfy the court that its procedures will target people located overseas and ensure the privacy of U.S. citizens caught in the monitoring. Targeting the communications of a U.S. citizen or anyone inside the United States requires a warrant.

One of the complaints of the senators and civil liberties advocates is that the government refuses to disclose the number of U.S. citizens and residents whose communications have been collected or reviewed under the law.

“You have this potentially large pile of communications and nobody knows how many Americans are in that pile,” Sen. Ron Wyden (D-Ore.), a member of the Senate Intelligence Committee, said in an interview.

Wyden has threatened to block a vote on reauthorization unless Senate leaders agree to a debate on changes that would add safeguards for U.S. persons.

Twelve other senators, including conservative Sen. Mike Lee (R-Utah), have joined Wyden in pushing to require the government to provide an estimate of how many communications involving U.S. citizens have been collected under Section 702 of the statute. The senators also want the government to get a court­-approved warrant before deliberately searching electronic data for individual Americans.

“The government ought not be able to search through that database for information about a U.S. citizen without a court order because that becomes akin to a warrantless wiretap,” Lee said in an interview.

The law was passed in 2008 as an update to the 1978 Foreign Intelligence Surveillance Act. It expanded the government’s power to conduct electronic surveillance on U.S. soil for foreign targets overseas without individual warrants.

The Obama administration, like the George W. Bush administration, has defended the program as vital to gathering quickly information about the plans and identities of terrorists and other threats.