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Experts Available: House Judiciary Committee Votes to Permit Warrantless Surveillance of Americans

The USA Liberty Act, which passed the U.S. House Judiciary Committee today, leaves in a place a loophole permitting warrantless surveillance of Americans’ communications.

November 8, 2017

Today, the U.S. House Judi­ciary Commit­tee held a markup of the USA Liberty Act. The bill makes several changes to Section 702 of the Foreign Intel­li­gence Surveil­lance Act, a law that, although nomin­ally targeted at foreign­ers, in prac­tice allows the govern­ment to collect large amounts of Amer­ic­ans’ elec­tronic commu­nic­a­tions without secur­ing a warrant.
 
The bill aims to strengthen protec­tions for Amer­ic­ans’ privacy. However, many civil liber­ties groups, includ­ing the Bren­nan Center for Justice at NYU School of Law, have expressed concerns that the reforms don’t go far enough. The bill does not fully close the “back­door search loop­hole”—the prac­tice of govern­ment offi­cials from multiple agen­cies sift­ing through Section 702 data to find the commu­nic­a­tions of specific Amer­ic­ans. Even though the bill requires FBI offi­cials to obtain a warrant before access­ing Amer­ic­ans’ commu­nic­a­tions in some cases, it contains excep­tions for “foreign intel­li­gence” and national secur­ity that are likely to swal­low the rule, and it places no restric­tions on searches by the NSA, the CIA, or the National Coun­terter­ror­ism Center.
 
At markup, Reps. Ted Poe (R-Texas) and Zoe Lofgren (D-Calif.) offered an amend­ment, which the Bren­nan Center supports, to strengthen the bill’s “back­door search” fix by requir­ing a warrant to access the content of Amer­ic­ans’ commu­nic­a­tions in all cases and by requir­ing a court order to access certain metadata. The amend­ment failed by a 12–21 vote after the bill’s spon­sors warned support­ers of the amend­ment that adopt­ing it would doom the bill’s chances of getting a floor vote.
 
The bill passed the commit­tee by a vote of 27–8.
 
“It’s deeply disap­point­ing that 21 members of the House Judi­ciary Commit­tee voted against clos­ing the back­door search loop­hole,” said Eliza­beth Goitein, co-director of the Bren­nan Center’s Liberty & National Secur­ity Program. “Twenty of the 33 members have previ­ously voted for such a meas­ure, but many of them made a polit­ical calcu­la­tion that includ­ing this change would prevent the bill from getting a floor vote. That was a mistake. The House Judi­ciary Commit­tee should not be codi­fy­ing broad warrant­less surveil­lance of Amer­ic­ans’ commu­nic­a­tions, regard­less of the polit­ical dynam­ics.”
 
Read more about the Bren­nan Center’s work on Section 702.
 
Read more about the Bren­nan Center’s work on Liberty & National Secur­ity.
 
For more inform­a­tion or to sched­ule an inter­view, contact Naren Daniel at (646) 292–8381 or naren.daniel@nyu.edu.
 

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