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Press Release

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

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.

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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