The FISA Amendments Act of 2008 (FAA) — the statute the government uses to engage in warrantless surveillance of Americans’ international communications — is scheduled to expire in December 2017. In anticipation of the coming legislative debate over reauthorization, Congress has already begun to hold
hearings. While Congress must address many problems with the government’s use of this law to surveil and investigate Americans, the government’s use of “Upstream” surveillance to search Internet traffic deserves special attention. Indeed, Congress has never engaged in a meaningful public debate about Upstream surveillance — but it should.
First disclosed as part of the Snowden revelations, Upstream surveillance involves the NSA’s bulk interception and searching of Americans’ international Internet communications — including emails, chats, and web-browsing traffic — as their communications travel the spine of the Internet between sender and receiver. If you send emails to friends abroad, message family members overseas, or browse websites hosted outside of the United States, the NSA has almost certainly searched through the contents of your communications — and it has done so without a warrant.
The executive branch contends that Upstream surveillance was authorized by the FAA; however, as others have
noted, neither the text of the statute nor the legislative history support that claim. Moreover, as former Assistant Attorney General for National Security David Kris recently explained, Upstream raises “
challenging” legal questions about the su ionless searching of Americans’ Internet communications — questions that Congress must address before reauthorizing the FAA.