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.

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The NSA is searching Americans’ international communications for what it calls “selectors.” Selectors are, in essence, keywords. Under the FAA, they are typically email addresses, phone numbers, or other identifiers associated with the government’s targets. While this might sound like a narrow category, the reality is much different, as Jennifer Granick and Jadzia Butler recently explained. That’s because the NSA can target any foreigner located outside the United States who is believed to possess “foreign intelligence information” — including journalists, human rights researchers, and attorneys, not just suspected terrorists or foreign spies. At last count, the NSA was targeting more than 94,000 people, organizations, and groups under the FAA.

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