Tomorrow morning, Representatives Bob Goodlatte (R-Va.) and John Conyers (D-Mich.), the chair and ranking member of the House Judiciary Committee, and Jim Sensenbrenner (R-Wis.) and Sheila Jackson Lee (D-Tex.), chair and ranking member of the Crime, Terrorism, Homeland Security, and Investigations Subcommittee, will hold a press conference to unveil the “USA Liberty Act”—a bill that would reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA) with several changes intended to better protect Americans’ privacy. A discussion draft of the bill was made public this afternoon.
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 Liberty Act’s primary reform is an effort to address the so-called “backdoor search loophole” by requiring U.S. officials to obtain a warrant before accessing the content of Americans’ communications in criminal cases, unless the government’s primary purpose was to obtain foreign intelligence information. The bill would also codify the end of so-called “about” collection—the collection of communications, including purely domestic ones, that merely mention a target’s e-mail address or other information about him—until 2023. NSA recently halted this practice for technological reasons but has suggested that it wishes to restart it in the future.
The following comments can be attributed to Elizabeth Goitein, co-director of the Brennan Center’s Liberty and National Security Program:
“Bipartisan efforts in Congress today are rare, and bipartisan efforts to ensure that intelligence activities respect Americans’ civil liberties are even rarer. The existence of this bipartisan legislation is a sign of how deep the concerns are about Section 702 and its impact on Americans. The bill’s sponsors are to be commended for working together to tackle this problem.
“The bill nudges the law in the right direction, but unfortunately, it does not go nearly far enough. The bill’s fix for the backdoor search loophole includes its own giant loophole: an exception for foreign intelligence searches. The law’s definition of foreign intelligence is so broad, a foreign intelligence exception could easily swallow the rule. If the FBI is investigating someone who happens to be an American Muslim or an immigrant, it will be far too easy for agents to say that the purpose of their search is to rule out foreign ties.
“If the government wants to target an American for surveillance in a foreign intelligence investigation, FISA requires the government to get a warrant. There’s no exception on the front end, so there should be none on the back end either. Our government should not be reading Americans’ e-mails or listening to their phone calls without a warrant, period.
“The bill also contains no provision to reduce the impact of foreign intelligence surveillance on Americans by narrowing the pool of permissible targets. Right now, the NSA can target any foreigner overseas, even ordinary private citizens not suspected of posing any threat. The lax standard for collection makes it possible for the NSA to sweep in millions of conversations between law-abiding Americans and their friends, relatives, and business partners in other countries. The targets of NSA surveillance should be limited to agents of foreign powers, suspected terrorists, or people who might have information about a security threat.
“We hope that there will be an opportunity to rectify these critical shortcomings as the bill moves forward. This law is too important, and its impact on Americans’ privacy and liberty too great, to cut corners on needed reforms.”
For more on reforming Section 702, please see the Brennan Center’s analysis here. For other Section 702 resources, please see our foreign intelligence surveillance resource page.
Read more about the Brennan Center’s work on Liberty & National Security.
For more information or to speak with an expert, contact Naren Daniel at (646) 292-8381 or firstname.lastname@example.org.