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Congress Can’t Compromise on Privacy

In a well-intentioned effort to preempt opposition by surveillance hardliners, the USA Liberty Act adopts an approach that could paradoxically make Americans more vulnerable to surveillance in the future.

November 7, 2017

Cross-posted at U.S. News & World Report.

With the understandable focus on the will-they-or-won’t-they of congressional tax reform, one of the most important tasks facing Congress before year’s end has garnered little national attention: reauthorization of the law that governs foreign intelligence surveillance on U.S. soil. Although surveillance under this law is nominally targeted at foreigners, it sweeps in Americans’ communications as a matter of course. Intelligence and law enforcement officials have been exploiting this “incidental” collection to access Americans’ calls and e-mails without obtaining a warrant. There is a growing sense in Congress that changes are needed to better protect Americans’ privacy.

One of the leading reform proposals is the USA Liberty Act, a bill introduced by a bipartisan group of House Judiciary Committee members that will be marked up in committee this week. But in a well-intentioned effort to preempt opposition by surveillance hardliners, the bill’s sponsors have adopted an approach that could paradoxically make Americans more vulnerable to surveillance in the future.

To understand where the proposal goes wrong, some background is necessary. Section 702 of the Foreign Intelligence Surveillance Act (FISA) allows the government to collect the communications of foreigners overseas without a warrant, even when they are communicating with Americans. Because the government would ordinarily need a warrant to obtain an American’s calls or e-mails, it must certify that its interest lies only in the foreign targets, and not in the Americans on the other end of the line. Officials describe the acquisition of Americans’ conversations as inevitable but “incidental,” and Section 702 requires the government to minimize their retention and use.

Since the law was last reauthorized in 2012, however, lawmakers and the public have learned about a practice known as “back door searches.”  Four agencies—the NSA, the CIA, the FBI, and the National Counterterrorism Center—allow their officials to sift through communications collected under Section 702 in search of Americans’ calls and e-mails. They can conduct these searches without any evidence of wrongdoing, let alone probable cause and a warrant.    

Many lawmakers from both parties are rightly concerned that this practice creates an end run around Americans’ constitutional protections, and are supporting legislation that would require agency officials to obtain a warrant before accessing Americans’ communications collected under Section 702. Even longtime supporters of robust surveillance authorities, such as Senator Dianne Feinstein, are backing this approach.

Some members in key positions, however, are likely to fight reform efforts. In a preemptive effort to soften their opposition, members of the House Judiciary Committee are attempting to split the baby. The USA Liberty Act, cosponsored by the committee’s chair (Bob Goodlatte) and ranking member (John Conyers), would require a warrant to access the content of Americans’ calls and e-mails, unless the purpose of doing so was to obtain “foreign intelligence.” In such cases, agencies could continue to search for and read Americans’ communications without judicial review or evidence of misconduct.

Civil liberties groups have pointed out that this exception could swallow the rule. “Foreign intelligence” is not limited to matters of terrorism, espionage, or the like. It is defined extremely broadly under FISA to encompass information about “the conduct of the foreign affairs of the United States.” In theory, that could include everyday conversations about current events. It would be far too easy for an FBI agent seeking information about an immigrant or a Muslim American, for instance, to posit a “foreign intelligence” purpose.

But the problem with the USA Liberty Act’s solution is not simply that it does not go far enough. In two key respects, it actually represents a step backward.

First, it would put Congress’s stamp of approval on backdoor searches. As it stands, Section 702 does not expressly authorize agencies to search for Americans’ communications. Indeed, the practice seems inconsistent with the law’s prohibition on targeting Americans, not to mention its requirement that the government minimize the retention and use of Americans’ communications. By codifying backdoor searches for foreign intelligence purposes, the USA Liberty Act would make the law worse, even if it improved on the government’s actual practice.

Even more worrisome, the USA Liberty approach would introduce a new and dangerous principle into the law: the notion that Americans have lesser rights when the government is acting with a “foreign intelligence” purpose. Currently, if the government wants to target an American directly for surveillance, it must obtain a warrant regardless of its motive. In criminal cases, the government typically obtains the warrant from a magistrate judge, while in foreign intelligence investigations, it applies to a special court known as the FISA Court. In both cases, however, the government must show probable cause of illicit activity. 

There is no principled basis for lowering the standard of protection in foreign intelligence cases and allowing the government to access through the back door what it could not obtain through the front. Americans’ reasonable expectation of privacy in their phone calls and e-mails does not depend on the government’s reason for wanting to eavesdrop. Nor does the presumption that Americans are innocent until proven guilty apply with less force when the government suspects foreign ties.

A rule that discounts Americans’ rights in the foreign intelligence context would set an ominous precedent for future legislative and administrative action. If no judicial review is required for the FBI to read Americans’ e-mails when it seeks foreign intelligence, perhaps the Patriot Act’s requirement that the FISA Court approve the seizure of Americans’ business records could be dispensed with, as well. If there is a foreign intelligence exception for searches of Section 702 data, why not a similar exception to the rules established by the Privacy Act for handling personal information about Americans collected by government agencies? One by one, we could see this gaping loophole start to insert itself in the body of laws and policies that has been established over the past four decades to protect Americans’ privacy.

This is not what “reform” of Section 702 should look like. To be sure, the bills’ sponsors are attempting to mitigate an unconstitutional practice by ending one part of it. But compromising on constitutional rights is a dangerous game. When the USA Liberty Act goes to markup, the House Judiciary Committee should correct this misstep and amend the bill to affirm that Americans are entitled to the protection of a warrant in all cases.

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