In Advance of Senate Intelligence Committee Markup, Sens. Wyden and Paul Introduce Bill to Reform Section 702 of FISA

October 24, 2017

This morning, Sens. Ron Wyden (D-Ore.) and Rand Paul (R-Ky.) introduced the “USA RIGHTS Act,,” a bill that would reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA) with several changes to better protect Americans’ privacy. The bill contains the most sweeping and significant reforms of any of the Section 702 reauthorization bills currently pending in Congress. It was introduced just hours before the Senate intelligence committee, on which Senator Wyden serves, is scheduled to mark up Sen. Richard Burr’s (R-N.C.) less reform-minded bill.
 
Section 702 was enacted in 2008 to allow the government to obtain the communications of foreign targets located overseas without obtaining a warrant, even if the targets are communicating with Americans or the communications are stored in the United States. In the past year, lawmakers from both parties have expressed concerns that the warrantless surveillance sweeps in a potentially massive amount of Americans’ communications with insufficient restrictions on how that data is handled. The law will expire at the end of December unless Congress reauthorizes it.
 
The USA RIGHTS Act goes much further than the USA Liberty Act, a reform bill introduced by a bipartisan group of House Judiciary Committee members earlier this month. Most notably, the Wyden/Paul bill would require government officials to obtain a warrant before querying Section 702 data for Americans’ communications. The House bill, by contrast, would allow warrantless access to Americans’ communications if government officials sought to obtain “foreign intelligence information,” while the draft bill reportedly circulated by Senator Burr yesterday would allow warrantless access to continue in all cases. 
 
“The USA RIGHTS Act is a welcome alternative to other, less ambitious reform proposals that we’ve seen,” said Elizabeth Goitein, co-director of the Brennan Center’s Liberty and National Security Program. “Unlike other bills, this one would fully close the backdoor search loophole by requiring government officials to obtain a warrant any time they want to search Section 702 data for Americans’ communications. This would put a stop to the shameful practice of using backdoor searches as an end-run around the Fourth Amendment.”
 
“The bill would also restrict the uses of Section 702 communications to the purpose for which the data was collected in the first place: protecting the United States against foreign threats to our security. And it would make sure the government does not avoid its legal obligation to notify defendants in criminal cases when using evidence derived from Section 702 surveillance.
 
“The bill does not solve every problem with Section 702. It contains no provision, for instance, to narrow the pool of permissible targets to foreigners who might reasonably have information about a threat to the United States. Because the government currently can target almost any foreigner overseas, it could be sweeping in millions of everyday conversations between Americans and their friends, relatives, and business associates. Those communications sit in government databases where they are vulnerable to hacking, data theft, negligent mishandling, or even abuse.
 
“Nonetheless, the bill takes critical and significant steps in the right direction. It provides an excellent starting point on which to build reform efforts. We commend Senators Wyden and Paul for demonstrating that it is possible to support both liberty and security in the Section 702 debate. We hope other committee members will hear the message and support amendments to bring about meaningful reforms, including a warrant requirement to access Americans’ communications.”    
 
Elizabeth Goitein is available for comment on the Wyden-Paul bill, and the markup of Sen. Burr’s legislation. For more information or to schedule an interview, contact Naren Daniel at (646) 292-8381 or naren.daniel@nyu.edu.
 
Read more about the Brennan Center’s work on Liberty & National Security.
 

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